Facebook photo free-for-all. Is media's use of photos fair dealing or freeloading?

As a result of the recent proliferation of social networking sites, a debate has emerged over the media’s ability to use photos added to user profiles, in the absence of express permission granted by the owner. Exacerbating this issue was a recent incident where all four of Toronto’s daily newspapers published articles regarding the murder of a young girl and embedded within the articles were pictures of the deceased taken from her Facebook account.

Although Facebook’s terms of use state that by uploading any photos to the social networking website, the user has effectively granted Facebook a licence, there is no doubt that copyright remains vested in the owner of the photo.

However, the newspapers contest that their conduct is acceptable as it falls within the “fair dealing” provision under s. 29.2 of the Copyright Act. Section 29.2 specifically states, “Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned: (a) the source; and (b) if given in the source, the name of the (i) author, in the case of a work.”
In my opinion, this statutory exception is overbroad and not every incidence of news reporting is of sufficient severity to warrant such intrusion on the rights of a photograph owner. The situation would have been different if the deceased had been abducted rather than murdered and these photos were being lifted from Facebook and used for the purpose of locating her whereabouts. This would likely be a justified use of copyrighted material without permission of the owner because the objective was a sufficiently urgent one.

Unfortunately in the present circumstance, the police were aware that the deceased was no longer living by the time the articles were published. Therefore, there was no sense of urgency that required the immediate notification of the public via the rapid dissemination of photos lifted without permission from her Facebook profile.

One would assume that, given the reputation of these newspapers, they would be well-versed regarding the intricacies of copyright law and would know better than to use these photos that had clearly been obtained in the absence of the owner’s permission.

However, with the rapid expansion of social networking sites, it is understandably becoming increasingly difficult for the owner of a copyright to exercise the control necessary to prevent their photos from being used in ways which they do not expressly approve. In response to this, Facebook has granted users the option to customize profile-related privacy settings and allows users the ability to control who may view their profile and/or photos. If a specific user neglects to restrict access to his/her profile, this may be construed as an invitation to lift photos, whether or not this is a true reflection of the user’s intent.

Therefore, since the case law is relatively sparse in this area and the statutory language is ambiguous (as noted above), it is advisable that wide discretion be exercised before uploading photos to social networking sites like Facebook.