“‘I have read and agree to the Terms’” is the biggest lie on the web” is the tagline for Terms of Service; Didn’t Read, a project that reviews the legal terms of service and use of several digital platforms. While most of us are guilty of not having read the terms of service for every site, there are an unscrupulous few who are guilty of actively violating these terms by taking content from other users and posting it elsewhere online.
Such was the case when Adriana Henderson of Houston posted photos of herself on Facebook and soon discovered that they’d been posted in advertisements for sexual services on sites like Backpage. As of last week when she spoke to her local ABC affiliate about the incident, Henderson had not yet had them successfully removed.
Henderson is one of many Facebook users to have their images stolen and misused elsewhere online. A woman in Nebraska discovered that someone was using her Facebook photos across multiple accounts and different names to plan meetings with men. An ex-boyfriend remade his entire Facebook profile to mirror that of his ex-girlfriend and posted numerous racist screeds on the site in an effort to get her fired from her job. Another scorned man posted numerous ads on Craigslist instructing men to come to his ex-girlfriend’s home for sex. In another instance, several teen girls in Massachusetts had their photos stolen in 2012 and put on a site that hosts child porn, along with identifying information about the young women. Unlike the much-publicized cases of revenge porn, the stolen photos in these cases are not explicitly sexual but they are repurposed for sexual services that can impinge on a person’s safety, privacy, and reputation.
Few people understand the impact of having one’s photo misused in this way quite like people actually advertising sexual services, or sex workers themselves. In recent years, a number of sites have scraped data from sex work advertising sites like Backpage and Eros and reposted the photos of sex workers in fake ads they did not place.
“What ends up happening [is] you completely lose control over your image,” says Dana* (name has been changed), an escort who discovered her image was being used across a number of these sites when she needed to remove her web presence. “Once your material gets picked up by one of these leeching websites, it is permanently online.”
All of these cases make it clear just how easy it is for images to spread across the web in ways that profoundly impact a victim’s life. Theft and misuse of these people’s photos elicits obvious sympathy for those affected. However, the knee-jerk responses to create legal protections for the victims don’t always take into account the broader implications for digital speech.
“We want to have neutral platforms for speech but that comes at a price,” says Corynne McSherry, Legal Director of the Electronic Frontier Foundation (EFF).
Facebook has policies expressly forbidding use of the platform for anything that is “unlawful, misleading, malicious, or discriminatory,” which arguably covers just about every one of the aforementioned cases. Facebook also states that repeated misuse of other people’s copyrighted material or the creation of fake accounts using another person’s information is against its Terms of Service.
But victims don’t always find Facebook especially helpful. Danielle Partridge’s image was used to create a profile for another Facebook user, who went by the name “Karen Belinda Smith.” When Partridge filed a complaint that the images were hers, she was reportedly told by Facebook, “We reviewed the account and determined that Karen Belinda Smith is a person who’s using Facebook in a way that follows the Facebook community standards.”
The most basic tool to combat this misuse is to claim copyright infringement by issuing a takedown notice citing the Digital Millennium Copyright Act (DMCA), which doesn’t require an attorney. Section 512 of the DMCA encourages cooperation by websites to remove this content by exempting them from liability for the copyright infringement in exchange for compliance.
This is a powerful option for Facebook users whose photos have been uploaded to other websites without their knowledge. But as Jamie Williams at EFF notes in a blog post, among other problems with the DMCA, the increasing use of robots to detect copyright infringement means that a huge swath of legal content is being targeted for censorship.
“In the name of assisting victims, we often don’t think of the broader implications of legal decisions that encourage more censorship on the internet,” says McSherry.
Other legal tools are suing for defamation or for rights of publicity if an image is being used to promote commercial activities. Henderson could arguably sue for both, since a court might determine that associating her image with illegal sexual services harms her reputation—and because an escort site like Backpage is using her image for material gain.
What is frustrating, of course, is that victims have to contend with both the anonymity of the internet, which often protects those responsible for stealing their images, and the cost of pursuing legal action. In the ABC segment featuring Henderson’s story, reporters made attempts to call the person who had posted the ad with her photo. They were repeatedly met with claims that they had dialed the wrong number or with silence.
I browsed Backpage and came across a photo of an especially small-waisted woman on the first page of results that looked like it might have been culled from a pro-ana blog. A reverse Google image search of the photo delivered 663 results, which more or less confirmed that the photo is commonly used to inspire dieters on various blogs. It’s anyone’s guess if the original copyright holder knows the photo is being used on escort blogs, and untold numbers of our personal photos are likely sharing a similar fate.
But what if you adjust your privacy settings so your Facebook photos can only be seen by friends? An especially revolting case in Arizona makes it clear that that’s no defense against people stealing photos. A man stole photos of a Facebook friend’s nine-year-old daughter from her page and posted them to a child porn site hosted in Russia claiming to be the girl’s father. Though Homeland Security intervened, the prospect of pursuing legal action against a website adds yet another layer to the headache of removing misused stolen content. The case also proves that there are no guarantees that Facebook friendship is a mark of trustworthiness.
It’s clear that we need more readily available and transparent material about the risks of sharing personal content online, particularly on platforms like Facebook that tend to bury their intellectual property pages. But more helpful than scaring everyone into never posting photos online would be for more people to realize that just because they saw something on the internet doesn’t make it true.
No matter how badly people want to believe a woman is inviting them over to have sex or that they’ve caught a sex worker in the act of advertising, we can resist the urge to ruin lives like Henderson’s by assuming the photos are authentic. Considering how many times we’ve all lied about reading the terms of service, the most empathetic and realistic thing we can do is consider the possibility other people are capable of lying on the internet too.
Photo by Tiffany Pai
