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1.) Isn’t it illegal to post photos of people without their permission?
NO, but sometimes YES. Let’s review. There are TWO important and competing legal principles involved. First is something called the “right of publicity,” and second is the right to free speech.
This is a complex area of law, so we won’t cover every detail, but the first “right of publicity,” generally involves two things: 1.) the right of a person to control how/when/where their name and image is used for commercial purposes; and 2.) a right of privacy (in other words, the right to NOT allow a certain use of the individual’s name/image). In some states such as California, the right of publicity has been written into a statute such as California Civil Code § 3344 which says, in part:
3344. (a) Any person who knowingly uses another’s name, voice,
signature, photograph, or likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods or services,
without such person’s prior consent, or, in the case of a minor, the
prior consent of his parent or legal guardian, shall be liable for
any damages sustained by the person or persons injured as a result
In short, this section says that if you want to use someone’s name or pictures, you have to get their consent. That’s due to their “right of publicity.” Other states don’t have laws like this on their books, but the courts will still generally recognize a “common law” publicity right which has the same purpose and effect.
However, because we live in a free country, the right of publicity is subject to a major exception, because of the First Amendment right to free speech, the publicity right DOES NOT apply to uses such as reporting “news” or “public affairs.” Even California’s very pro-celebrity laws expressly recognize this limitation as explained in Civil Code § 3344(d):
(d) For purposes of this section, a use of a name, voice,
signature, photograph, or likeness in connection with any news,
public affairs, or sports broadcast or account, or any political
campaign, shall not constitute a use for which consent is required
under subdivision (a).
In this context “news” and “public affairs” are an exceptionally broad term that means almost anything of public interest. That can be anything from a story about Lindsay Lohan’s most recent trip to rehab, some comment about the President of the United States (sorry Barack, we don’t need your consent to post your photo!), all the way down to a story about a local high school teacher accused of sleeping with a student or even the DUI arrest of an average citizen. This includes stories about fraternities, colleges, nightlife, famous people and those who are legends only in their own minds. Basically, if there’s a story which discusses nearly any issue of public interest, no matter how small, it is exempt from the right of publicity. This is why NBC News, CNN, Pamela Pucker, TMZ, Perez Hilton, and other news and gossip sites are allowed to post pictures, names, and stories even without permission from the person shown.
2.) What about photos of minors? Don’t you need parental consent?
NO. But law and morality are two different things.
For all you parents out there, it is a VERY common misconception that the law prohibits showing minors without parental consent. If the photo involves nudity/sex, that’s a whole different story, but in every other instance, THIS IS A MYTH; it simply is not true. Minors have the same publicity rights (subject to the same broad newsworthiness exception) as adults.
Of course, we at Pamela Pucker are reasonable and we will gladly consider removing photos of anyone on a case-by-case basis. However, please understand that just because someone is under 18 doesn’t mean that there’s something automatically illegal about posting their photos
3.) Someone posted a false story/comment about me! Isn’t that defamation?
Again, since this is not a first year law school class, we won’t bore you with the long version, but you need to understand a couple of important concepts about defamation.
First, as a general rule, opinions are NEVER defamatory. “Coke is better than Pepsi” is an opinion, not a fact. “My teacher is an idiot” is an opinion, not a fact. “The LA Lakers SUCK” is, well, that one is close to a fact, but you get the point.
Due to our First Amendment, everyone has the right to express their opinions without fear of being sued. As a result, opinions cannot form the basis of a defamation claim no matter how harsh they are. Now, like anything else in the law, there are some gray areas, but just be aware that as a general rule, a statement cannot be defamatory unless it contains a false statement of FACT (not opinion). Even then, if someone makes a statement which appears to be a fact but which is clearly intended to be a joke or an exaggeration, then courts will generally treat those statements as opinions. The most famous example of this was an advertisement placed in Hustler Magazine which said that the Rev. Jerry Falwell had sex with his mother in an outhouse. The story included statements which looked like facts, but overall it was obviously a joke. The case went all the way to the United States Supreme Court which found that Hustler was not liable for defamation since the ad was a joke, not a statement of actual fact.
Second, not every false statement of fact is defamatory. Why not? Because in order to be defamatory, a statement must be factual (not an opinion) and it must be of such a nature that it harms the reputation of the person involved. So, if you said: “Big Drew is a girl,” that statement is false, but is it defamatory? NO, because that’s not the kind of statement that would hurt someone’s reputation. Likewise, if you said, “Big Drew has won 4 Super Bowl rings,” that statement is not true, but it would not qualify as defamatory because it does not hurt his reputation.
Third, and this one is important, even if someone posts a comment which is false and defamatory, you generally cannot sue Pamela Pucker for publishing it. Why? Because of a special law called the Communications Decency Act, 47 U.S.C. § 230(c)(1).
What this law says is that if you are the operator of an “interactive website” (meaning a site that allows users to post comments), you cannot be held liable for anything that is posted on the site by users, including stories written by users and emailed to the site. If Big Drew writes something himself and posts it, he is responsible for the accuracy of his words. However, as to everything else posted by users, Big Drew is not liable for what they say.
4.) Hey! I am a photographer and one of my photos has been posted without my consent! How can I get that removed?
Pamela Pucker respects the rights of photographers and will gladly consider a takedown request. Please [CLICK HERE] for more information.
5.) OMG! There’s a really embarrassing pic of me that I want removed! How can I get it taken down?
Assuming you are the person shown in a photo (and are not the photographer), you are welcome to submit a courtesy removal request via email to: BigDrew@PamelaPucker.com. Removal is done at the discretion of Big Drew and may take up to 72 hours or more to process. Each request must include:
1. Your Name: ____________________________________
2. Your Email: ____________________________________
3. Link (URL) to post:_______________________________
NOTE: Because we do not know who you are, we cannot consider requests such as “please remove the pic of me on page 3.” We need to know the exact URL of the page you want removed. You can obtain the necessary URL by clicking on the title of the post and then looking in the address bar on the top of that page.
Thanks to Nik Richie for the 'Free Legal'. -Big Drew