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Someone takes a photo of themselves in their friend’s bedroom, without their friend’s knowledge or consent, and posts it online. Some of the art on the wall is handmade by the friend, and was not meant to be shared online. Does the friend have any rights in getting social media to take it down?

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    Which jurisdiction (country, province, state etc) is this in?
    – user35069
    May 24, 2021 at 15:52

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This answer is under U.S. law, which would apply to many leading social media platforms even if the posters were not located in the U.S. since most of them are based in California and have a choice of law term in their terms of service (TOS).

There are some jurisdictions that impose liability on someone for secretly taking photographs of someone else without their permission. These laws generally impose criminal and/or civil liability on the person taking the photo without the permission of the subject of the aspect of the photo that is problematic, without regard to who owns the premises.

Since original artwork has a copyright by operation of law, taking a picture of it without permission and distributing that picture to the public on social media could be a copyright violation. But standing to seek remedies for copyright infringement would belong to the copyright owner, i.e. usually the author of the copyright or a transferee of the copyright (in this case the friend), and not to the homeowner, if the homeowner is someone different than the copyright holder of the art.

Among other things, the friend who is the person who made the art could validly file a takedown notice under the Digital Millennium Copyright Act with the Social Media company in question.

There are common law privacy torts (i.e. grounds for private lawsuits) for public disclose of private facts. But normally, this would not extend to the appearance of someone's bedroom unless there were an express non-disclosure agreement, or a relationship (e.g. confessional priest, attorney, psychotherapist, treating physician) to which a duty of confidentiality arises by operation of law. The common law right would normally extend only to embarrassing private facts.

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  • The mention of choice of law is potentially confusing: 1. Contractural terms can’t bind 3rd parties like the aggrieved bathroom owner and 2. Choice of law only restricts the law the contract is interpreted under - other laws, like copyright, apply as the multiple legislatures intended.
    – Dale M
    May 24, 2021 at 20:43
  • With respect to social media related remedies, the locus of the provider and its TOS, at a minimum mean that it will observe U.S. copyright law and the DMCA. Since all users agree to the TOS, it would be natural for copyright choice of law issues presenting in this manner to be resolved that way as well. The friend-victim might be (probably is) a user party to the TOS, as surely must also be the uploader photographer. Other copyright or private law could be applicable, but in the case of wrongful posting of social media, probably wouldn't be applied that component of the dispute.
    – ohwilleke
    May 24, 2021 at 20:48
  • my bathroom in Azerbaijan. I’m not a Facebook user. I sue Facebook for copyright violation in Azerbaijan. You can stick your TOS and the DCMA where the sun don’t shine
    – Dale M
    May 24, 2021 at 20:51
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    @DaleM Getting jurisdiction over Facebook in Azerbajian let alone enforcing a judgment in such a case would be difficult or impossible.
    – ohwilleke
    May 24, 2021 at 20:55
  • Why would I sue Facebook USA when I can sue their Azerbaijani subsidiary? They are definitely subject to local law.
    – Dale M
    May 24, 2021 at 22:51

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