In this episode I reflect on how memes infringe peoples image rights and privacy. I delve into the legal issues that arise in the meme space and the boundaries for meme creation.
Updates on Image Rights are published on social media @irbynmashinini
Host: Nomalanga Mashinini
https://www.buzzfeed.com/audreyworboys/famous-people-from-memes-then-now accessed on 21 March 2021.
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Cele v Avusa Media Ltd  2 All SA 412.
Grütter v Lombard and Another 2007 (4) SA 89 (SCA);  SCA 2 (RSA).
Kumalo v Cycle Lab (Pty) Ltd  JOL 27372 (GSJ).
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Privacy and Image Rights vs Memes
Welcome to another episode of Image Rights by N Mashinini. I'm your host, Nomalanga Mashinini, and I will be sharing my knowledge and research on the legal and contemporary issues that relate to image rights.
Remember, when it was reported that Mark Zuckerberg said, "The future is private"? We all like little privacy, at home, at work, and sometimes, even in public. But lately I've questioned whether people truly want privacy at all. Privacy is such a blur on social media. I mean, people share their images and location so freely these days, but memes show us how easy it is to use someone's photograph and share it with the whole world to love it. And yet, the right to privacy was supposed to protect us from the unauthorised use of our images. So should image rights, actually.
But how can these two sets of rights protect identities from being used in social media memes? And which right is primarily concerned? Is it privacy really, especially given the context of social media? Or is it image rights? In this episode, I discuss privacy and image rights versus memes.
If you're unfamiliar with social media, you may be wondering, what is a meme? The Oxford Dictionary defines a meme as an image, a video, a piece of text, typically humorous in nature that is copied and spread rapidly by Internet users, often with slight variations. This definition tells us that a meme goes viral because it's humorous. Then again, the dictionary indirectly admits that sometimes memes are actually not funny. In fact, some memes violate privacy rights and image rights. The meme culture is so popular though.
I battle to see a shadow of privacy on social media because of memes. What I frequently see rather is the violation of image rights because people feel that it's okay to use anyone's photograph all willy nilly. With memes, even children are fair game these days. Do you remember Baby Jake? His facial expression caused many people to join the trend to create and share memes using his pictures. And no one even paused to ask how could this affect Baby Jake when he grows old enough to feel something about those memes.
But what makes people laugh at memes? Memes rely on how we express ourselves in images and text messages in order to make a point or to trigger laughter. The status updates that we post on social media are so closely attached to our personalities. I mean, a person with a shy nature may want to keep to themselves. While someone else would want to be famous, even though many of us are on social media. And this is a personal choice that we all have a right to make. The right to privacy protects us from having our facts shared with the public without our permission. While on the other hand, image rights also regulate how our identity elements can be used in public. And together, these two sets of rights protect our identities from being invaded and exploited in a way that we don't appreciate.
I want to share some examples of how memes can then violate privacy and image rights in light of what these rights intend to protect. I know of many people who are guilty of taking pictures of others in the mall, for instance, in order to make fun of them on social media. Interestingly, though, going to the mall is actually a private trip, even though it takes place in public, and a person may not wish to share the fact that they went to the mall with the rest of the world. So a meme that shows a picture of a person in town or in public can actually violate their right to privacy if that photograph is taken without their permission. The law has to preserve a person's right to go shopping for instance, without worrying what others will do or the fact that others will take pictures of them and send them to the internet. Another meme that can attract litigation is where, for instance, it may show the image of a child without asking for that child's parents permission.
A similar incident actually happened to JK Rowling one time when she went to the cafe with her son. A journalist took pictures of them without asking for their consent and she successfully sued the publishers for their publication because her son's privacy was infringed by such a publication. You see, although JK Rowling is a star, her son has a higher degree of privacy than her because he is not a public figure. And so using the child in a meme in this kind of an example, would also trigger some litigation.
Another example is where you have a meme that shows a private message between two people. A chat between two people is obviously confidential. It's between two people after all, it's meant for their eyes only. If it is shared with others, if it exposes private facts to the public without the permission of one of the two people or even both of the two people, then you're dealing with an unlawful disclosure of private facts, and that's a violation of the right to privacy.
And of course, there are instances where private facts can be shared, when there's reasonable justification therefor. For instance, you could find situations where a private message shows to people who are planning to commit a crime, then, exposing such messages would be justified because you're trying to prove a conspiracy. But a meme that includes a picture that someone posted on their social media update is also unlawful. We post pictures all the time as a profile pictures on social media, and sometimes just a status update of a picture of yourself - the so-called selfie.
So, even if someone shares their own photo in a post, stealing that image, and using it in a meme is a disclosure of private facts without permission because people have privacy settings on a social media account to set boundaries of who can see their posts and who has the right to use their images. That particular post may be in a share or a tag. These settings also show that the posted picture is only meant for a selected audience of friends. So it's unlawful to screen grab people's photos, and then repost them without the consent because you could be exposing that particular image to people who fall outside of the inner circle of the person who initially posted the photograph.
Memes really make it hard to believe that the future is private when people celebrate memes and share them so quickly on social media without thinking twice. It's almost as if we've been desensitised to invade people's privacy. Some people don't even know that you can be sued for being tagged in a meme post if that meme posts violate a person's rights.
The acts that I've described so far amounted to an infringement of image rights as well. You see, image rights protect how someone can use your identity in public. A person can be sued for using your picture in a meme without permission on the basis of image rights, especially if they're selling memes for some form of commercial advantage. It gets worse when you are dealing with the recent rise of meme marketing.
A lot of advertisers have joined the main marketing trend, where memes are used to attract customers. Some brands use either existing memes or they create a brand new meme. So as a result of that, advertisers can also be sued if they use someone's photo in a meme without their permission. The problem in South Africa is that the law is not settled on whether a meme violates strictly privacy or image rights. So very often the courts would compensate someone for the violation or the misuse of the image on the basis of both privacy and image rights. It has been highly debated in scholarly circles whether the use of someone's image violates the image rights or their privacy. rights. My view is that memes actually help to end this debate. Because when I see how much people post their own images on social media and open themselves up for misappropriation, I realise that privacy is weakened on social media.
The problem with privacy is that it depends on a reasonable expectation. In order for someone to prove a case of infringement, it will become harder to prove that a meme violates privacy if we go on the way we do on social media. And so I believe that means show us why it is important to rely more on image rights to protect our images in this age.
Image rights don't ask us whether we have a legitimate expectation of privacy. All that is needed is for one to show that there is a lack of consent to use your image or that someone is having some form of commercial advantage through using your image and whether you are a public or private person would not sway the court in this kind of a case when a meme creator uses your image, unless you are perhaps a politician who is using a meme to pass comment on your public statements or actions. I know that my sentiments may rile up the parody lovers. No doubt, there's room for some satire and parody in this world. In fact, dismissing the need for these would infringe on the right to freedom of expression.
So, what then should be the boundaries for memes; what pictures are protected by freedom of expression; and which ones are not? My recommendation is that for private persons, almost any picture should not be turned into a meme without their consent. Unless you're dealing with a photograph of a crowd. And for public figures, it would be best to not use memes in advertisements, or to make defamatory statements about those public figures. But you can always tell me what you think!
Follow this podcast on Facebook, Twitter and Instagram @irbynmashinini. That is, Image Rights by N Mashinini.
In the next two episodes, I will discuss deepfakes and image rights. If you're wondering what deepfakes are, I recommend that you tune in.
If you have any questions based on this episode, you can send them to email@example.com or follow @irbynmashinini on Twitter, Facebook, Instagram and LinkedIn.
I'm your host Nomalanga Mashinini.
This podcast series is based on research funded by the National Research Foundation of South Africa grant number 121887. The opinions and views expressed in this series do not reflect the views and opinions of the National Research Foundation, its management or governance structures.
Until next time, control your image rights!
Keywords: meme, image rights, privacy, social media , private facts.