Court Tells Grandma To Delete Photos Of Grandkids On Facebook For Violating The GDPR
from the what-the-what? dept
We've talked for many years now about the overreach of the GDPR and how its concepts of "data protection" often conflict with both concepts of free expression and very common every day activities. The latest example, first highlighted by Neil Brown, is that a Dutch court has said that a grandmother must delete photos of her grandkids that she posted to Facebook and Pinterest, because it violates the GDPR. There is, obviously, a bit more to the case, and it involves a family dispute involving the parents and the grandmother, but, still, the end result should raise all sorts of questions.
And while many EU data protections folks are saying this was to be expected based on earlier EU rulings regarding the GDPR, it doesn't make the result any less ridiculous. As the BBC summarizes:
The case went to court after the woman refused to delete photographs of her grandchildren which she had posted on social media.
The mother of the children had asked several times for the pictures to be deleted.
The GDPR does not apply to the "purely personal" or "household" processing of data.
However, that exemption did not apply because posting photographs on social media made them available to a wider audience, the ruling said.
There are a few interesting elements in the actual ruling. First, the court notes that since no one made a copyright claim, it doesn't sound like the parents hold the copyright on the images -- which is notable only in that the court seems to think it's natural to use copyright to censor a grandma proudly posting photos of her grandkids.
But on the GDPR question, it notes that the lack of evidence regarding the privacy settings the grandmother used leads the court to assume they were posted publicly:
The General Data Protection Regulation (hereinafter: AVG) protects the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data. However, this Regulation does not apply to the processing of personal data by a natural person in the exercise of a purely personal or household activity. Although it cannot be excluded that the placing of a photo on a personal Facebook page falls under a purely personal or household activity, in the preliminary opinion of the Court in preliminary relief proceedings, it has not been sufficiently established how [defendant] set up or protected her Facebook account or her Pinterst account. It is also unclear whether the photographs can be found through a search engine such as Google. In addition, with Facebook it cannot be ruled out that placed photos may be distributed and may end up in the hands of third parties. In view of these circumstances it has not appeared in the scope of these preliminary relief proceedings that there is a purely personal or domestic activity of [defendant]. This means that the provisions of the General Data Protection Act (AVG) and the General Data Protection Implementation Act (hereinafter: UAVG) apply to the present dispute.
And, then you combine that with the fact that children are involved, and the court says, yup, GDPR requires takedown:
The UAVG stipulates that the permission of their legal representative(s) is required for the posting of photographs of minors who have not yet reached the age of 16. It has been established that the minor children of [plaintiff] are under the age of 16 and that [plaintiff], as legal representative, has not given permission to [defendant] to post photographs of her children on social media. In the case of [child 1], his father did not give [defendant] permission either. In view of this the Court in preliminary relief proceedings will order [defendant] to remove the photo of [child 1] on Facebook and the photo of [plaintiff] and her children on Pinterest. In addition, [defendant] will be prohibited from posting pictures of the minor children of [plaintiff] on social media without permission (as referred to in the AVG and UAVG). The emotional importance of [defendant] to be allowed to place photographs on social media cannot lead to a different judgment in this respect.
Neil Brown, who highlighted this situation in the first place, has pondered that even if grandparents posting pictures of their grandkids is normal behavior, that doesn't mean it's good and it removes "autonomy" over our own data. I have a ton of respect for Brown, but this is a very European view that includes an assumption that we should have "autonomy" over anything about ourselves -- which, when judged against the harsh light of reality, seems incredibly silly.
Yes, there are cases where people will have things posted online about themselves that they'd rather are not there. And I understand that this is an even more fraught area when it comes to children. But there are very real free expression concerns as well, and the ability to use this as a tool of blatant censorship seems way too likely.
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Filed Under: data protection, family disputes, gdpr, grandchildren, grandmother, photos, privacy
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Streisand Effect
I'm surprised Mike wrote about this with no reference to the Streisand Effect.
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But without the financial motivation that copyright provides, how will grandmas all over the world be properly motivated to post pictures of their little angels online? It's a 95-year monopoly for 95-year old people
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Glad I'm a 90s kid...
So glad I was born early enough that I had the right make this decision for myself. I do know some people who are quite cautious about staying off of social media, to the point of wearing masks to parties and events so they don't have to worry about being in the background of some photo. I think that's a bit excessive, but I also think it's pretty obscene to take that right away from someone, particularly while they're still a minor.
And while grandmas displaying pictures is pretty normal, kids not wanting to have their photos displayed is ALSO a completely normal thing. We were lucky that those photos were usually physical, so you could sneak them out of the frame and destroy them. My brother and I used to do that after our mom insisted there was nothing wrong with having nude photos of us hanging in the front hallway. You can't do that if they're posted to Facebook, and the whole damn world can see it. So it's nice to see that at least some kids today still do have options.
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What if she photoshops the pictures and posts them as artwork, would she then have to delete them?
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Good. The question isn't whether Grandma should have photos of the grandbrats. The question is whether Facebook, a for-profit company, should have photos of this lady's grandbrats and be able to monetise that personally-identifiable info by placing ads against it. That's commercial use, and the commercial use of their images, likenesses or personal info without consent is wrong. Facebook should be forced to remove this. These aren't news photos or anything similar, where there is some overriding public interest in their publication; this is merely the invasion of privacy of a small child by a huge, arrogant corporation.
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I'm amazed
The people over in Europe scream as if they are being eaten alive when stories or pictures of them exist online yet ignore the literal mountains of data their own governments are hoovering up about them. They are upset over the wrong issue entirely.
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GDPR requires takedown
The GDPR has a lot of problems but this is not one of them. As a parent, I would not want anyone, including my parents, posting pictures of my kids when they were young without my permission. Sure, the grandparents are proud and maybe even took the pictures in question, but the parents should have an absolute right to control if those pictures are posted for the world to see.
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Re: GDPR requires takedown
The rights of the kids are even more important. What are children supposed to do if they don't want family members posting pictures of them? Their only real choices would be suicide or running away from home, and society doesn't respect their right to make those choices.
As someone else said, I'm glad I was born before I had to deal with this shit. My grandmother may have shown pictures to too many people, but at least they're all in her basement—except for rare, staged photos meant for limited distribution, nobody made copies, certainly not for the whole world to see.
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It's quite right that parents should have the right to ask other people not to post images of their children, this is not really a gdpr issue, more a issue of childrens right to privacy. When someone is an adult than they can decide who posts pics of them if they care,
Assuming they are not in a public place.
I think some country's have laws papers cannot print
Photos of children under a certain age unless they have permission from the parents
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GDPR requires takedown
In Canada, just commit a crime as a young offender and your name and likeness will be censored from all the news reports to protect your precious self-esteem... like this puke www.cbc.ca/news/canada/toronto/incel-canada-terrorism-1.5577015 who is alleged to have carried out a first-degree murder in Toronto, "The charges against the 17-year-old, who cannot be named under the Youth Criminal Justice Act, were subsequently upgraded to terror-related charges."
Bizarre and utterly backwards. One shouldn't have to commit a crime to obtain the right to privacy.
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Re:
If you're trying to get through to the author you are wasting your "breath". Mike just hates anything that involves the GDPR even if there's no real problem.
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Re:
This is just it... all to often, the "ownership" of one's image or likeness has been determined by either copyright law or libel law. Copyright fits poorly as the copyright in a photo belongs to the photographer (or sometimes a news agency, if shot as a work for hire) with no rights per se for the photographic subject. Defamation law is typically only suited to address issues like an advertiser claiming someone endorsed their product when they did not (ie: Woody Allen vs. American Apparel). Neither are a substitute to giving kids privacy.
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Re: Re: GDPR requires takedown
Why does your grandmother keep people in her basement?
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Re:
So you would ban photography in public places when children are present, unless the parents of every child gives their permission. That would outlaw many holiday snaps, street scene photographs etc.
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No one should ever post children's pictures.
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Re: No one should ever post children's pictures.
You would stop people posting pictures of kids because a fraction of a those pictures may be doctored by bad people. That is how to enable bad people to limit your rights because you are afraid of what they might do.
Also, anybody who thinks that embarrassing pictures someone as a kid is reason to refuse to employ them is not somebody you want to work for, as they will have other bad habits in their relationships with employees.
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Re: Re:
No, I would ban publicly distributing - i.e. posting on public, non-private social media - such photos.
Printing them out and putting them in your coffee-table photo-album, or a side-stand digital picture frame is perfectly fine. It's the public distribution that's the problem.
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Re: Re: Re: GDPR requires takedown
So she can have them for dinner?
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Re: Banning
That's different. There is no expectation of privacy in public. Plus, If I take a picture in public and post it, the names of the kids and their family members are not attached.
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Re:
What if she uses 2 or 3 pictures such in a 3d rendering suite and uses that to make a 3d printed statuette?
Suppose I walk by her house and take a picture of the statuette sitting on the lawn, and post that picture to facebook?
For the love of justice, won't someone please think of the lawyers? A case like this could keep a law firm of 20 fed for years! Longer if it goes to the European Court of Justice!
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Re:
Apologies, but no. That might be your own opinion about what the question is, but the court did not even go there.
1) The court took no stance on whether the photos were monetized. None whatsoever.
2) The court looked at Facebook only in regards to what privacy settings the defendant might or might not have taken (and given nothing was stated, assumed "public"), and whether they might end up in the hands of third parties.
That is, if Granny had posted the photos on her home-hosted blog, or somewhere that Google indexed, she still would have been told to take them down.
Don't let Facebook Related Memetic Disorder blind you. Things can be "wrong" for more than one reason at a time. But Facebook/productizing is not one the court decided this time.
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Re: GDPR requires takedown
You not wanting it doesn't make it wrong or create some magical "right" to control over it.
We're not talking about anything you have any right to own. These are mere images of someone taken from somewhere a person was allowed to be. It is of course understandable why you don't like it but again that's not enough to give you control over something you can't inherently control.
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Re:
You're talking about controlling the mere image of something that could be seen from somewhere the person seeing it was allowed to be.
The idea that privacy is some all encompassing right is nonsense. It's an impossible state that you can never achieve and is not reasonable to insist you should be able to.
This is literally you feeling like something must be wrong and so insisting that it is somehow morally wrong just because you don't like how it feels. It's understandable why you feel that way. It's not reasonable to insist it's wrong purely because you don't like it.
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Re: No one should ever post children's pictures.
Someone else doing actual bad things using information about you is not a valid justification for trying to block others from sharing said information. It cannot be inherently owned and your only reasoning for pretending it can is because "someone might do something bad with it".
You go after people who actually do bad things using that information. Trying to prevent information from getting out there is a hopeless and meaningless effort you will never win.
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Re: Glad I'm a 90s kid...
"We were lucky that those photos were usually physical, so you could sneak them out of the frame and destroy them"
...then get reprinted from the negatives? That situation does sound silly, but if you're not destroying the backup along with the original then you didn't really destroy the photos.
"You can't do that if they're posted to Facebook, and the whole damn world can see it"
I'm fairly sure that nude photos of kids would be removed quite quickly from Facebook, and possibly the authorities involved.
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Re:
"The question is whether Facebook, a for-profit company, should have photos of this lady's grandbrats and be able to monetise that personally-identifiable info by placing ads against it"
Then the court should ask that question instead of the one they did ask.
"That's commercial use, and the commercial use of their images, likenesses or personal info without consent is wrong"
If so, you just opened up a massive can of worms, since it's generally accepted that the photographer, not the subject, holds the copyright - and a lot of people make money with the photos taken by other people with the permission of the photographer (as Facebook is doing here).
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Re: I'm amazed
"The people over in Europe scream as if they are being eaten alive when stories or pictures of them exist online yet ignore the literal mountains of data their own governments are hoovering up about them."
You should stop being so simplistic about the issue, I think you're ignoring a lot of information that would make some things make sense. Such as, the people reacting in the way you describe are in the minority, and most people are concerned about the latter point (though we're equally concerned about the way the US and other governments, over whom we have no recourse, harvest our data).
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Re: Re:
Maybe if you start explaining why he's wrong instead of whining about his opinions without correction, he might change his mind?
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Re: Re: Re:
"No, I would ban publicly distributing - i.e. posting on public, non-private social media - such photos."
So, when I take a photo of the beach later today, I have to then run around and ask everyone within the visible frame covering around 3km plus any boats on the water for permission to post it to my Facebook feed in order to show family back home the view that comes with my new found freedom? Yeah, that's not going to work...
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Re: No one should ever post children's pictures.
"What happens if the pic is photoshopped into porn?"
Child porn charges?
"What if Granny or the parents have unpopular opinions, and the kids school peers bully them over it?"
The same thing that would happen without the photos, since the posted opinions of the adults have no bearing on them?
"Second, when applying for a job 20 years later, these pics will come up."
...and any employer that's going to use photos of you as a child to not employ you is likely not going to be someone you want to work with in the first place.
"There are reasons there is an "age of consent" for various activities, including statutory rape."
Yes, actual physical assault is definitely treated differently to people sharing family photos.
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Re: Re:
IMH(European)O it depends on the resolution. In Germany I believe there‘s a number of people that need to be in a picture for the individuals to become part of the scenery (so I don’t have to ask everyone for permission). So if I snap pictures in the streets singling out one or two people they have a right to privacy. But if I take a picture of say dozens of passers-by their faces necessarily become smaller and less identifiable so their privacy is kept (they could argue it‘s not them on the image).
BUT nowadays the image resolution of cameras is or can be way higher. So I guess if you take an image with a 1megapixel camera all the faces could not be seen very well, and you‘re good. If you took the very same image with one of those space-age 100megapixel cameras suddenly you can zoom in to every individual. No way to argue that‘s not you if the picture shows every wrinkle under your eyes. Suddenly my plausible deniability, my privacy is gone.
Also, I do expect privacy in public. Yes, people will see if I pick my nose. But it‘s quite different if it happens as an anonymous among fifty other faces on an image or if I’m the one the image focuses on/if there‘s no denying it‘s me because of the high resolution.
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Re: Re: Re:
"No way to argue that‘s not you if the picture shows every wrinkle under your eyes. Suddenly my plausible deniability, my privacy is gone."
What are you doing in public that makes you so scared of it being seen? If you're that scared of it being seen, why are you doing it in public?
"Yes, people will see if I pick my nose. But it‘s quite different if it happens as an anonymous among fifty other faces on an image or if I’m the one the image focuses on/if there‘s no denying it‘s me because of the high resolution"
Or... you could just not pick your nose in public? Also, photo editing exists and if people want to single out the nose picking idiot in a crowd photo, they can do so easily...
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Re: Re: Banning
Well, Facebook will attach names if they possibly can....
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Re: GDPR requires takedown
You better keep your kids inside then so that no one dare even look at them. They better not be in my way if they are walking down the street and I want to take a picture of something in public that they may wander into.. Give me a break, this is totally credulous and protects nobody.
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Re: Re: GDPR requires takedown
credulous should have read ridiculous.
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The grandmother sounds like a narcissistic boundary violator.
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Re: Streisand Effect
Why would he when it clearly isn't an example of the Streisand Effect in action.?
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Re: Re: Re: Re:
To me that sounds awfully like the „If you‘ve got nothing to hide then you won‘t mind X“ defense of snooping. Maybe I‘m pictured near an abortion clinic, if you prefer dramatic examples.
Think about it this way: I don‘t mind being seen when I leave my house. I don‘t reeeeally care if my strange neighbour writes down whenever I leave the house (although it‘s creepy). But when he starts posting his notes for everyone to see I will be very unhappy. So the same act (leaving the privacy of my flat) carries different expectations of privacy for me: a random dude walking down the street can surely know, but once everyone gets in the loop I will object.
Same with the image. Back in the day I didn‘t mind people snapping pictures of me. All that would happen is they‘d look at them a few times, maybe some friends would see them and that‘s it. Once the pictures are shared online every Dick, Tom and Harry gets to see them, plus Facebook‘s (and everyone‘s) facial recognition algorithms. What once had been an image pretty much without any consequences will now be analysed and used to pidgeon hole me. To paint a (futuristic?) picture: GPS data on the image says it‘s a rich neighbourhood so now everything I buy online is 10% more expensive. Or you know, the pro-life death squads come knocking. Or whatever.
Cropping - well, yes. With bad resolution I can hopefully reasonably deny it‘s me.
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A simple rule common sense if someone is in public they lose their right to privacy. A relative has no right to post random photos of children without getting their parents permission unless the photos are taken in a public place.
If someone is simply going around taking many photos of children they do not know and posting them online
without asking for permission they might get in trouble for obvious reasons
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Re: Re: Re: Re: Re:
p"Maybe I‘m pictured near an abortion clinic, if you prefer dramatic examples."
Or, maybe you're not pictured near one but someone Photoshops one in the background anyway? Nothing you're advocating would stop that, but it would make life a lot more difficult for everyone else.
"GPS data on the image says it‘s a rich neighbourhood so now everything I buy online is 10% more expensive"
Based on a single image that might be nowhere near where you live? That would be insanely stupid, especially since you already presumably provide your actual address to the sites already for billing & shipping.
"Or you know, the pro-life death squads come knocking."
Another dumb argument, but it's certainly funny that it's the pro-life people you'd imagine coming for you.
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Re: Re: Re: Re: Re: Re:
Photoshopping is like lying. Privacy laws don‘t deal with this. People can always claim things, with or without proof. So I don‘t agree with you that because of that now the dude in my example can post my movements online (be it lists or photos). The more people know about it the less private I am. So, again, that image in a drawer is no problem while that image in Facebook‘s data + analysis is objectionable.
I wanted to add a few thoughts with my thumb, not argue on the internet. I don‘t intend to write an essay. So I really don’t want to develop too many examples here. Certainly having read TechDirt for the last decade we both know all the ways companies use personal data about me for their (I say: illegitimate) interests. Some websites do charge you more if you use MacOS. Your credit score (I don‘t know the right terms here) is effected by where you shop, where you live etc. Stories about people writing something positive about Palestinians and then being turned away at the Israel border. Different agencies defining Black Lives Matter-type groups as extremist and then giving people who associate with them trouble. You may refute each and every one of these examples. But I still think: In German there‘s a saying „Where there’s a troth there‘ll be hogs.“ The more information is available, the more widely accessible it is, the more entities will access it for their ends. And chances are these ends to not benefit me.
I want to leave you with one nice German word that nicely encapsulates my thinking on all these privacy issues: Datensparsamkeit (data frugality, creating only as much data as absolutely needed).
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Re: Re: Re: Re: Re: Re: Re:
"we both know all the ways companies use personal data about me for their (I say: illegitimate) interests"
Yes, and they will still have that data even if you stop people from taking pictures in public spaces and sharing them with friends.
"Some websites do charge you more if you use MacOS. Your credit score (I don‘t know the right terms here) is effected by where you shop, where you live etc"
Yes, and all of that information is either freely given to them by you yourself, or taken from sources far more reliable than where you happened to have your picture taken once. I agree that some of this activity should be stopped but you're really addressing the wrong issue if you think that photos change any of it.
"Stories about people writing something positive about Palestinians and then being turned away at the Israel border. Different agencies defining Black Lives Matter-type groups as extremist and then giving people who associate with them trouble"
Yes, overbearing government reactions to your speech and associations is an issue, but what do photos taken in public give them that could not be gathered by other means?
"The more information is available, the more widely accessible it is, the more entities will access it for their ends. And chances are these ends to not benefit me."
Yes, but I cannot think of single example where the only way someone could get some data about you from a photo, and not hundreds of other existing sources. Even you can't come up with examples that fit the bill.
"Datensparsamkeit (data frugality, creating only as much data as absolutely needed)."
Yes, and what's "needed" is highly subjective. You say you shouldn't need a photo with you in the background to be public, the person who took it might consider the thing they were actually taking the photo of is needed. Whose opinion is the one used?
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Re: Re:
There is a huge difference between having kids in separate photos with their name and other personal information provided than some unknown kids in the background of a photo where they are not the subject.
There are more than a few parents that do not want their children's faces spread all over social media and they should be able to do so if they want. I know more than a few families with that rule and yes it has caused many family fights but it should be parents call to make.
While I agree that using the GDPR is a bad way to go about getting your kids photos off Facebook it does sound like the mother tried to use other methods first.
If it had been me I would have told Grandma that unless she took the photos down and promised not post any in the future she would NEVER have any contact with the children or me at all. No phone calls, no Christmas visits, nothing.
If she decided not to remove the photos then you know Granny really does not care about the kids at all and is on some kind of power trip to show the mom she can do whatever she wants.
In fact it already seems that is the case. If it was not then she would have taken the pictures down when asked. Seriously who would push it so far as to make her daughter take her to court? Not someone who actually cares about the family that is for sure.
I can not imagine pushing it that far. It makes no sense at all to destroy family relationships just to prove you can post some photos on Facebook.
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Re: Re: GDPR requires takedown
It's a question of right to privacy vs right to freedom of expression. Assuming the photos were taken in a private place, the parents should have some expectation to have a say in how and whether photos of their minor children are published. On the other hand, the grandparents have some right to publish photos that they took. I'm generally a pretty staunch free speech defender but I don't really have a problem with this outcome. The grandmother can keep the photos, and maybe even share them with specific people. The harm to her speech seems pretty limited.
I'm certainly not surprised it came down this way in Europe, even if it probably would go the other way in the US. I just find it strange it had to go to court but maybe Facebook isn't as willing to take down photos as I would have guessed.
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Re: Re: Re: GDPR requires takedown
"I just find it strange it had to go to court but maybe Facebook isn't as willing to take down photos as I would have guessed."
At a guess, they wanted a legal precedent. They will take stuff down when legally required to, but they won't want to be involved in family disputes where the person uploading the photos actually has the legal right to do what they're doing. They catch more than enough crap for things like imperfect nipple censorship and suspending people who get complaints, without inviting family mediation to their role.
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Re: Incentives
Makes sense. Increase compliance cost so that higher financial incentives are required and copyright needs to expand. A win-win situation for the usual suspects?
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Re: Re:
Would it be a violation of your privacy if someone followed you around everywhere you go in public and videoed you, identifying all your contacts (however trivial) and logging everything you see and do, and also tried to collect all your reading history and so on, and did the same thing to all your friends, then tried to get your friends and acquaintances to give them whatever information they haven't deduced?
The old standard comes from a time when to fully watch anyone it took at least 2, preferably 4 and ideally 6+ people to watch them, so any individual could relatively easily maintain their privacy unless they were a high-value target. Now Amazon, Facebook, Google, etc. are getting close to fully tracking everyone, just as the chinese internet companies are doing for their government.
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