Imagine a case in which you consent to the posting of a
picture of you on web site 1 but want a hyperlink to this site from web site 2
The U.S. District Court for the District of South Carolina
held October 22, 2007 that the creation of a hyperlink pointing to a photo
on a publicly accessible web site is not a misappropriation of the photo (BidZerk
LLC v, Smith, D.S.C., No. 6:06109). Citing United States v. Gines-Perez, 214 F.
Supp. 2d 205 (D. Puerto Rico 2002), the court said that "a claim of privacy is
unavailable to someone who places information on an indisputably public medium,
such as the Internet, without taking any measures to protect the information."
A very reasonable decision, don't you agree! Well same
scenario, other country, other court. The Higher Regional Court in Munich
that a link in a satirical news article about a "controversial" lawyer leading
to a web site with pictures of him showing him stripped to the waist wearing
paintball battle attire, constitutes an invasion of the personal privacy of the
lawyer concerned. The court dismissed the argument that the lawyer had consented
to the original publication on the web site. The link had rendered the published
images out of context.
The decision has been criticized from several German legal
experts for threatening the "right to link". Following the reasoning of the
Higher Regional Court you better ask for consent before you link to pictures of
persons. They might not like the context you are placing them in...
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