Sun Tzu: Encourage your enemy to have its back to confined places, tangled thickets, quagmires and crevices. 

Many people on finding that their image has been used to promote weight loss may feel a little flattered, unless of course, it is the "Before" rather than the "After" shot.  An attractive fitness trainer whose underwear shots were taken without her permission and used to promote slimming products on Facebook in another country was understandably livid. 

Will Facebook rush into action? Well it all depends. 

Facebook will act if you can prove that your intellectual property rights ("IPR") have been infringed. For instance the person taking a photograph is usually the copyright owner. By uploading the photograph, it has been copied. Facebook should act quickly to remove the infringing photograph. This is because generally, internationally, a company that hosts a site can be liable if it does not act to remove infringing material within 48 hours of being informed of the infringement. But unless it was a selfie or taken by your employee (depending on the jurisdiction) or you have a licence or assignment of the IPR by the person who took the picture you are not the copyright owner and do not have the right to enforce copyright in the photograph. 

Have her image rights been infringed? This is an argument used by celebrities whose images are used to promote a product without their permission. Here Facebook should act, as she is in the business of being a trainer and her image is part of the goodwill of her business. 

Has she been defamed? Imputations of being fat, taking drugs or being willing to strip off for money are insults that most people can laugh off unless it is about them. But America has comparatively lax laws on defamation as freedom of speech is a fundamental right of every US citizen and they can say what they like about anybody. Hence the popularity of guns. Therefore, Facebook may not be eager to act but can be forced to do so by courts in the countries where the defamatory statement was made or received. Lawyers in Australia, particularly judges, take abusive imputations very seriously especially about being bald and/or deaf. 

Has her privacy been breached? Displaying an image of someone even if it is in their underwear, is not a breach of their privacy, unless there is good reason for it to be confidential. 

There are probably a number of national trading standard organisations to which she could protest but they may not act quickly or at all. Therefore it is advisable to get your arguments in order before you approach Facebook demanding that they take photos down. 

Disclaimer: All references to underwear, being overweight, selfies, employees taking inappropriate photographs, disrobing, drug taking, inappropriate use of firearms, ineffective lawmakers, trading standard organisations being slower than any other government body are pure inventions to try and keep the readers' attention and nothing to do with the news report which sparked this article. Any resemblance to real persons or events, living or dead, fat or thin is purely coincidental.

(c) Paul Brennan 2018. All rights Reserved.

Extract from "The Art of War, Peace & Palaver: The Contentious Guide to Legal Disputes" by Paul Brennan

Mothers in Law -  main concern

Paul’s new podcast, "Law" provides short clips on legal issues. He began with legal topics of universal concern such as wills made in suspicious circumstances, how to stop your kids fleecing you before you go, your parents giving your inheritance to some blow in. Unexpectedly, “Dealing with Mothers in Law” was and is the most popular topic followed by “Alcoholic Sons.” 

If you have a contentious legal issue that you wish resolved please call Paul Brennan of Brennans solicitors  today on 617 5438 8199