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I have a doubt regarding the privacy on Facebook and the law application. Also lawyers That I have spoken with, seem not very sure about the matter. In particular I would like to know if it is my right to ask the removal of photos of me that other people have shared in Messenger and in Private groups. If it is my right, to whom I should address the problem? To people that have shared my photos (again in private chats and groups) or to Facebook? I have already kindly asked to remove the photos to people but I have not received reply. How can I have the proof that the photos have been deleted?

In my opinion, since the photos were shared using Facebook they cannot considered private as it is an online tool and social media. What do you think?

Thank you in advance for your help!

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  • How were these pictures of you obtained? Are they private photos you took to send to somebody who shared them without permission? Pictures of you in public? Pictures taken by somebody else? – Ron Beyer May 5 at 19:04
  • The photos were taken by my ex and friends. I appear alone or with my ex during vacation or other moments. It’s not that I am naked. But they were taken in private occasions. – Vivalavida May 5 at 19:13
  • Unless you own the pictures or the pictures violate your rights/the law, you probably don't have much right to demand they are taken down just because you appear in them. Since you mention GPDR, are you in the EU/UK? – Ron Beyer May 5 at 19:14
  • Yes, I am European so the GDPR applies. If some photos were taken by me Then I have the right? – Vivalavida May 5 at 19:23
  • @Vivalavida if you own the copyright then you can sue for infringement, but personally I think it would be difficult to win a case for infringement where the infringement is in private chat between a small number of people and theres no commercial interest involved. Theres also the problem that EU courts dont like fishing trips, so you cant just say “all private chats”. Expect to pay lots of money for such a case. – Moo May 5 at 20:32
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You are trying to invoke your Art 17 GDPR right to erasure. However, this right has many limitations. As a rule of thumb, your GDPR rights might not apply if their exercise would negatively impact other people.

In this scenario, you're seeking to delete images from other people's private chats. Requiring Facebook to search their chat messages according to your instructions would likely be a disproportionate invasion into those people's privacy, unless those images are inherently illegal. Even if you were the copyright holder for these images, it would likely be disproportionate to retroactively search the chats and potentially delete images. But you can't be the copyright holder since you didn't create those photos.

All of this means:

  • Facebook will likely refuse to act on your requests.
  • Those other people will likely refuse your requests.
  • A court is unlikely to order Facebook or those other people to perform a search and delete offending images.

You are claiming that since the images were shared with Facebook that there wouldn't be any expectation of privacy. This is a valid argument in the US (see the third party doctrine). However, this argument doesn't fly in Europe in the context of the GDPR. Under the GDPR, any processing of personal data requires a legal basis, such as a specific law, the user's consent, or a legitimate interest. Facebook is bound by its privacy policy to keep private chats private. It has no legal basis to search those chats for the purpose of fulfilling your requests, unless you can get a valid court order that compels Facebook.

Most likely, you won't be able to prevent private use of these images, for example your ex shares them in private messages. However, you may have personality rights that prevent wider circulation and publication of these images. That is difficult to enforce in the context of the internet, but it's more enforceable than what you're currently trying to do. If you're in a photo and you don't like it, you can report the photo to Facebook.

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  • Thank you all for the answers. Since acting against Facebook in relation to this problem is too complicated, is there any possibility to act against my ex? At the end is him that has shared those pictures without my permission. Is it possible to “force” him in a legal way to delete the pictures and give me proof? He is the one who has control over his chats and groups. Can you suggest which are my possibilities? In addition Facebook has recently included the deletion of chats in both way, so if my ex would delete them from his chat than they would have gone both sides. – Vivalavida May 6 at 7:23
  • @Vivalavida In Germany (in case you are from there, and maybe similar laws in other countries) they have a law preventing distribution of private pics, see the links to §§ 33, 22 KunstUrhG in law.stackexchange.com/questions/61044/blackmailing-from-germany/… – UweD May 7 at 10:57
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This question cannot be answered authoritatively until these issues are taken up in court. However I believe you would have a good case. Photographs as you describe could be considered special category data. The aspects that may be relevant here are (from UK law):

  • personal data revealing racial or ethnic origin;
  • biometric data (where used for identification purposes);
  • data concerning a person’s sex life; and
  • data concerning a person’s sexual orientation.

This imposes extra requirements on the data processor. The legal basis for processing in this case are limited to:

  • Explicit consent
  • Employment, social security and social protection (if authorised by law)
  • Vital interests
  • Not-for-profit bodies
  • Made public by the data subject
  • Legal claims or judicial acts
  • Reasons of substantial public interest (with a basis in law)
  • Health or social care (with a basis in law)
  • Public health (with a basis in law)
  • Archiving, research and statistics (with a basis in law)

It would appear that facebook would not be able to meet any of these requirements. It they refuse your request it is possible you may be able to get the relevant authorities in your area (the ICO in the UK). In the likely event they are unwilling to take action, you would need to initiate proceedings yourself, which will be expensive.

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    It remains to be seen whether merely sharing a photo constitutes the platform its being shared on as "processing", and I heavily doubt that it will. I think a court would struggle here to apply the GDPR to private conversations between parties even on a third party platform - if they did, the scope for abuse would be widespread as it would bind email providers, any messaging app (including phone providers SMS and MMS), all backup providers etc etc. Add to this the fact that there are widespread tools out there which allow you to alter photo signatures so automated systems dont match them... – Moo May 5 at 20:47
  • It remains to be seen, as I try to make clear in my answer. Since automated systems are better at identifying people in photos than humans these days if they cannot do it then it would be reasonable to claim that it is not PII. Backup providers must be GDPR compliant these days. – Dave May 5 at 20:51
  • Images can be very subtly changed to break image recognition systems, which massively blurs the distinction of PII - theverge.com/2021/4/27/22405570/… Secondly, while backup providers must be GDPR compliant, you can't go to Amazon and demand that they remove images of you that Dropbox has stored on their servers, and you cant go to Dropbox and demand that they remove images of you that people are storing (and potentially sharing using shared folders!) – Moo May 5 at 21:11
  • Facebook already refuse to remove other peoples copies of chat messages that you sent (they will remove them from your account, but they wont remove them from the recipients), so I very much think that both legally and ethically this is the same situation and Facebook isn't compelled to remove the images. – Moo May 5 at 21:12
  • Thank you all for the answers. Since acting against Facebook in relation to this problem is too complicated, is there any possibility to act against my ex? At the end is him that has shared those pictures without my permission. Is it possible to “force” him in a legal way to delete the pictures and give me proof? He is the one who has control over his chats and groups. Can you suggest which are my possibilities? In addition Facebook has recently included the deletion of chats in both way, so if my ex would delete them from his chat than they would have gone both sides. – Vivalavida May 6 at 7:23

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