The newsletter of the ISBA’s Standing Committee on Women and the Law
A wary world in Web 2.0
The emergence of new technologies always seems to be accompanied by casualties or victims of the darker, more nefarious uses of such technologies. Social networking sites prove no exception. Nor does the convergence of developments in digital photography and online platforms for the publication of photography and other visual media. This article briefly discusses recent injuries and litigation emanating from these developments.
Over the last few years, my practice has handled a number of privacy related litigation matters. Of these, a small percentage focused on the misuse of photographs. As examples, the cases involved the misuse of a child’s photograph; the unauthorized taking and publication of photographs of a nude model sitting for a college art class; and, the unauthorized distribution of private, intimate photographs by e-mail.
With respect to this latter example, an individual distributed private, intimate photographs of his former partner naked to her employer, friends, and family. However, the distribution occurred solely by e-mail.
With the advent of social networking sites such as Facebook and MySpace, the distribution channels available to someone intent on causing harm through the distribution of private, intimate photographs has increased in choice, type and target audience. Where several years ago the distribution recipients represented a small, calculable number of individuals, the emergence of sites such as Facebook and MySpace has dramatically enabled media to reach thousands (if not millions) of individuals in a short amount of time. Unfortunately, this changing landscape provides individuals who wish to cause an individual harm a myriad of choices through which to do so.
Indeed, my firm has seen an increase in the number of situations where a former boyfriend, fiancée, spouse or partner has used Facebook, MySpace, YouTube or similar Web sites to upload private, intimate photographs or videos of their former (and sometimes existing) partners. Not only does the publication of media to these sites increase the extent of the distribution, some viewers of the photographs will often copy or download the photographs for their private use. Additionally, some viewers proceed one step further and upload the media to other sites – including adult-oriented Web sites. For example, private, intimate videos often find their way onto sites such as <and < >, which allow user-submitted material. These sites often have sharing relationships with other adult Web sites. Consequently, a single publication can quickly become viral and, without proper handling, uncontrollable.
Responding to situations such as those described above requires precision and diligence. For, the most immediate objective should be the removal of the content wherever it can be found. Although litigation may later ensure, the primary objective for the attorney representing the client should be the mitigation of harm. However, in doing so, the attorney must absolutely be cognizant of the need and procedural methods required to preserve the evidence should the client later wish to file suit. This preservation should occur on two fronts: observational and systemic. The content of the Web pages containing the unauthorized content should be preserved. Additionally, efforts need to be made to ensure third party preservation of back-end evidence related to the publication of the unauthorized content.
At the same time, it is paramount that legal counsel be aware of the client’s psychological state of mind. For, the unauthorized publication of private, intimate photographs represents an invasion of one’s privacy and betrayal of one’s trust. The extent to which these violations affect an individual will vary from person to person. However, there exists no dispute that the individual victims in such circumstances have been violated. Consequently, counsel must recognize this fact, be cautious and observant in counseling their clients, and ensure that every decision considers the ramifications of such a violation on the client’s psyche.
Apart from the embarrassment of knowing the photographs and/or videos exist (even for a limited duration) on the Internet, the potential for the photographs and/or videos to remain on the Internet for a significant amount of time cannot be understated. As previously discussed, the media can be copied from site to site. Additionally, Google and other search engines may cache the content of some Web sites and their respective pages. Because of this, an individual’s name could be associated with the media. When one searches the individual’s name, the unauthorized content could appear in search results. The impact of this is significant. Potential employers and other parties interested in reviewing an individual’s history on the Internet can often find content that – although published without authorization – can lead to adverse consequences, such as a lost employment opportunity or terminated employment relationship.
Regrettably, the number of cases involving the publication of private, intimate photographs will likely continue to increase. Given the potential long-term harm that can be caused by such publications, proactive measures should be taken to educate individuals on the dangers of allowing themselves to be photographed. Consequently, in addition to reactive measures involved in the removal of content and pursuit of damages through litigation, our firm also counsels proactive measures that should be implemented. In this Internet-era, our mindsets must be Internet focused. In other words, an individual must consider the Internet-related consequences of any conduct in which he or she engages. “Do I want this photograph on <New York Times?” For those who remember the X-Files, it is difficult to ignore the mantra “Trust No One.”>?” “Do I want this e-mail on the front page of the