Cecilia Barnes, 48, from Oregon, claims that she discovered the
postings when strange men began e-mailing her and turning up at her
workplace expecting sex.
It turned out that her ex-boyfriend had posted nude photos of Ms
Barnes in the profiles section of Yahoo!'s Member Directory and,
pretending to be Ms Barnes in Yahoo! chat rooms, had encouraged men
to visit the profile – where her work contact details were also
posted.
Ms Barnes says that she asked Yahoo! to remove the postings on
various occasions, but without success. According to TimesOnLine,
she claims that she eventually received a verbal promise from
Yahoo!'s director of communications, Mary Osako, that the postings
would be removed. They were not, and Ms Barnes sued.
US commentators suggest that her best chance of success in the
action will be to rely on the broken promise, and not Yahoo!'s
overall failure to remove the pictures, due to broad protections
for hosts in the US.
In the US, ISPs such as Yahoo! are generally immune from
liability under a provision in the Communications Decency Act which
grants immunity from suit to those who provide material on the
internet that was written by others. The Act states:
"No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider."
While most of the Communications Decency Act has been struck
down as unconstitutional, this provision survives.
If this happened in the
UK...
It is not necessarily easier to deal with these circumstances in
the UK.
The best argument might be that there is defamation in the
posting of a photo accompanied by disparaging statements that
purport to come from the subject. Viewed in the context of
accompanying comments that invite sex, it should be possible to
convince a court that the subject's reputation would be lowered, as
a legal test puts it, in the minds of ordinary and reasonable
people and that defamation exists.
When defamatory third party material appears on a web site that
is not approved or monitored by the host, the host is usually
protected by laws that operate in a similar way to the US
provisions - until the host is made aware of the unlawful material.
At that point, the host must act quickly, either to remove the
unlawful content or to disable access to it. If the host fails to
act expeditiously, the protection is lost and the host becomes
liable.
However, in the absence of the postings that encourage others to
contact the subject for sex, it is far from certain that a
defamation claim would succeed, albeit generally easier to sue for
defamation in the UK than in the US. A naked picture taken with
consent is unlikely to amount to defamation in the UK on its own,
unless its context incorrectly portrays the subject as, for
example, promiscuous.
Depending on the circumstances, there may also be a data
protection claim. In 2003, the European Court of Justice ruled
against a woman who identified and included information about
fellow church volunteers on her web site without consent from the
subjects. But the data protection argument may stand a better
chance against the individual who made the posting to a public web
site than against the host – and revenge is unlikely to be the
subject's primary concern.
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