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Private or public pictures?

Steve Herrmann Steve Herrmann | 11:14 UK time, Thursday, 24 January 2008

When is it acceptable for us to make use of personal pictures and video available on the internet? In the past, personal pictures of members of the public who become the subject of news stories (particularly tragic events) have usually only been available if supplied by family or friends.

Facebook pageWith the growth of social networking and personal websites, it has become far easier for the media to get hold of such pictures. If we do use them, can this be justified? This is an issue we're giving some thought to at the moment, and I'd be keen to hear your views.

We don't yet have a definitive policy but my feeling is we need to tread carefully, and where people have posted personal pictures or video in a space which they might reasonably expect to be accessed only by friends and family, I think we need to be mindful of that. There might be an overriding public interest in using the picture and publishing it more widely, say, if we were working on a story about someone involved in criminal activity and sought by the police (though we’d still need to verify it). But where there isn't, it seems right to seek permission first. We also have to be aware of copyright around any use we want to make of pictures and video, and this will need checking case by case.

The boundary between what's public and what's private isn't always easy to define online, and I think it’s also true to say it’s not something people always give a huge amount of thought to when posting. For most people, most of the time, the media and wider public won’t be focusing on them. That gives them a certain anonymity – nicely described by Alf Hermida as "privacy through obscurity".

That quickly changes if the spotlight of media interest turns their way, for whatever reason.

Some will say that - by definition - there isn't really anything private if it's there and accessible by others. But that still leaves the question of what use people other than the intended audience can legitimately make of what they find. And people use different sites for different reasons - they might be on Facebook just talking to friends, on Flickr sharing photos with their family and on MySpace to publicise their music. Would the same considerations apply for each?

These are all things we’re still discussing – I’ll keep you posted on how it develops.

Comments

  • 1.
  • At 12:18 PM on 24 Jan 2008,
  • DaveH wrote:

If you go public, whether a celeb or Facebook member, you are putting material in the public domain. So, there should not be a problem over it. If you want to limit something, you just put a request up saying "not for republication". It is quite simple.

The easy answer is that isn't an issue of what purpose they had in mind when they published the photo, but whether they *have* licensed you to use it. Flickr has the best interface for this it allows the user to easily set which of a number of licences both creative commons and otherwise they are publishing the images under. Whilst other sites like Facebook in general don't explicitly allow users to set licences or display copyright notices, it doesn't stop those images being copyrighted. The BBC wouldn't use an image belonging to one of the big press agencies without properly licensing it just because a newspaper has published it. You touched on copyright briefly in this post, but in most cases it is the only issue.

  • 3.
  • At 02:28 PM on 24 Jan 2008,
  • Jay Furneaux wrote:

People should still have the right to say if they want their picture used or not. Complications would also arise if a third party, who technically is the copyright holder, took the picture.

Flickr automatically applies copyright to an uploaded image, the poster has to choose whether to make it open to use by others (without permission being asked or payment sought) by applying a Creative Commons licence.
However a CC licence usually allows free usage (with attribution) if for non-commercial purposes only and I’m unconvinced that news – even from the BBC - falls into this category. (The BBC competes in a commercial field as the rivalry between ITN’s ‘News at 10’ and BBC’s ‘Ten O’clock News’ shows.)

If a person is wanted by the police then perhaps it should be the police that take the decision whether or not to use an image and release it to the media; not the media’s whose prime motive would be get a scoop and improve ratings. By all means direct the police to it, but the decision should be theirs.

Theft of images is starting to become a problem on the web, not least for use in identity theft where an (stolen) image accompanies (stolen) information to build a more convincing profile. Pishers that target those on dating sites use this technique, asking for email addresses then sending an introductory letter complete with attractive photograph, all completely false and stolen from someone else. (It usually leads up to a request for, or a scam of some kind seeking money or bank account details.) Don’t blame the person in the photograph, they’re victims too. I have also heard of cases where people on a dating site used a picture stolen from someone else to improve their chances.

Personally (my picture is on a social networking site, but taken by a photographer friend who would own copyright) I would not be happy about it being used without permission, whatever the reason. The same applies should I have uploaded my photograph be any other website. I’d also see it as an invasion of privacy, as if someone has taken a photograph from an (physical) album.

To be honest I don’t know if I’ve given a social networking site permission to release a photograph without my permission, the small print of the terms and conditions may be something the public should pay more attention to.

If I send a picture – weather, landscape, event etc – to the BBC for the photo section of this website then my view would be that I have chosen to give to permission to use it and wouldn’t mind if it was used at a later stage as a generic image away from the original context. But I imagine photographers that make a living from supplying stock images would be unhappy; but they may have to get used to the fact that the market has changed. Perhaps those sending images should have the right to opt in to being asked if the image is used again at a later stage.

Video from YouTube is more difficult. It’s been put up to be viewed, can be saved by individuals or embedded in other web pages e.g. Facebook’s Funwall etc. Copyright or control over usage has more or less been given away, but this is for non-commercial use; if used in TV news or a documentary I’d see it as being for commercial use and again permission should be sought.

Final thought; the idea of copyright on the Web is being eroded day by day.
One exam body that issues FE syllabuses for teaching people Web skills now includes copying and pasting images (technically illegal) in its syllabus.
The issue may look very different in ten years time, particularly if the commercial news services use images regardless; figuring that compensation over any rights issues is far outweighed by bigger gains.

  • 4.
  • At 03:41 PM on 24 Jan 2008,
  • Jeff Salisbury wrote:

In most cases photos uploaded to a facebook profile are not visble to the general public, only to those who have (by permission of the profile user) been added as a friend.

I'd say those pictures are private and therefore shouldn't be used without permission.

place that information on the internet and it is published. that means public access and use. it is also liable to be floating around out there for some time... think of it as if you had published a book. then changed your mind and tried to collect all the copies back... difficult !

  • 6.
  • At 04:47 PM on 24 Jan 2008,
  • Ewan Mac Mahon wrote:

Gonzo's right - the only thing that matters is the copyright licence (if there is one), since it acts as both an actual restriction on what you can do with the material, and as an expression of its creator's intent about what you do with the material.

If material has been placed under an open licence then you've explicitly been given the OK to use it, if it hasn't you can't use it anyway.

Material is not in the public domain just because it's posted online.

place that information on the internet and it is published. that means public access and use. it is also liable to be floating around out there for some time... think of it as if you had published a book. then changed your mind and tried to collect all the copies back... difficult !

This is a new ethical area for journalists, as there is a tremendous amount of personal information available online. All of it may not be on the one website, but any good journalist will be able to follow our digital breadcrumb online.

The growth of social networking sites is forcing us to redefine what we mean by private. Someone may consider their photos on Facebook as private, but yet that much information is online, archived, cached and searchable.

As well as the issue of "privacy through obscurity", there is also the question of what danah boyd calls "intended audiences". In other words that when someone posts something online, they may not intend for the material to be consumed beyond the intended audience of family and friends.

Perhaps people confuse ease of access to an image with freedom to use it. But if you think of for example images in books and magazines, it's not like you can cut them out, scan them and reuse them in the media. As most print media don't even bother to credit the images anyway, one should look for copyright info within the publication. Same goes for the websites where the images are placed.

  • 10.
  • At 06:06 PM on 24 Jan 2008,
  • Sean Lee-Amies wrote:

Well, in my opinion, when you post up pictures on myspace, you aren't expecting for anyone to make a big deal about it. You certainly aren't expecting people to publish them to a broader audience.

It doesn't matter about copyrights and protections. The simple fact of the matter is that if they wanted to it published in an article, they would have done it. People mostly use Myspace and other such internet sites to share stuff between their friends.

The simple answer to this question is, you should only ever use media belonging to other people when you have their written permission.

It's really that simple.

  • 11.
  • At 06:56 PM on 24 Jan 2008,
  • Joe Higman wrote:

If someone puts a notice up in a place where it can be seen from a public place, they have no right to regard it as private or secret. The same applies to the Internet. Something posted on a member-only forum is different - that depends on the agreement members make when they join. Social Networking sites seem to be a bit in between, and maybe the rules need to be defined.

  • 12.
  • At 06:57 PM on 24 Jan 2008,
  • Gregor wrote:

One thing you need to be 100% sure of is that the picture you've acquired is actually a picture of the person in question. There's no guarantee that someone's profile picture on Facebook is actually them!

  • 13.
  • At 10:20 PM on 24 Jan 2008,
  • S Martin wrote:

Just because a picture appears on the Internet does not mean that it is legal, or ethical, to just right-click and save. Should you wish to use a photograph then you should at least get permission in writing and credit the source in your article.

  • 14.
  • At 11:52 PM on 24 Jan 2008,
  • robert ronson wrote:

I'm surprised that the BBC does not understand that all pictures are copyrighted and they need a licence to use them. Anything else is theft. Is the BBC happy to steal other pe.oples property without regard to copyright law. I am a photographer and any of my photos have a licence. If the BBC stole them I would have no hesitation in suing them for breaching my copyright.

  • 15.
  • At 09:09 AM on 25 Jan 2008,
  • Alex Swanson wrote:

Surely this is a no-brainer. You conform to any copyright conditions specified on the website; if none are specified, or in doubt, you assume that you do not have permission.

Maybe I'm being nasty, but I suspect that you believe that - being the BBC - you are somehow "special", that you are especially virtuous and should therefore allow yourselves a latitude that perhaps lesser mortals would not. If so, the answer is straightforward: you aren't and you shouldn't.

  • 16.
  • At 09:15 AM on 25 Jan 2008,
  • Toners Bruxtin wrote:

Berne convention already exists and is very appropriate still. The copyright is with the owner of the picture (and that is the person who made the image unless corporate copyright was sold or given away) and breach of copyright is the same for stealing photographs as it is for stealing music.
Image pirates are the same as music pirates no matter who they are or what authority they represent.
For example: buying a painting is not buying the right to have reproductions made of it. Permission (usually in writing) from the originator must be obtained.

(Presumably this is another reason why why a dead artist is worth more to a collector than a live one?)

The originator of a photograph of a person must obtain permission (usually in writing, a release form) from that person to publish or exhibit that picture anywhere.

All images are copyright unless otherwise stated.

Be carefull some music pirates have been fined large amounts of money!

"At 04:47 PM on 24 Jan 2008,
Ewan Mac Mahon wrote:"Material is not in the public domain just because it's posted online."
Exactly so...
and i ask the BBC to remove this quote if Ewan Mac Mahon requests this or if the BBC sees fit to do so anyway.


  • 17.
  • At 02:39 PM on 25 Jan 2008,
  • Martin wrote:

Steve

I'm sure it'll be fine for to just lift and use what you want from 3rdparty sites just as you and the BBC's brand protection team will have no issue if BBC licence fee payers start lifting and republishing content from the BBC website.

  • 18.
  • At 02:52 PM on 25 Jan 2008,
  • Nick Evans wrote:

I suspect that if ordinary members of the public took BBC images (such as episodes of Dr Who, or a football match), and published them on-line, your lawyers wouldn't have a great deal of difficulty in deciding whether this was an infringement of your rights.

You should treat others as you'd like to be treated yourself.

And, copyright issues aside, electronically stored photos are clearly personal data. You're probably in breach of the fair processing principle of the Data Protection Act if you don't seek consent.

As far as I am concerned if I post my photo publicly on the web then in effect I am granting permission to anyone to view this unless I restrict access to it in some way. The copyright of the photo remains with me ( or perhaps with the person who took the picture). Posting my photo up does not grant the BBC or anyone else licence to then take that photo and use it elsewhere - whatever the perceived public interest. Does the BBC not consider that it has copyright over its own material - does it support the free, unfettered use of BBC copyright material by any other internet user? No.

The BBC has no more right to take my photo and use it elsewhere than any other internet user. Perhaps if the BBC or other news outlets do this then someone should sue for copyright infringement.

  • 20.
  • At 09:02 PM on 25 Jan 2008,
  • Robert wrote:

I find some of the comments amazing. The idea that an image is 'in the public domain' just because someone puts it online.

Not so, the creator of an image owns the copyright automatically unless he/she has explicitly given away some rights. Just because an individual who has uploaded snaps to MySpace is less likely to sue for breach of copyright, doesn't make it any more justifiable.

Of course the BBC could publish a screengrab of the whole Myspace page including the photo. This is the online equivalent of News24 holding up a page from a newspaper that includes a photo (a practice that some photographers are not too happy with!).

You are more likely to get away with a tiny thumbnail image that links to the bigger one elsewhere. Which is what Google does.

If someone uses your photo, issue them with an invoice. Then, if necessary, enforce non-payment through the small claims court. I'm sure you would win, as there's no defence.

I feel you are missing something by asking the question in this way. As far as I understand fair dealing, you can use copyrighted images for news reporting. How about a bit of context and explain the issue more, so that assumption such as being made by DaveH, which is that everything is public domain if on the web, are not made so easily. How about explaining other licences such as CC

It looks like you are asking if private images can be used, those that you only have if someone else has grabbed them from the web because they are a 'friend'. No, not without permission in this case as they are not expecting them to be used under fair dealing.

If the picture belongs to someone who is dead. Surely there's no copyright anyway?

Many a times the pictures picked up from online sources are edited and then used without obtaining any permission from the original source. Such a practice cannot be curbed as the photo has been modified.

Put simply, the issue of copyright is the greatest. If you ask someone and they grant you the use of that photo or image, then that's fine, all above board and ok. But if you use it by simply taking the photo from them (be in Facebook, Flickr or any other source), it breaks a number of statues, not least Copyright legislation in the UK and the Digital Millenium Act in the USA - something that affects any website which uses servers in US jurisdiction, something the BBC has previously said it does.

  • 25.
  • At 01:39 AM on 28 Jan 2008,
  • Robert wrote:

I would refer you to this excellent article:

'The UK Copyright Act is in fact very similar to the American one when it comes to news reporting. There is a “fair dealing” exception in the UK for “reporting current events”...

The UK news reporting exception varies from US law in one crucial respect, however. It doesn’t apply to photographs...

here if you see your photograph being used in a news report without your permission, you can be certain that you won’t have to have an argument in court about “fair use”. Fairness doesn’t come into it.'

http://www.epuk.org/Opinion/715/photojournalism-and-fair-use

  • 26.
  • At 05:37 PM on 29 Jan 2008,
  • Gina wrote:

Governments are allowed to use CCTV in the streets, clubs shops and offices use it on private property. But individuals haven't given their permission for their image to be recorded - or used.
In such an environment, anyone who posts a picture or comment on the web has to be prepared for that to appear publicly.If they won't take the risk, they shouldn't do it.

Thank you for all your comments so far. I've responded to them in this new blog entry.

This post is closed to new comments.

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