Must One Spouse Seek Permission From the Other Before Posting Honeymoon Pictures on Facebook?

The Short Version:

  1. An Italian court recently ordered a woman to remove photos of her and her husband on their honeymoon because the husband did not give his permission for her to post the photos.
  2. This decision, which is 'unprecedented' in Italian law, would almost certainly fail in the United States.
  3. This case may illustrate differing views on privacy between the United States and Europe, or it may simply be incorrect.

The Italian case

The Local reports that an Italian court ordered a woman to remove photos her and her husband on their honeymoon. From the article:

A court in Naples has ordered a woman to take down photos posted on Facebook from her honeymoon after her husband complained that he did not give his permission for her to post them. She may even have to pay damages.

. . .

In her defense, the wife argued that “the use of social networks is now so advanced that we can consider a Facebook wall to be not unlike a private photo album.”

But the court found that, contrary to the wife’s defense, the publication of a photo on the internet is “significantly worse” than any other form of publication because privacy cannot be guaranteed by the user.

The court found that the woman had “certainly violated the right to privacy of her husband”, citing Article 10 of the civil code and a piece of legislation from 1941 which states that the portrait of a person cannot be displayed, reproduced or sold without the person’s consent.

The article gives no indication that the pictures were inappropriate. It mentions that some of the photos showed the couple hugging and kissing, but that seems to be about it.

The article further notes that the lawyer for the husband was pleased, and that he described the decision as “unprecedented.” This strikes me as a strange choice of words for somebody who favors the court’s ruling, since decisions that are truly remarkable or unprecedented have a higher chance of having been incorrectly decided.

Why this case would fail in the United States

This type of lawsuit would probably fail in the United States. Offhand, it appears that there are two types of claims that a plaintiff could bring in a similar case in the United States: a lawsuit for intrusion on seclusion, and a lawsuit for misappropriation of one’s identity or image.

According to the Restatement (2nd) of Torts, plaintiffs who argue that their privacy has been violated in an intrusion on seclusion action need to show that the published facts or images would be “highly offensive to a reasonable person.” The Restatement gives several examples of actions that would rise to this level of offensiveness. They include forcefully entering another’s hotel room, using binoculars to peer through somebody’s window, or rummaging through somebody’s wallet or purse.

While a honeymoon is a private affair, this case does not seem to involve any inappropriate photographs, and, at most, involved photos of the husband and wife “hugging and kissing.” While newlyweds typically take honeymoons alone as a couple, the activities in the photographs were probably things that anybody nearby could have observed. Because of this, sharing photographs of this activity would probably not rise to the level of an intrusion that is highly offensive to a reasonable person.

A plaintiff who argues that his or her identity has been misappropriated does not have to prove the offensiveness of intrusion on seclusion. But the misappropriation plaintiff needs to prove that the defendant used the plaintiff’s likeness for the defendant’s “use or benefit.” This typically requires the plaintiff to show that the defendant has used the plaintiff’s likeness for the defendant’s commercial or, in some states, personal advantage.

In this case, the wife does not seem to have obtained any personal or commercial advantages from posting the photographs. The husband could possibly argue that the wife would obtain a “personal” advantage from posting the photographs by being able to share the pictures with her friends. The wife’s friends could have given their approving feedback in the form of Facebook comments or “likes.” But I doubt that most courts would be convinced that this is enough to show personal advantage. If a court were to hold that the approval or positive feedback of friends is a “personal advantage,” then a vast array of information-sharing situations would meet this element of the misappropriation tort, which could render this element of the claim superfluous.

Tort law in the United States requires plaintiffs to prove several distinct elements if they are to succeed in an invasion of privacy claim. Because the husband in the Italian case would neither be able to prove the offensiveness element of the intrusion on seclusion action nor the personal or commercial benefit element of the misappropriation action, his case would likely fail if it were brought in a United States jurisdiction.

The privacy implications

It is possible that this case illustrates the differences in legal and societal opinions towards privacy between countries. European courts have tended to give users more power over online content.

For example, an earlier decision by the Court of Justice for the European Union established that users have a “right to be forgotten.” This gives users the power to file requests with search engines for the removal of “objectionable” content. This Italian case may be yet another instance of how user’s privacy claims may be more likely to trump the interests of other users or websites under European legal systems.

On the other hand, I am by no means an expert on Italian law, and it is very possible that this “unprecedented” decision was simply incorrect. Either way, the case will be worthy of attention if it is appealed.

Michael Smith | techlawgic

Michael Smith graduated from UCLA School of Law in 2014. He will be working in the field of criminal law in Orange County starting in September. In addition to law and technology, he writes about constitutional law and criminal law. You can find him on Twitter at @msmith750.

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