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Re:Grandmother ordered to delete Facebook photos under GDPR by gpm on Thursday May 21, 2020 @03:47PM (#23264034)
Forget all the family drama for a second, the headline is then

> Person A ordered to remove pictures of person B from facebook.

That's legal? That's not a blatant free speech issue?

(This isn't to say Grandma isn't being an asshole by posting them, but generally you have a right to be an asshole)

Edit: I just want to say I'm pretty happy with the discussion this post generated :) Also, it's been bouncing around from -4 to 0 points repeatedly.

Re:Grandmother ordered to delete Facebook photos under GDPR by ashtonkem on Thursday May 21, 2020 @03:50PM (#23264087)
Europe has very different legal traditions around free speech; it doesn’t necessarily work to map American understandings of free speech onto other countries’ legal traditions.

Besides, there are plenty of ways as an American I can force you to remove a photo without it being “blatant free speech” issue. Copyright and trademark come to mind, NDAs too.

Re:Grandmother ordered to delete Facebook photos under GDPR by philipov on Thursday May 21, 2020 @04:20PM (#23264539)
Even the American notion of Free Speech spelled out in the First Amendment only restricts the government's power to censor speech. Private enterprise can censor anything it wants on its platforms, unless it comes under the jurisdiction of some kind of regulator. This is why it's so dangerous to democracy that so much political speech these days relies on unregulated privately-owned platforms.
Re:Grandmother ordered to delete Facebook photos under GDPR by soneil on Thursday May 21, 2020 @05:04PM (#23265304)
It probably is a free speech issue. Free speech is not the end-all and be-all, in Europe at least.

Person A wants to put a photograph of Person B on facebook. Person B does not want their image on facebook.

Person A has a right to freedom of expression. Person B has a right to privacy. These two rights are in conflict in this case.

It's not that we're not respecting freedom of expression - it's simply not that absolute. It's that we're drawing the line between one person's rights and another's, and Europe often draws that line in different places than the US does.

But be clear - both A and B have rights here. The only way to be absolute about one person's rights is to disregard the other's.

Re:Grandmother ordered to delete Facebook photos under GDPR by toomuchtodo on Thursday May 21, 2020 @03:49PM (#23264063)
Not all countries have legal frameworks that guarantee free speech, or with the robustness the United States does. You adhere to the law of the jurisdiction you operate in.
Re:Grandmother ordered to delete Facebook photos under GDPR by bilbo0s on Thursday May 21, 2020 @03:59PM (#23264224)
>You adhere to the law of the jurisdiction you operate in.

I think this is the best, most succinct summation of the global free speech and privacy issue.

You're free to not really respect the privacy of others, provided you are in a jurisdiction that allows you to do so. This hypothetical jurisdiction however, would not be Europe.

Re:Grandmother ordered to delete Facebook photos under GDPR by mytailorisrich on Thursday May 21, 2020 @04:36PM (#23264816)
The GDPR have extra-territorial effect.

For example if you are in the US and operate a website in the US and get a visitor from the EU then the GDPR may apply to you with respect to that visitor.

The question is then one of enforceability but that's the reason why some American websites have GDPR notices or restrict access to visitors from the EU.

Re:Grandmother ordered to delete Facebook photos under GDPR by tliff on Thursday May 21, 2020 @03:55PM (#23264164)
In Germany that's not only legal but the constitution considers this a fundamental right. https://de.wikipedia.org/wiki/Recht_am_eigenen_Bild_(Deutsch... (Link in german)
Re:Grandmother ordered to delete Facebook photos under GDPR by simion314 on Thursday May 21, 2020 @04:09PM (#23264372)
So in your couuntry you have the right to take photos of my kids and put it online because you are free to be an asshole? Really? Because I read about the fact that you can be forced to pay me if you want to use my image.
Re:Grandmother ordered to delete Facebook photos under GDPR by derefr on Thursday May 21, 2020 @04:40PM (#23264883)
Would you say that if Grandma released a commercial documentary containing images of people that she hadn't gotten consent to appear in the film?

Likeness rights are likeness rights. Nothing to do with free speech. For IP law reasons, people don't have a right to distribute pictures with your likeness in them, unless you explicitly grant them that right. (If things didn't work this way, the modelling industry would collapse.)

Re:Grandmother ordered to delete Facebook photos under GDPR by ghaff on Thursday May 21, 2020 @05:02PM (#23265280)
In the US...

Commercial documentaries have images of people who didn't give consent all the time.

>For IP law reasons, people don't have a right to distribute pictures with your likeness in them, unless you explicitly grant them that right.

Of course they do. Every newspaper does it every day.

>(If things didn't work this way, the modelling industry would collapse.)

People can nonetheless charge for sitting for a photo shoot. And the use of images in marketing/advertising contexts (e.g. in an ad, in a company brochure) does indeed require explicit permission. You also get into publicity rights etc. of famous people.

But if I take a street photo of you and illustrate my blog with it or publish it in a book of my photos? I absolutely don't need permission for a photo otherwise obtained lawfully.

Re:Grandmother ordered to delete Facebook photos under GDPR by derefr on Thursday May 21, 2020 @05:23PM (#23265557)
> People can nonetheless charge for sitting for a photo shoot.

It's more about royalties. The professional modelling industry (of any kind—hand models, for an unusual example) would be unsustainable if the only payment were direct work-for-hire. Models need to make money from downstream uses of their likeness, just like people who produce music need to make money from downstream sampling of their song. Otherwise, the most profitable position would become that of the "sampler" (who, after all, wouldn't need to license anything, and so would get their source material for free!), strangling out those who rely on original licensed material, and thus killing any demand for those who produce such material.

> Every newspaper does it every day.

The thing that journalists and documentarists are doing, in such cases (though not all—they often do license!) is fair use. And fair use is a defense, not a legal justification (i.e. it's like murder in self-defense, not like executing someone as part of your legal duties as a state executioner.) In other words, doing something under fair use does not protect you from getting sued; it just means you potentially have a good argument to use, if-and-when you do get sued.

Yes, oftentimes certain types of likeness rights are "obvious fair use." For example, a picture taken of a place, where that place contains a crowd—the photographer is unlikely to attempt to acquire likeness rights for anybody in the crowd. But technically, any one of those people could still sue for an infringement of their likeness rights.

Now, normally, such a crowd-member who sued wouldn't win... but if the person in the crowd was an "ex-celebrity" who'd gone into hiding and had made a statement that they didn't want to be in the public eye any more; and the paparazzist took the photo specifically because the ex-celebrity was in the crowd, with the intent of printing it out on the side of a building and highlighting with a spotlight just the little bit of it where the person is? They'd have a very good case. Even though it's still "a picture of a crowd, in public."

As well, you lose any notion of this implicit "obvious" fair-use defense, when you're no longer taking pictures of public places. A nudist beach, for example? Usually they've legally arranged to be considered "public-access private commercial facilities." You have no fair-use defense for pictures taken there, any more than you do for pictures taken inside a Starbucks.

A home is a private place. Grandma isn't taking street photos. In fact, without an explicit grant of rights, she's not just infringing upon the subject's likeness rights; she's surveilling private property. Just like most retail stores say you are, if you go in and take pictures of the shelves.

Re:Grandmother ordered to delete Facebook photos under GDPR by M2Ys4U on Thursday May 21, 2020 @05:30PM (#23265647)
>That's legal? That's not a blatant free speech issue?

Why oh why does absolutely everything have to boil down to "free speech"?

Do you want to only have one human right? Free speech but no other rights?

People have the right to a private life as well as the right to freedom of expression and a list of other rights (the right to life, the right to a fair trial etc. etc.) and often these rights conflict.

In this case it's the right to a private life and the right to freedom of expression.

Neither right trumps the other, having both is important for society to function well.

And when the right balance between them is struck, actually having the right to a private life can protect the freedom of expression.

As an example: If one thinks anything and everything they say is _likely_ to be published publicly or to an authority that might then be prejudiced against them then they're likely to self-censor.

That's bad for free speech.

But if one has the right to a private life and is thus in control of what they say then they're less likely to self-censor.

Re:Grandmother ordered to delete Facebook photos under GDPR by rsynnott on Thursday May 21, 2020 @04:12PM (#23264399)
There are limits on freedom of expression in general. Copyright is a fairly obvious analogy here.
Re:Grandmother ordered to delete Facebook photos under GDPR by Tomte on Thursday May 21, 2020 @03:55PM (#23264162)
In my opinion, there is no free speech issue. But I realize that American customs and jurisprudence see free speech in a vastly more expanded way.

In Europe we generally don't. In Germany we certainly don't.

We have a doctrine of "practical concordance" where all basic rights limit each other and have to be weighed such that all basic rights achieve maximal effect. In a way we're looking for a global maximum, not a local "free speech trumps personal rights" solution.

And on another note: I always find it rich when Americans complain about that. America specifically forged our constitution that way. Free speech was not very important post-war, when de-nazification called for banning books, closing all newspapers, licensing newspapers by publishers who were politically "right".

You got that right back then, I'm not complaining about that. But if you had wanted full American Free Speech in Germany, you could have implemented it with a stroke of a pen. Don't blame us now.

Re:Grandmother ordered to delete Facebook photos under GDPR by LanceH on Thursday May 21, 2020 @05:16PM (#23265466)
These photos are being deemed unacceptable after the fact. That's part of the issue. It was ok that they were taken and first published (apparently). So a major part of this issue is that someone continues to control a photograph based on their later decisions.

They are not alleging that the photos were taken against the parents' (or children's) will. It seems to imply that a person carries a perpetual license on their likeness.

Maybe that children are involved makes this case special (unclear here). Or maybe someone who liked a photo of themselves one day gets to demand it be taken down later. Imagine a couple dating put up a photo. They break up and a couple years later one is getting married and demands the other takes down that photo.

Re:Grandmother ordered to delete Facebook photos under GDPR by moron4hire on Thursday May 21, 2020 @04:20PM (#23264545)
I don't think anyone in this thread was involved in the construction of the German constitution.

People are allowed to have opinions in opposition to that of the sitting government, including ones that sat well before we were even born.

Re:Grandmother ordered to delete Facebook photos under GDPR by Barrin92 on Thursday May 21, 2020 @04:34PM (#23264789)
>People are allowed to have opinions in opposition to that of the sitting government, including ones that sat well before we were even born.

Yes, but they need to justify them. Disregarding tradition goes both ways. You can't brush off the German conception of the law and then just go "well that's censorship bro", which is honestly 90% of the discourse on HN on these issues.

The notion of a 'concordance of legal values' is highly intuitive. There's a very strong case to be made that laws are not sacred, that they serve the public good, and thus ought to be balanced. It's the free speech absolutism that is purely an artefact of American culture, practised virtually nowhere else to this degree.

Re:Grandmother ordered to delete Facebook photos under GDPR by foepys on Thursday May 21, 2020 @04:15PM (#23264452)
America doesn't have unconditional free speech either. It's illegal in many states to produce and distribute a pornographic movie. And even if it's legal, some practices are strictly forbidden because the state deems them morally wrong.

Absolute free speech is a flawed concept anyways and even America acknowledges that with the legal concept of hate speech.

Re:Grandmother ordered to delete Facebook photos under GDPR by ggreer on Thursday May 21, 2020 @04:40PM (#23264889)
Hate speech is free speech in the US. SCOTUS has ruled on this many times: https://en.wikipedia.org/wiki/Hate_speech_in_the_United_Stat...
Re:Grandmother ordered to delete Facebook photos under GDPR by foepys on Friday May 22, 2020 @12:06AM (#23268532)
Still leaves the pornographic movies. America doesn't have absolute free speech. Maybe the Supreme Court would strike that down, too, but currently you will be fined.

There are other instances like swearing on TV.

Re:Grandmother ordered to delete Facebook photos under GDPR by ggreer on Friday May 22, 2020 @07:10AM (#23270796)
Pornographic movies are quite legal in the US. Heck, SCOTUS struck down the provision of the Communications Decency Act that prohibited knowingly transmitting obscene or indecent images to those under the age of 18. Their ruling was unanimous.[1]

The radio spectrum is regulated by the FCC. If you want to broadcast on it, you have to get a license and abide by the rules. The FCC has many rules about the content of radio communications including the frequency, the modulation, the maximum transmit power, and yes the content. For example: amateur radio & citizen's band communications can't be encrypted. But even when it comes to broadcast TV, some swearing is allowed. And you can swear as much as you want on cable or streaming services.

1. https://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberti...

Re:Grandmother ordered to delete Facebook photos under GDPR by hinkley on Thursday May 21, 2020 @04:32PM (#23264758)
The advice I've seen given to American photographers, especially after a blowup over pictures, is that if you photograph a crowd, you don't need a release (it would be unreasonable to expect you to track down everyone in the picture). But if you photograph a subject or small group, you're supposed to ask if you can, and if you're doing it for commercial purposes in particular, you should just have a model release form handy and ask them to sign it on the spot.
Re:Grandmother ordered to delete Facebook photos under GDPR by DangerousPie on Thursday May 21, 2020 @03:51PM (#23264093)
Yes, that's legal. The American belief in free speech trumping almost every other consideration is not shared by all countries.
Re:Grandmother ordered to delete Facebook photos under GDPR by yohannparis on Thursday May 21, 2020 @04:09PM (#23264370)
The photo of a person is not free speech.
Re:Grandmother ordered to delete Facebook photos under GDPR by kube-system on Thursday May 21, 2020 @04:16PM (#23264475)
Depends on where you're at, but in some places it is.
Re:Grandmother ordered to delete Facebook photos under GDPR by viro on Thursday May 21, 2020 @04:14PM (#23264450)
photography can easily be considered art.
Re:Grandmother ordered to delete Facebook photos under GDPR by ilikehurdles on Thursday May 21, 2020 @03:56PM (#23264174)
By upending the ruling it would conversely be a right to privacy issue. The American system values speech over privacy when they conflict, but some but in other countries, the preference might be for privacy. As a European and as someone whose family lived under communist rule, I think it's totally valid to favor privacy of the individual over the rights of someone to publicly disseminate their personal data against their will. Europeans were closer to the effects of the secret police forces and the mobs that enabled their rise to power.
Re:Grandmother ordered to delete Facebook photos under GDPR by im3w1l on Thursday May 21, 2020 @03:57PM (#23264192)
Isn't freedom of speech about being able to debate ideas and have different opinions? I don't see how that relates to this.