Who owns your face? Social media mobs raise new privacy concerns
Who owns your face? Social media mobs raise new privacy
concerns
By Ethan Epstein - The Washington Times - Wednesday,
January 23, 2019
ANALYSIS/OPINION:
You might own your car, your house, your pet and your
401(k). But you don’t own your own photographic image.
That’s one of the lessons of Rashomon on the Potomac, the
bizarre fracas that occurred over the weekend on the National Mall involving
Omaha elder Nathan Phillips, the Black Hebrew Israelites and a group of boys
from Covington Catholic High School in Kentucky.
The matter shot to national attention after a short video
was posted on Twitter depicting (part of) the incident. The focal point of the
video was the image of a drumming Mr. Phillips standing up close to one of the
students, who was donning a “Make America Great Again” cap.
The boy, it was widely said, was “smirking” throughout
the encounter. That smirk was blasted across the globe. Eminences such as Reza
Aslan, a creative writing professor who plays a religious historian on
television, deemed the boy’s face “punchable” to his nearly 300,000 Twitter followers.
You’re not allowed to plaster a (punchable) photograph of
Kanye West on a cereal box without his permission. That’s because “U.S. law has
for many years recognized a right of [legal] action if a person’s image is used
for commercial gain,” explains Peter Swire, a law professor at Georgia Tech and
a longtime expert on privacy issues.
You can’t monetize somebody’s image without his
permission or use his photo to even imply that the person supports a product.
This is dubbed the “right of publicity.”
But absent blatant commercial use, you can distribute a
person’s image. The First Amendment applies broadly here. It’s what allows, for
instance, the tabloid media to operate — as Amazon honcho Jeff Bezos has
unhappily learned recently.
And unlike libel law, which applies different legal
standards to public and private figures, the First Amendment guarantees a right
to distribute imagery without making any such distinction.
I’m allowed to photograph a celebrity and post it online
as I am a random stranger. That’s why appalling websites such as “People of
Walmart,” which holds up lower-middle class Americans for ridicule, are
allowed.
Where the law does make take exception is if one were to
post a fake or doctored image. That behavior is legally actionable. So is
distributing imagery that portrays events in a “false light” — where the image
is true but presented in a dishonest or manipulative manner.
It’s said that certain cultures believe taking a
photograph steals one’s soul. We don’t need to go that far without recognizing
that there’s something unsettling about the notion that we don’t control the
distribution of our own image.
Indeed, even within the framework of the First Amendment,
exceptions have been carved out that recognize this fact, like the aforementioned
right of publicity.
The criminalization of “revenge porn” — the online
posting of prurient images of one’s former lovers — is another point of
complication. Revenge porn has been banned in more than half of the states.
Yet, like the images shot on the National Mall, revenge
porn is “true,” suggesting that First Amendment rights apply.
Danielle Citron, a law professor at the University of
Maryland and leading proponent of revenge porn laws, argues that this is not
so, noting in a paper that “certain categories of speech can be regulated due
to their propensity to bring about serious harms and only slight contributions
to First Amendment values.” That standard, of course, would seem to allow the
criminalization of any manner of photographic distribution beyond revenge porn.
The Covington students, for instance, have faced death
threats as a result of their images being distributed. This certainly qualifies
as “serious harms.”
The First Amendment was crafted long before every
American became an amateur photographer and broadcaster, walking around every
day with a personal television studio in his pocket and, thanks to social
media, a film distribution company, too. Privacy scholars should think of ways
to give people more control over the distribution of their own image — whether
it’s “punchable” or not.
• Ethan Epstein is deputy opinion editor of The
Washington Times. Contact him at eepstein@washingtontimes.com or on Twitter
@ethanepstiiiine.
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