Craigslist is a popular free online website where people can advertise or seek information about jobs, personals and goods and services. Over two years ago, Jason Fortuny posted a fake ad on Craigslist, claiming that he was a female bondage enthusiast looking for someone “to give intense pain and discipline.” He then took the 178 responses that he received, 145 of which included revealing photos of men in various stages of undress, and posted them online without alteration, including email addresses and phone numbers.

While there are obvious ethical implications over the safety of personal information in responding on Craigslist, there are very important legal implications. Who owns the rights to a photo sent via email? Did Fortuny have the right to publish this material?

His victims did not believe so and one is suing him for $75,000, citing that Fortuny "acted with actual malice to harm and deceive the individuals responding to the Craigslist ad." The legal issues here are complex. Lawyers generally seem to agree that the sender of an email owns the copyright of the messages.

However, Fortuny argues that he has “fair use” of the photo since it was published in a “thumbnail” form and also claimed that the whole thing was a social research project of his own curiosity to see who would respond to the ad.

If this would have occurred in one of Craigslist’s Canadian cities, rather than Seattle, it would be a very interesting case. Under Section 29 of the Copyright Act, Fortuny can attempt to argue that his use of the responses can be justified under the enumerated grounds of research or private study or under criticism or review, since he published both the source and the name of the author.

However, his victim could argue that their moral rights under Section 14.2 would have been infringed. Under attribution, the sender of the email to Fortuny has the right to be known as the author of that work or the right to anonymity if the author wishes to remain anonymous. It is evident here that the author wanted this right to anonymity and for his email and the corresponding picture to not be widely circulated online to the general public. However, in CCH, the court ruled that research and private study fell under the provisions of fair dealing. Fortuny could attempt to argue that his “research” could justify these violations.

While Canada has set out a list of enumerated purposes, Section 107 of the U.S. Copyright Code contains an open list of purposes. The U.S. approach has been flexible, and allowed more certainty in the use of copyright material. Purposes such as criticism and research are not an infringement of copyright. Fortuny could also argue that he has a right to parody under Campbell, as his reposting and commentary of the responses would be doing just that.

In either instance, the best advice is to be careful what you post or send online, it may just come back to haunt you!