Facebook Photos and Media Freeloading: An Unfair Deal

The user-oriented approach to copyright law expressed in CCH Canadian Ltd. v. Law Society of Upper Canada cannot be used to justify media freeloading under the guise of fair dealing.  After the death of Stefanie Rengel, four major Toronto newspapers ran photos of the victim that were taken from Facebook.  Does this practice falls under fair dealing or freeloading?  Applying the facts of this case to the six factors of fairness outlined in CCH, it is evident that this practice does not constitute fair dealing.  

The publishers’ use of the photos may fall under one of the enumerated grounds of fair dealing.  The newspapers could argue that their use of the photos is for the purposes of “news reporting” under Sec. 29.2 of the Copyright Act, provided that they sufficiently acknowledge the source of the photo.  The analysis would then move to the second prong – whether this dealing can be considered “fair.”  

Purpose

The purpose of this dealing was to relay a current event, even if it is in a commercial context.  However, one could also argue that the purpose of including a picture of the victim was to sell more newspapers.

Character 

The publishing of the victim’s photos in major newspapers around the city ensured that multiple copies were made and widely distributed.  To recognize such a practice as an industry custom/practice would allow large publishers to freely use people’s photos without consent in future news stories.  

Amount

Fair dealing can be applied even if the whole work is copied, as is the case with photographs (Allen v. Toronto Star).  

Alternatives

Instead of taking the photos from Facebook without the owner’s consent, the newspapers could have waited for Toronto Police Services or the victim’s family to release pictures.  Even if there were no non-copyrighted works available as an alternative, the use of the victim’s photos was not reasonably necessary to achieve the “ultimate purpose” of news reporting.  The newspapers could have just as easily reported the story without the photo.  This is distinguished from the fact scenario in Allen, where the use of the photo in question was necessary for comparison.  The image contrast was the thrust of that article, while it was not the case here.  

Nature of the Work

While the victim’s pictures were not confidential in nature, they were also not meant to be as widely disseminated as they were.  This is exacerbated by the fact that the pictures were used without the consent of the victim’s family.  

Effect on the Work

While there was no market substitution here, the widespread distribution of these pictures has the potential to inflict considerable emotional anguish on the victim’s family and friends.  

It is evident that this practice does not meet the standards of fairness set out in CCH.  Protecting the rights of the user (the publishers of large newspapers) cannot come at the expense of a victim’s interest or the privacy concerns of the millions of people on Facebook.

2 Comments
  1. Although many of Justin’s arguments are cogent, I feel that perhaps a more contextual and open ended application of some of the factors from CCH could bring out a different result than what was argued.

    Purpose: Although newspapers themselves may be considered commercial, their purpose in using the photos may not be. One could argue that it was to commemorate the slain teen’s life or in addition, to spread the word that she had passed away. In addition, the use could have served the function of showing support. Finally, one could argue that it was a method by which the public was able to criticize the problem of violent crime in Toronto.

    Alternatives: It is argued that the use of the photos were not reasonably necessary to achieve the ultimate purpose. Here, one could persuasively argue that it was this explicit use of the photos that adhered to the purpose of news reporting, enabling identification of the victim via photo and text.

    Nature: We do not have evidence that the photos were not meant to be widely distributed. In addition, the fact that they were on facebook greatly mitigates against this argument.

    Effect: The effect of using these photos (though it may cause anguish for family and friends) could also serve a larger function in two main ways. Firstly, the use of the photos could serve an informative function, to inform her family and friends of her death. Second, the photos could serve as a trigger in alerting potential witnesses to come forward. Many times, this along with intense media publicity is what helps investigations and/or cases progress.

    My point is that the standard of fairness articulated in the CCH case is not rigid but flexible. For every point there seems an equally strong counterpoint. It may be that what seems ‘fair’ is greatly dependent on who’s side you are on: the user or the creator.

  2. Without delving into a full analysis, the “Effect on the Work” factor considers effects “on the work,” and would not include considerations such as “emotional anguish on the victim’s family and friends.”

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