Barely Legally

Confessions of a Moot Court Bailiff

Facebook’s Fotoshop Fracas

A woman is suing because someone photoshopped her face onto nude photos of someone else. As she should. From Ars Technica:

Photographs “that depict the true face of plaintiff” were altered with Photoshop and “attached to false, phony, naked body shots, and at least one pose where there is plaintiff in a graphic pornographic-like photo,” states the complaint, which was filed on July 25 in Harris County.

“These phony photos falsely and maliciously depicted plaintiff in a clearly derogatory and false light … as some overly bold and overly aggressive sexual person, which plaintiff in fact and truth is not,” writes Ali’s lawyer.

The complaint has kind of a clumsy sound to it, but like all pleadings, it reads a little funny because it has to cover lots of legal bases. If you’re going to seek damages for harm to your reputation, you don’t want to lose when the defendant says “you forgot to argue that your client isn’t actually aggressively sexual!” That’d be embarrassing. And weird.

Sidebar: The article calls this “revenge porn,” and I really hate that term. Usually, it’s a term used to describe web sites with photos of girls who placed their trust in assholes. There’s nothing intrinsically vengeful about that, just assholes doing deplorable things because they’re assholes. Even if every single “ex girlfriend” photo is from a guy who was unjustly dumped (hint: they’re not), the lack of judgment/empathy/decency required to publish those photos retroactively vindicates the dumping.

But this … actually seems to fit the revenge porn label. It’s literally pornography that someone photoshopped Ali’s face onto in revenge for some perceived slight.

Back to Business

Anyway, this case seems pretty open and shut. Doing stuff like this is going to get you sued. Go kick some ass and get some judgments. So how about those Mets, g-

Ali’s lawsuit goes on to state that she wants to “expose the frailties and failures of the falsely advertised and falsely promoted privacy mechanisms” of Facebook.

Well, that seems a little ambitious. I-

Facebook has paid “tens of millions due to privacy concern violations,” and it must “stand up, take notice and pay attention to the serious privacy violations concerns involved in revenge porn situations,” the suit states.

Yeah, but anyplace you can upload photos you can-

Ali is demanding 10 cents in damages for every one of Facebook’s 1.23 billion users—hence, the $123 million total.

Okay, okay, time out. I don’t want to engage in hand-wringing here. I’ve actually got a track record of anti-hand-wringing here on Barely Legally. Lawsuits might sound bad at first, but then you take a closer look, and… ah, screw it.

This Suit Tho

So there’s this federal law called (Title 47 USC) §230. It’s part of the Communications Decent Act. Noted internet scholar James Grimmelmann “cannot overstate how important Section 230 is.” And says “if I had to pick one thing in this course that I wish every student graduating from law school knew, I’d pick Section 230.” I agree, but the guy taught me everything I know about Internet Law. The Electronic Frontier Foundation has a good summary of what §230 does.

The gist is that web sites aren’t liable for what their stupid users do (with the notable exception of copyright claims; that’s a whole other kettle of fish involving the DMCA). Slashdot isn’t liable for the time some commenter said you were an idiot who wasn’t fit to administer a toaster. Twitter isn’t liable for that time someone tweeted a death threat at you. This is why the internet is full of people who think you’re stupid and want you to die. Hooray?

So, Facebook just isn’t on the hook for this user’s photoshoppery. Not unless they exercised some kind of editorial control in its publication, or contributed to the composition of the images. I’m going to go out on a limb and assume that they did not loan the guy a copy of Photoshop, or give him some tips on which photo would be the most “aggressively sexual.” (I owe that lawyer a drink; I’m getting a lot of mileage out of that one.)

One billion conspirators

Holding Facebook liable is going to be really hard. As in, you can’t. But imagine that the judge has had enough of all this, uh… revenge porning, and sets out to make new law right here, right now. Just for the sake of prolonging this exercise. Don’t look surprised; you know lawyers bill by the hour.

But what about the damages? Ten cents for each of the 1.23 billion users; are we really going to fine Facebook for each of its users? Were they all in cahoots? Was this another study I was a part of without knowing? Because honestly, I think I would have remembered being asked which pornographic image we should photoshop a lady’s face onto. I would not have “liked” that.

Look, most of the 1.23 billion users on Facebook never saw this image(s). Unfortunately, the people that did see the image(s) were friends and family; people who aren’t strangers at all. Her reputation is much more important to these people. This handful of people is the group that Ali should using to calculate damages, not all 1.23 billion people. And you’re not suing Facebook for it, anyway.

In the McDonald’s “Hot Coffee” lawsuit, the plaintiff (after originally being rebuffed for the cost of her medical bills) sought an amount of money equivalent to two days’ coffee sales. Maybe this lawsuit should seek money equivalent to Facebook’s ad revenue for a couple of days. This ten-cents-per-user figure just seems random.

To recap, Ali’s lawyer has never heard of §230, and wants damages for a billion-plus users who never saw the image. That half of the lawsuit is kinda silly. The cynic in me wants to assume that the Facebook Half of the lawsuit is a publicity grab. If it is, it worked pretty well.