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If I took a potentially embarrassing photo of someone and posted it on a social media site without the person’s permission, such as instagram, could that person take legal action against me?
Also, would this be different if someone sent me the photo themselves, but still did not give me permission to share it?

This is a situation / argument between two of my friends and I’m curious on what could happen.

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    In general, if the photograph was taken in a public place (ie a place where there is not a reasonable expectation of privacy) where photography is not prohibited, and is not use commercially, no permission is required. With respect of someone sending you a photograph, you do not automatically hav the right to share it further. As they took the photograph they "fixed the image", and thus have copyright - which means they get to decide who gets to see the image. – davidgo Aug 6 '18 at 22:33
  • In the US, the answer will depend on which state the picture was taken in, and also on how it is used. I will answer more fully later, but please indicate a state. – David Siegel Feb 6 at 22:06
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Posting a photo does not require permission of the subject as long as the photo was taken lawfully (i.e. taken with the subject's permission).

Was the photo taken with their permission?

It probably was taken with their permission, unless a reasonable person would have expected privacy in their position.

Some examples of photos taken without the person's permission:

  • A photo of someone standing in their bedroom in their underwear, taken from the yard outside looking through the window

  • A photo of someone in a public bathroom, taken with a hidden camera in the bathroom

Some examples of photos taken with the person's permission:

  • A photo of someone standing on a public street saying "You don't have my permission to photograph me"

  • A photo of a friend in a friend's house, taken by another friend while at the house, assuming the photographer was not there unlawfully (i.e. was invited)

  • A photo of another student in class/on campus at school/university, taken by someone lawfully at that place.

The point is whether the person the photo was taken of could reasonably have expected privacy when the photo was taken.

If a reasonable person wouldn't expect privacy in the same situation, then you had their permission to take the photo, and then whether or not it is lawful to post (i.e. publish) the photo without their permission becomes the question.

So is it lawful to post the photo without the subject's permission?

Assuming you took the photo lawfully (i.e. you took the photo with their permission), then you are free to post it (i.e. publish it).

How about posting a photograph without the photographer's permission?

If someone else took the photo and owns the copyright, you would need their permission or to purchase the copyright from them, otherwise you could be liable to them for civil damages, even more so if you could reasonably expect to profit from publishing the photo (including adsense revenue on a blog).

It would be useful to know the circumstances of how the photo was taken and who owns the copyright for your specific example.

  • What about the case where person A shares their photo (taken by themselves) with person B and B publishes it online without letting A know? Obviously the photo was taken with A's permission but the logic of your current answer does not quite apply, does it? – Greendrake Aug 6 '18 at 23:32
  • If person A owns the copyright to the photo they could sue for damages, and it sounds like they would. – Gimme the 411 Aug 6 '18 at 23:36
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    Is it really the formal legal interpretation that "permission is given" in these cases? It seems like these are simply instances where permission (from the subject) isn't relevant to the question of legality of the act. I would think the subject of the photograph could still very well not "permit" the photo in these situations (as in your example where they explicitly say so), which could go uncontested and undoubted in court, but legally speaking this isn't relevant. – zibadawa timmy Aug 7 '18 at 5:49
  • This is quite wrong, a person does not grant permission to have their picture taken by appearing in public. But in many cases a photographer has the right to take and publish such images without permission. – David Siegel Feb 6 at 22:07
  • These cases would not apply to minors, who cannot legally give their consent/permission anywhere. – TQuile1948 Feb 8 at 17:19
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I think the above analysis misses the mark in some respects by overplaying the significance of whether you took the picture lawfully and underplaying the significance of what the photo shows.

While you're of course in a better position if you didn't commit a crime to obtain the photo, publication could still expose you to a privacy-invasion claim, either for intrusion upon seclusion or for public disclosure of private facts.

Liability would turn in large part on what exactly the picture showed. If the picture was embarrassing because it showed your friend picking her nose, that's probably not going to be actionable. If it shows her having sex, it would be a much stronger basis for liability, regardless of whether you or someone else took the picture legally.

On the other hand, publishing a relatively innocuous photo you took while trespassing probably wouldn't subject you to any additional liability, though it might be useful evidence in a trespass case.

Most of this remains true even if you weren't the one who took the picture. Regardless of what the photo showed, though, you would have to work about copyright. Unless it shows something newsworthy, sharing the photo on social media is probably going to constitute a copyright violation.

  • It's not clear what you're referring to by "the above analysis". The display order of answers is not fixed, and currently on my screen, yours is at the top of the list. – brhans Aug 7 '18 at 12:52
  • Ah, sorry. At this point, it's the below analysis, and the only other answer offered. – bdb484 Aug 7 '18 at 14:31
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    The point of @brhans comment is that answers are not supposed to refer to other answers but to stand alone. The other answer might be above yours, move to below yours, then above yours, then be edited and then deleted. – George White Jun 10 at 20:12
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You can stop a website's use of your image for three reasons: invasion of privacy, violation of right of publicity, or defamation.

Invasion of privacy can occur if you are portrayed falsely and in a highly offensive manner. For example, your photo was posted at an America's Most Wanted type of website, and you are not wanted by the law. Your privacy might also be invaded if the photo was taken by someone who intruded on you in a situation in which you had a reasonable expectation of privacy—for example, in your own home. It is not an invasion of privacy to photograph someone in a public place or at any event where the public is invited.

Another reason to stop the use is known as the right of publicity. This occurs if your image is used for commercial purposes such as to sell products or to imply that you endorse a product. If the photo is used in a commercial website—that is, one sponsored by a business or that sells products or services—the unauthorized use of your image would probably violate your right of publicity. The public must be able to identify you in the photograph.

You can also stop the website use if the photo defames you—that is, it creates a false impression and injures your reputation. For example, it would be defamatory to doctor a photo to make it seem as if you were shoplifting. The fact that an unmodified photo is unflattering is not enough to claim defamation. The photo must falsely portray you and must cause people in the community to think less of you.

Finally, if you created the photo, then nobody may publish it without your permission.

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    This answer is not correct in all jurisdictions. Different US states recognize "invasion of Privacy" and "right of publicity" to different degrees, and some do not recognize one or the other at all. I believe the same is true for various non-US jurisdictions. A valid answer cannot be given without specifying the jurisdiction – David Siegel May 3 at 16:28

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