Whose photo is it when you have a “cover photo” ?

CYBER CRIME AGAINST WOMEN BY DEBARATI HALDER, PH.D

Every year October brings in nice surprises: the weather changes, festive season starts and women feel more encouraged to stay fit to look good during the festive season. This enthusiasm makes one eager to do lots of outdoor activities and showcase the same in their social media profile cover pictures or profile pictures which would gradually become an identification mark for the profile owner; for example, I got to see beautiful nature photography, painting exhibitions, festive photos in numerous Facebook profiles, which were further shared by other specialised social media profiles meant exclusively for photography or for online painting exhibitions.  Nonetheless, these pictures may include human faces including the profile owners in their finest attires. Needless to say, cover photos or profile photos do provide a glimpse of what the user wishes to showcase to the world; I myself made a cover photo for myself which has my convocation photograph where I was receiving my Ph.d Degree from the hands of the Hon’ble Chief justice of India.   Well, this is the age of “sharing and viewing” and those who have social media profiles should expect minimum privacy when it comes to sharing their lives with their virtual friends. But does that mean that when the social media platform does not guarantee any privacy, our pictures or contents really become public properties?  Even though there are many research papers and works are available on this issue, I thought to contribute my own thought as well.
         As we all know, any social media is duty bound to provide privacy rights to the users. But at the same time, no service provider would actually allow a user to lock everything for him/herself. This defies the ultimate purpose of the social media, i.e. to connect and reconnect people. Hence every user is given options to choose privacy set-ups that a social media channel can offer. This includes self exposure, exposure of friends and exposure of others (who are not listed as ‘friends’ of the profile owner) through one user in various levels.   The most sensitive part of such exposure is definitely the photographs. When a user uploads a picture (whether a nature photography or a picture containing human images), to his social media profile, it is generally expected that he owns the photograph; very technically, he has copyright over it; but not always! There are numerous instances of ‘possessing’ over other’s photograph and using as well as misusing it through one’s social media profile. I myself got to see many such cases which unfortunately involved creation of “Fake Avatars”  (See Halder Debarati,Examining the Scope of IndecentRepresentation of Women (Prevention) Act, 1986 in the Light ofCyberVictimization of Women in India (May25, 2013). National Law School Journal,Vol. 11, 2013, pp. 188-218 . Availableat SSRN: http://ssrn.com/abstract=2270061) of women with ‘possessed’ pictures. But there are instances when photos of profile owners have been ‘stolen’ and showcased in other’s profiles and such photo possessing does not actually intend to harm the reputation of the actual photo owner. This happens especially when the photograph is exhibited in open access platforms like the ‘cover photo’ of Facebook, or photo albums made intentionally open for public in either Facebook or Twitter.
 It needs to be understood that social media impliedly enters into a contract where it becomes duty bound to respect a user’s copy right. This is evident from not only the Terms that any social media asks a user to go through, but also from  the report option where you would get to see a small note at the bottom “is this your intellectual property”?  In India such sorts of mischievous activities are mostly regulated by the Copy Right Act, 1957 (which has been further amended in 2012). But usage of this law for social media photo right infringement is extremely rare. The reason could be that this Act is mostly used when the intellectual property infringement involves loss of profit.  However, I have seen many people get confused as to whether they can really claim their intellectual property right when the picture is showcased in open access platforms of social media and it had been ‘stolen’. I ask ‘why not’?  But I am very much aware that to prove a claim, a victim may have to run out of her patience especially when the social media itself may ask for the proof to show that the photograph was originally owned by the victim. But still then, it may prove worth fighting for and sharing the experience  as this will actually benefit not only the intellectual property researchers, but netizens in general.

Do let me know your views.
Please Note: Do not violate copyright of this blog. If you would like to use informations provided in this blog for your own assignment/writeup/project/blog/article, please cite it as “Halder D. (2013), “Whose photo is it When you have a “cover photo” ?
, 25thOctober,2013, published in http://debaraticyberspace.blogspot.com/

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