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Are Unwanted Facebook Pictures an Invasion of Privacy?

Facebook has been a struggle for business professionals everywhere since it's launch in 2004. There is a constant struggle for employees wondering if their employers can see their status updates, and employers wanting to use Facebook to recruit potential employees. Is this fair? What if someone posts a picture without your approval or knowledge?

One of Facebook's most intrusive updates is the ability to recognize a face of a friend in a picture even he or she isn't tagged. You scroll the cursor over a face and it pops up with the questions, "Do you want to tag Jane Doe?" So the simple answer of untagging yourself is no longer an option for saving face on Facebook.

Can you sue a Facebook user for posting an unwanted picture of yourself?

Invasion of privacy cases can be very complicated, especially because there are no specifics on privacy, or even a mention of the word, in the Constitution. Anywhere. That can be attributed to the fact that the Founding Fathers probably never imagined an "Internet" where people can see anything or anyone at anytime they please. In the absence of constitutional privacy rights, states have put together a list of ways to prove your right to privacy has been invaded.

Unreasonable Invasion of Solitude

In the eyes of a Facebook user, you may feel you have a reasonable expectation for your posts to remain somewhat private. Of course, we know that with the internet, there is a way to hack anything. But the key word is "reasonable." Meaning, an average user should not be able to see pictures or private information. In order for the court to enforce this reasonable expectation, they consider a multitude of Facebook aspects including what privacy settings were in place when the unwanted picture was posted such as the number of friends a user has, and the frequency of the user's activity. If your profile is 100% private and you have less than 100 friends, it's pretty obvious your pictures are not for public display.

Intrusion Upon Seclusion

The Court of Appeals in Texas defines this claim as "an intentional intrusion upon one's solitude, seclusion, or private affairs or concerns that would be highly offensive to a reasonable person." In plain terms, this means that if someone has put in any effort at all to ensure no one sees their private information, they must show that the intruder INTENTIONALLY worked around privacy settings to gain access. The best example of this would be a worker getting fired for speaking inappropriately about a client to another co-worker on Facebook. If the boss or higher management is a friend of the one making inappropriate comments, then he may be able to get away with letting the employee go. If the employee making the comments is not friends with upper management, but the other employee is Facebook friends with the boss, the "commenting" employee should not be judged based on what the employer sees through another's profile.

Public Disclosure of Private Facts

This rule is straightforward. If a Facebook user posted something which would be offensive and objectionable to a reasonable person, they are liable for invasion of privacy. Unlike the previous two approaches, this comment must be of legitimate public concern. If the President of the United States has a private fact exposed, it is considered a public concern. It is less likely to consider your new t-shirt to be of legitimate public concern. The second requirement is that it must be "substantially certain to become public knowledge," meaning just having the knowledge is not enough to be liable for invasion of privacy. For example, if a picture is posted of you at a rehab center for alcoholics, that is a legitimate concern to those who know you, employ you, or are looking to employ in the future. Some things should be private in order to retain your future reputation.

Take Back Your Privacy

Of course, the first line of action is to report the photo to the social media platform. Although most social mediums are very reluctant to erase any pictures due to the "freedom" the internet is constantly trying to keep.

In the event that the unwanted picture cannot be removed, it may be time to contact a personal injury lawyer and fight for your reputation. If you are a victim of invasion of privacy through Facebook or any other social medium, contact Kyle Law Firm in the San Marcos, New Braunfels and Seguin, Texas area for a free consultation.

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