A young woman in Austria has taken the unprecedented step of suing her parents over childhood pictures they posted of her on Facebook.
The 18-year-old woman, who cannot be named under Austrian laws, claims the photos caused her significant embarrassment, with the proceedings set to determine whether this amounts to a cause of action.
The woman claims she repeatedly asked her parents to remove more than 500 pictures of her from Facebook, but they refused.
After her parents shared the photos with around 700 Facebook friends, the woman decided to take legal action for infringing her right to privacy.
“They knew no shame and no limits,” she told an Austrian newspaper. “They didn’t care if I was sitting on the toilet or lying naked in the cot, every moment was photographed and made public. I’m tired of not being taken seriously by my parents.”
The woman’s father is arguing that because he took the photos, he has the right to use them as he pleases under copyright law, including posting them on Facebook. But the woman’s lawyer, Michael Rami, contends that his client has good prospects of achieving a favourable financial outcome and having the photos removed.
Mr Rami says his client’s case rests on proving that her parents violated her right to a personal life. The woman has claimed that since 2009, her parents “have made her life a misery” by posting the pictures.
Overseas Privacy Laws
The proliferation of social media has led to the introduction of new laws to protect against bullying and other hurtful conduct, with a number of countries taking steps to protect against breaches of privacy which are intended to cause harm.
France has some of the toughest laws against posting images of children on social media. In that country, posting pictures of someone else without their express content can lead to a fine of up to €45,000 and/or up to a year in prison.
The Case Against Sharing
While parents have traditionally – albeit inadvertently – embarrassed their children at length with baby pictures, the spread and permanence of social media has created unprecedented privacy concerns.
In the UK, a recent survey found that the average parent will have posted 1,498 pictures of their children on social media by the time the child turns five. The survey further found that 85 per cent of parents had not reviewed their Facebook privacy settings in more than a year, and 79 per cent wrongly believed strangers could not see pictures of their children.
“Your favourite picture of your child sitting on the potty for the first time may not be their favourite picture of themselves when they’re 13,” says author and child psychologist Catherine Steiner-Adair.
The University of Michigan recently studied 249 parent-child pairs across 40 American states, finding that a majority of children aged 10 to 17 “were really concerned” about the way parents shared their lives online.
Closer to Home
Unlike in France, Australia has some of the weakest privacy laws in the developed world.
The Privacy Act 1988 (Cth) primarily concerns the collection and use of personal information by governments and state agents, as well as the rights of individuals to access their own personal information.
It is even debatable whether a distinct tort of ‘invasion of privacy’ exists under Australian law at all. The 2008 ALRC Privacy Report noted that, “In Australia, no jurisdiction has enshrined a cause of action for invasion of privacy.”
The High Court decision in ABC v Lenah Game Meats  left open the question of whether a common law invasion of privacy tort exists. Since then, lower court decisions in Queensland (2003) and Victoria (2007) have affirmed this tort, although no such decision exists in NSW.
Given the uncertain state of the law, the ALRC recommended the creation of causes of action for invasions of privacy by either physical intrusion – such as watching, listening or recording private activities – or the misuse of private information – such as collecting or disclosing such information.
Under the proposal, people could sue for damages if they had a “reasonable expectation of privacy” in the circumstances and the invasion was “serious”. There is a public interest-style test designed to limit incursions on freedom of speech and, in most cases, the invasion of privacy would need to be either intentional or reckless
“The time has come, I think, for the NSW Parliament to step in and provide protection for its citizens,” former High Court judge Michael Kirby recently commented.
With technology making it much easier to gather personal information, it may be time to consider taking steps to protect individuals from privacy breaches.