An Argentinean Civil Court of Appeals ordered the owner of an online news portal to compensate a person whose Facebook photo was used -without his consent – to illustrate an article entitled “The MUST of the fake world: inventing a happy life on Facebook and making everyone believe that you are a genius” (translated from Spanish by Lerman & Szlak).
The owner of the portal stated in her defense that the image is public and of easy and free access, due to the privacy settings of the plaintiff. According to her, she found them through the Google search engine using words related to the topic of the article (“happiness, swimming pools, drinks”).
This is a common practice in different areas of journalism, digital marketing and content creators. At Lerman & Szlak, we advise our clients to avoid falling into this type of conduct, which may lead to unforeseen contingencies.
Returning to the case under analysis, the defendant considered that the owner of the photo cannot claim that his consent is required “(…) when its publication was previously consented and uploaded to social networks of public access (…)”. However -for several years now- it has been understood that the consent given to use an image for a specific purpose does not imply a universal and unlimited authorization to disseminate it. The Court agrees with that approach, and concludes that the fact that the plaintiff has uploaded his image to Facebook -regardless of the privacy level he has opted for on that site- or that such photo appears on Google, in no way allows a third party to use it without his approval.
Marketing and advertising agencies and other content creators need to be cautious about the images, videos and audios they use when generating marketing materials. Infringement of a person’s image rights or privacy can mean significant losses for the business, probably far outweighing any kind of profit or benefit achieved by the marketing campaign. It is always preferable to resort to search engines that offer free images not subject to third party rights, fee-based image banks or, if possible, to generate your own content.
For guidance and advice related to privacy, personal data and image rights issues and problems, please do not hesitate to contact us at [email protected].
Luciano N. Gutman and Gabriela Ruth Szlak (C.P.A.C.F. Tº 79 Fº 516)
About Gabriela Szlak
Gabriela Szlak is a lawyer (University of Buenos Aires — UBA, with honors) with postgraduate degrees in eBusiness Management from Georgetown University and the University of Salvador.