Facebook Free-For-All: Is the Media’s Use of Photos Fair Dealing or Freeloading?

The pervasiveness of the internet and the rise of online communities present new challenges to copyright law and the notion of fair dealing.  For instance – In the aftermath of the stabbing death of 14-year old Stefanie Rengel, all of Toronto’s daily newspapers ran photos of her taken from Facebook. Permission was not granted (or sought) from the owners.  Does it matter?

Not if it’s fair dealing.

Section 29.2 of the Canadian Copyright Act provides a fair dealing exception for news reporting (as was the use in this case).  In order for the exception to stand, however, the source of the dealing and the name of the author must be mentioned.  In this case, the name of the photographer never appeared beside the National Post’s front-page photo.  Instead, the caption simply credited “Facebook”.

The second leg of the fair dealing test requires that the use be fair.  The court in CCH* considered that the availability of alternatives to the dealing is a relevant factor in making such a determination. Well, in this case, there was an alternative: Toronto Police Services released a photo of the girl.  Indeed, that very photo was used on the front-page of Toronto’s other daily newspapers.  It is difficult to see, then, how additional Facebook photos might be construed as necessary as they did not further the news story and their dissemination did not address any readily apparent public policy concerns.  Even if the facts are considered liberally, fair dealing seems like a stretch.

So, if it’s not fair dealing, is it freeloading?

In this information technology era, the distinction between public and private is increasing blurred. The common argument abounds that users voluntarily choose to upload materials online and consequently release it into the public domain.  Such information is fair game for reporters. If people did not want others to have access to their materials, they would not put them online.

But reality is rarely this clear-cut.  The fact is, most users do not read the terms of use when they sign up to use a service like Facebook.  This is not to deny that individuals bear a public responsibility for the content they post online, but not all bloggers seek fame.  Some desire and intend to remain private.

Social networking sites even have mechanisms to allow users to protect their privacy.  If users choose to restrict who may view their profile and the content therein (for example, only friends and family), should it be inferred that they do not desire their information to be accessible to the world?  Perhaps the media should consider such behaviour in deciding whether or not to use content posted online.

Regardless, in cases where the photo is not necessary to the news story, it does not seem unreasonable for the media to acquire prior permission from the owner.  It is only a matter of time before fair dealing post-CCH is put to the test.  Perhaps then we will have greater clarity on the issue of digital door-stepping.

* CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. No. 12.