[Air-L] an ethical question or two

[Dan L. Burk]

Dear Charles:

You are asking two (at least two) different questions.

The first is about the right of publicity and/or privacy of the
politicians.  In the jurisdictions with which I am familiar, they have
very little: as you have pointed out, they are public figures, acting in
the public sphere, and in a democratic society there is a much stronger
interest in robust discussion and examination of their actions than there
is in maintaining a personal right to control their images.

Stated differently, they chose to place themselves in elected office, so
autonomously chose to place themselves under public scrutiny.  That will
tend to negate their personal interest in controlling the images.

I would hope that this analysis would play out similarly in most
democratic jurisdictions, but YMMV.

The second question, regarding copyright, is much trickier.  Copyright
does not lie with the subject of the photo, but with the photographer
(unless of course it is a selfie).  You indicated that the photos were
drawn from Facebook and Twitter, which suggests that there may be some
implied permission for public use, but this is only a supposition and to
know you would need to check.

Several people have now suggested that the use would be fair.  First, fair
use exists only in a handful of jurisdictions (the U.S., and more recently
Israel, and to some extent Korea and Taiwan).  Some other jurisdictions
will have exemptions (such as "fair dealing" which is NOT fair use,
although in Canada it is creeping closer) that might allow the use.  The
EU is a patchwork, with exemptions varying from country to country.

However you should not assume that non-commercial use of a photo of a
politician is necessarily fair, even in jurisdictions that recognize the
defense (witness, for example, the famous and protracted litigation
between the Associated Press and Shepard Fairey for unauthorized use of a
photo of Barak Obama that formed the basis for Fairey's "Hope" poster --
summarized here
http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster .  Admittedly,
Fairey did not help his case any by committing perjury/spoliation).

Best, DLB

> Dear AoIRists,
>
> I am editing a piece for a forthcoming journal issue; it includes two
> screenshots of tweets from Members of the European Parliament (MEPs) and a
> screenshot of the Facebook page of a politician running for office in
> 2014, including their pictures and names.
> These are public figures very intentionally engaged in a public activity
> in a medium that functions as a de facto public sphere (or at least an
> approximation thereof).
> There is nothing in the screenshots that could be construed as potentially
> embarrassing, much less libelous, much less potentially warranting
> protection as private.
>
>
> I have gained the impression over the past few years that both in practice
> and in emerging guidelines codes, and law (specifically, based on what
> [little] I know of law surrounding freedom of speech and privacy issues in
> journalism in the U.S., the E.U., and Scandinavia),
> it is permissible to publish these without permission from the politicians
> in question.
>
> At most, if these were tweets and FB pages posted by U.S. politicians
> aimed at U.S. voters, we would have to note that the tweets and pictures
> were de facto copyright by their authors; to my knowledge, however, there
> is no parallel requirement on this side of the pond.
>
> Of course, it's usually when I think I know a good response to an ethical
> dilemma that I turn out to be missing something crucial - so: am I missing
> something crucial, or are we indeed on reasonably safe ground to publish
> the screenshots as is, no permissions required, no copyright notices
> included?
>
> Many thanks in advance,
> - charles ess
>
> Professor in Media Studies
> Department of Media and Communication
> University of Oslo
> P.O. Box 1093 Blindern
> NO-0317
> Oslo Norway
> email: charles.ess at media.uio.no
>
>
>
>
>
>
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