Dubious and likely illegal image scraping is alive and well. And outside of particularly public, harmful cases like Rehtaeh Parsons’ photo ending up on a dating site, few organizations or governments seem to be effectively coordinating to stop the practice.
The internet is not a lawless wild west. Images on the internet are not automatically public property – copyright, personality rights and all other aspects of the law apply. This article will list out the most relevant areas of the law and then analyze the situations of international dating using Canadian headshots for dating or porn site advertisements according to the each legal point.
Relevant Canadian Law to Date – A Primer
Scraping in the Law
The issue of general material scraping arose in the 2011 Supreme Court of British Columbia case Century 21 Canada Limited Partnership v Rogers Communications Inc. The court struggled with defining scraping in order to apply the law to it. The judgment included the opinion of law Professor and copyright expert Samuel Trosow in explaining that scraping content was allowable if it was indexed and transformative. Indexing is a broad term for the interconnectedness of the internet through hyperlinks and meta data that web crawlers use for searching and organizing internet material. Because the judge found the scraping in the Century 21 case qualified as a form of indexing, the issue of whether scraping was transformative was not relevant to his decision. Professor Trosow’s comment directly quoted in paragraph 53 of the judgment remains helpful,
“The relevant question in my view is whether the materials are being utilized in a transformative manner in order to provide a usable and informative aid for the end-user searching for information about listings.”
The judgement includes a thorough legal summary of the concept of transformation – which I will summarize as any change that adds something new to the original expression, thus creating a new work. The concept is used primarily in American law, but was also referenced and described in the 2002 Supreme Court of Canadsa case, Théberge v Galerie d'Art du Petit Champlain Inc.
International Servers and the Law
The Supreme Court confirmed copyright liability for servers outside Canada. 2004’s SOCAN v Canadian Assn. of Internet Providers stated, “A content provider is not immune from copyright liability by virtue only of the fact that it employs a host server outside the country.” This is a digital extension of paragraph 27(2)(b) of the Copyright Act,
27. (2) It is an infringement of copyright for any person to […] (b) distribute to such an extent as to affect prejudicially the owner of the copyright. […] a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it. [emphasis mine]
Responsibility Regardless of Intent
The Small Claims Court of Yukon disregarded the “accident” defence in a 2012 digital website photo theft case that closely mirrors the Rehtaeh Parsons one at hand. A tour operator photo ended up on the website of its direct competitor. As stated by the Court in paragraph 12 of Glanzmann Tours Ltd v Yukon Wide Adventures,
“At the end of the day, it remains unclear how the plaintiff’s aurora photo found its way onto the defendant’s computer and website. However, it is not a defence to the present action that the copyright infringement was inadvertent. The plaintiff is still entitled to damages equal to the loss he suffered from the infringement."
Personality Rights and a Person’s Image
Identity exploitation is also a tort that is potentially relevant to photos on the internet. As I’ve outlined in a prior IPilogue post about a recent digital extension of personality rights,
The Ontario Court of Appeal’s 1997 decision Krouse v Chrysler Canada Ltd. outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in Gould Estate v Stoddard, which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise.
At the root of this issue is the principle from the 1977 Ontario Supreme Court Decision Athans v Canadian Adventure Camps Ltd. that stated
". . . it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded."
Photo Privacy in Quebec
Aubry v Editions Vice-Versa is not within the digital sphere, but it is applicable as with regards to personality rights issues. Here in 1998, the Supreme Court confirmed, using the Quebec Civil Code and the Quebec Charter, that there is privacy infringement whenever an image is published without consent if the person is recognizable. It is unclear if such a ruling would hold Canada-wide, but it is a possibility.
Fair Dealing
The Canadian law provides for copyright violation in cases of fair dealing in sections 29, 29.1, and 29.2 of the Copyright Act. Research, private study, education, parody or satire, criticism or review, and news reporting are all justifications for works use that do not infringe copyright. Some recent court interpretations of fair dealing law were recently released by the Supreme Court in CCH Canadian v LSUC, Alberta (Education) v Access Copyright and SOCAN v Bell. Taken as a whole, they confirm a generous interpretation of fair dealing that asserts the user right as a defence. This is particularly true of the enumerated education principle, which some believe has now been broadly expanded to more closely match the US’ fair use exemptions for academic institutions.
User Waivers from 3rd Party Photo Hosting
Some social media sites from which the photos are scraped require users to give up their personality or photo rights. There has yet to be a common law case in Canada or the US on the issue of personal social media site waivers. There are two closely related cases, decided divergently.
The 2012 US case In Re Zappos.com Inc, Customer Data Security Breach Litigation, determined that website waivers are most valid when they require an affirmative acknowledgment of the contract. Conversely, in the 2011 Canadian case Century 21 Canada Limited Partnership v Rogers Communications Inc, the Supreme Court of British Columbia determined that where there was an industry standard as such, proceeding into a website without express agreement could constitute a contract.
Application to Cases Like Parsons’
In my opinion, I don’t think dating or porn sites that use images of Canadian women have a strong legal case to defend themselves from potential legal action. Using the prior list of relevant legal issues, I will make a cohesive argument in favour of the Canadians whose images are used in these advertisings.
Scraping and the Law
The photos may be scraped off a prior website, but they are likely not indexed or hyperlinked to that prior website. The creators of these advertisements likely want there to be little link between the original source photo and the eventual advertisement featuring the photo. Thus, by the definition presented in Century 21, the photo reuse is a new type of non-indexed scraping.
Without indexing, the only remaining argument is transformative. The advertisement creators could argue that by adding in additional text – in the example of the Parsons case “"meet Canadian girls and women for friendship, dating or relationships” – that the addition is significantly transformative. I would argue that because the advertisement doesn’t change the photo, but just adds or overlays texts, the advertisement is arguably drawing attention to the original work rather than creating a new work.
International Servers and the Law
The Supreme Court statement from SOCAN v Canadian Assn. of Internet Providers is helpful because it keeps open the possibility that Canadians whose photos are in circulation on any server around the world can potentially use the Canadian legal system to defend their rights. In the case of the Parsons dating site, which was based out of Vietnam, it means that Canadian courts could go after the Vietnamese infringers.
Responsibility Regardless of Intent
The Glanzmann Tours Ltd v Yukon Wide Adventures case is an indicator of the direction courts might take in response to plaintiffs claiming ignorance. This is immensely important in regards to technology-based conflict. It’s important for court judges to demand parties in a conflict demonstrate a reasonable amount of understanding of and responsibility for their actions. In the case of dating site administrators, it’s my strongly held opinion that “I didn’t know it wasn’t okay to take photos of young women off the internet and put them in my Facebook ads” will not protect these parties as it is consistent with the general legal axiom that ignorance of the law is an unacceptable defence.
Personality Rights
Identity exploitation also presents a strong tort for Canadian victims of image scraping. To have one’s photo used in an advertisement without consent meets the Krouse and Gould threshold because the dating or porn site garners a commercial purpose. The advertisement facilitates traffic for new member signups on the porn or dating site. In the advertisement at hand, Parsons likeness is clearly captured; it is unmistakably her face.
Photo Privacy
Similarly there is a strong case when the Aubry v Editions Vice-Versa precedent is considered. That said, there is a chance it might not hold for victims outside Quebec, as indicated by the use of Quebec-specific law in the judgment.
Fair dealing
It’s my opinion that image scrapers would be hard-pressed to find any fair dealing justification for their activities in either the Copyright Act or even Supreme Court decisions expanding user rights via fair dealing.
I don’t believe companies trolling the internet for photos – with software or by hand – have the protection of a fair dealing defence. Writ large, I feel the culmination of all recent, major copyright cases in Canada makes clear this principle of application; whether the fair air dealing exception is applied broadly or narrowly based on the public good or commercial profits accrued. The more public good provided, the more broad the fair dealing exception. The more commercial profits provided, the more narrow the fair dealing exception. By this broad, over-arching principle, the use of Canadians' images by dating and porn sites provide us little public good but do provide the site administrators profits. Instinctively, the companies using these images would face a more narrow application of the fair dealing exceptions.
But this conceptual analysis is insufficient to discard fair dealing altogether. To dig into the heart of this legal matter, the companies engaging in this behaviour would have to prove that their dealing falls within one of the enumerated principles of fair dealing, and then would have to prove, by a contextual analysis of the facts, that their dealing is fair in accordance with the six factors as elicited in CCH Canadian v LSUC:
- the purpose of the dealing;
- the character of the dealing;
- the amount of the dealing;
- the alternatives to the dealing;
- the nature of the work; and
- the effect of the dealing on the work
It is my opinion that it is unlikely for the analysis to surpass the first stage of the fair dealing test, as the dealing does not fit into any of the enumerated principles protected by fair dealing (research, private study, education, parody, satire, criticism or review, and news reporting). However, if it were to pass this stage of the fair dealing analysis, it is my opinion that a contextual analysis of the facts would result in a finding that no fair dealing exists in this case. I would arrive at this conclusion by arguing that there are legitimate alternatives to the dealing (models could be hired and photoshoots done by the advertisers), that the amount of the dealing is unfair (pictures are being substantially reproduced), that the character of the dealing does not support fair use (pictures are being used for commercial gain), and that the effect on the work is prejudicial (the images and the reputation of those pictured are potentially harmed).
User Waivers from 3rd Party Photo Hosting
Dating and porn sites may have a strong argument if they only scrape Canadians’ images from third party websites or social media networks with sign-up contracts that ask users to waive rights to their likeness. This legal reality may be unpopular in the court of public opinion. There are concerns about the tension between consumer rights and lengthy digital contracts. A movement is burgeoning to demand more proactive and legible terms to be disclosed to consumers. Services to rate the complexity of these contracts and rumours of apps in development to provide layperson translations to contract legalese showcase the problems that these contracts pose.
I would tend to agree. In my opinion, these contracts are unreasonable because they are extremely lengthy and overly legalistic. The majority of users are not able to understand these agreements, which is a big problem. It also points to potential invalidity due to the unconscionability doctrine.
To start, there are many seminal “ticket cases” in the UK that call into question contracts where one party does not adequately appreciate the terms of the contract such as the 1970 case Thornton v Shoe Lane Parking Ltd.
Similarly, Canadian contracts can be set aside for inadequacy of consideration or unequal bargaining power (Black v Wilcox and Titus v William F Cook). Cain v Clarica Life Insurance contains a lengthy list of factors to consider in order to properly assess bargaining power: a plaintiff’s ignorance of business, illiteracy, ignorance of language of the bargain, blindness, deafness, illness, developmental disabilities, and other similar challenges. Harry v Kreutziger is another foundational case in Canadian unconscionability law. A more holistic approach to bargaining inequality, recently emerged in Miglin v Miglin, where the Supreme Court said there is no definitive list of factors; courts should be alive to conditions of the parties circumstances, unique pressures and situational vulnerabilities. Meanwhile, Roy v 1216393 Ontario Inc focused on the “distress of the weaker”, and Gindis v Brisbourne used the word “disparity” in its analysis of unconscionability.
Whether the highest ranking or recent cases lay out a definition of unconscionability that would cover third party website waivers is uncertain. I do believe – for some more-vulnerable users – our growing reliance on the largest social media sites and their ubiquity in our day-to-day lives may meet the power imbalance threshold required for unconscionable bargaining. The more users depend on a service for the function of their day-to-day lives, the more the potential for imbalance and disparity in bargaining power. Dependancy creates bargaining weakness.
Two Systemic Criticisms: Statutory & Social Failure
In my opinion, lack of political action and social concern are failing young Canadians who don’t want to show up in an advertisement for an online dating or porn site.
I. The Statutory Problem: Not Going After the Scrapers
There exist easy alternatives to image scraping. There are many ways to access free images. Governments should take steps to protect individuals – both by demanding websites only accept advertising from companies who agree to ethical photo sourcing standards and by establishing a regime to police and crack down on scrapers. Scrapers operate with software and servers from countries around the world, so it would likely be necessary to create a global framework of international agreements to combat this activity. It would be onerous, but I believe it’s worth the work involved.
II. The Social Problem: Blaming the Photo Posters
In observing the aftermath, the Rehtaeh Parson’s case has caused a rash of victim blaming mirrored by that seen in many cases of sexual violence. For instance, the CBC coverage of the Parsons image scandal ended with an inappropriate call-to-action for increased conservatism in photo posting. A media professor from Queen's University says the unfortunate use of Parsons' image in an ad could be a "teachable moment" for parents trying to instruct their children to be vigilant about uploading photos to the internet.
"We are in a new day where people think that if they find something on the web it's free to use, and that's not necessarily the case," she says. "In this case, we're seeing the hurt that that can cause."
In another instance, the Toronto Star coverage included a similar warning from the Ontario Privacy Commissioner.
"Ann Cavoukian, Information & Privacy Commissioner of Ontario, described what happened with Parsons’s image as a 'strong reminder that we can rarely control the use of our pictures once we share them online.[']
'The unfortunate reality is that people give out far too much information about themselves, believing that their information is ‘private’ and they are safe behind their screen. You are not!' Cavoukian said in an email statement to the Star.
'We all need to take steps to protect ourselves online, especially on social networks,' she added. 'Young people must be especially careful to consider the potential risks, and make it a practice to only post photos that they want everyone to see, including strangers and prospective future employers.[']
'If not, don’t post it!'"
Given that Canada has not acted to regulate against scraping of its citizens’ photos, it’s disappointing to me that the go-to response to the Parsons photo misuse was to tell people to be more careful about what they post online rather than condemn and go after the wrong-doers. I believe it’s a particularly insensitive approach when you consider the root of the Parsons case. Rape culture tells young women to avoid walking alone, to watch what they wear, and to restrict their own liberties in order to avoid sexual violence. Rarely does it focus on how to make assaulters stop assaulting.
Here, where we should have a vigorous call to go after those social media sites and scrapers who expropriate and commoditize photos of young women, we are instead turning to young women and telling them to restrict the images they put online.
I conclude this post with an excerpt from an article by Jane Parsons, Rehtaeh’s mother, written in response to uncovering the dating site photo. It makes the link between photos and human rights better than I can.
"It is disgusting that even in death, my daughter's image is still being exploited. When I see these violations, whether it be the singles ad stealing Rehtaeh's photos -- or the people who contact me and to say negative things such as she should not have been drinking, she was a troubled teen, she was in the wrong crowd -- I sit back and reflect on the reality of who Rehtaeh truly was. Then I think: So what if someone is a troubled teen or was drinking -- as if their behavior or emotional state somehow give permission for others to abuse them."
Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine. She is also the social media volunteer at Sexual Assault Centre London.