AB 632 would force a broad range of websites to establish mechanisms to remove photos, videos, and even caricature or satiric images of its users. As we know, many if not most online sites are incorporating some sort of social networking functionality. This bill would therefore encompass a number of community events, news, sports, and travel sites in addition to more commonly regarded social networking sites.
Apparently the bill’s sponsor is upset that people can right click on photos, and save them to their computer or email to friends. In addition to takedown mechanisms, she wants websites to disclose to users that uploaded photos may be copied by persons who view the image.
As we detailed in our NetChoice letter, the takedown component is most troubling. It would force thousands of websites to redesign their sites to encompass a number of considerations:
- A specific image must be readily identifiable on a specific page—this is a non-trivial exercise. Photos may be buried deeply in a user’s album containing thousands of other images, and URLs of particular pages often change.
- Sites must determine whether an image is actually of the particular user requesting removal. Otherwise, users could request removal of a number of photos that bear their likeness, but do not actually include them, for a number of political, religious, or abusive reasons. Yet, even trained experts have difficulty identifying persons in photos, as images are affected by lighting, clothing, and changes in hair style or makeup.
- Removal must respect copyright law. Websites would face potential lawsuits from copyright owners if removing their copyrighted images negatively impacted them.
- How to deal with group photos, where the user is just one of many people in the image?
The above considerations required by AB 632 place websites in an untenable position, since they would face potential liability for both removing and not removing images.
Furthermore, consider the freedom of speech implications. As more people use the Internet to communicate and engage in social networks, including legislators, policymakers, journalists, celebrities, and business leaders, it is important to provide greater protections for speech online. Yet, AB 632 has serious loopholes that provide an end-around the First Amendment:
- A legislator views certain photos as damaging to his chances for reelection, and demands them to be taken down.
- A celebrity does not like an unflattering image of her, and flags it for removal.
- A weblog engages in investigative journalism on local government corruption, posts photos associated with the story, but the local official demands takedown.
- A cartoonist sketches a satiric cartoon that includes the image of a CEO who wants it removed.
Social networking sites are not equipped to deal with the intricacies of the above situations, and our public figures would know this. As a result, society would be the real losers under the approach dictated by AB 632.
Instead, we suggest that a legislative approach focused on the harms of certain conduct, not a mandate on technology or business mechanisms. If an image is abusive or harassing, there may be better ways to update harassment and stalking statutes for electronic images so that law enforcement can effectively react. Moreover, the judiciary may need clearer guidance on how to deal with defamation law with regards to digital images.