Indrani Mukherjea is on the cover page of every news website today, in pictures where she is hugging her husband, Peter Mukherjea, or posing solo, or in a selfie. Her entire virtual life is flashing on news websites alongside the story of murder allegations against her. Essentially, the news companies have accessed and used her Facebook profile to add graphics to their story. In fact, Indiatoday.in has done a piece titled, ‘Indrani Mukherjea Facebook Profile.‘
But is that ‘password protected’ Facebook profile private enough to keep people from snooping and using content you posted? Facebook doesn’t really give anyone that option and this is how it works –
All the content that users post on Facebook, such as photos, videos, blogs etc., constitutes copyrighted material. A copyright is a kind of intellectual property right that subsists in all works that are original. It gives the author an “exclusive right” to use, distribute, reproduce, perform as well as make adaptations of his/her work. Works that are literary, dramatic, musical, artistic and cinematographic are given copyright protection in India. Generally, the author of a work owns the copyright to it unless the work was created as part of an employment, in which case the employer will be the owner of the copyright. In case a person other than the author or owner wants to use a copyrighted work, he must obtain a license from the author/owner. In the present case there could be two situations – Either Indrani clicked the pictures herself and therefore owns the copyright to them, or that someone else clicked and tagged her in the photos, in which case that person owns the copyright. In none of these situations does the media, being a third party, have any right to use Indrani’s photos. Nevertheless, in this particular case, who really owns the copyright does not matter. This is because as per Facebook’s Terms of Service every user, at the time of signing-up, grants Facebook a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license” to use all of its content posted on Facebook that is covered by intellectual property rights. Further this ‘right to use’ is not limited to Facebook, because in its Terms of Service Facebook also allows third parties – users and non-users- to access, use and associate any user’s content in cases where such content was posted using the “Public Setting”.
Facebook’s Terms of Service
The fine print that no one reads before clicking “I accept” and filling in their details for a new website, is a contract between the user and the website in question. The first paragraph of Facebook’s Terms of Service, states :
“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”
Further the default settings for a user’s pictures and posts is ‘Public’, which spells more menace for the users because Facebook’s Terms of Service explicitly state:
“When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).“
Therefore, through this term, Facebook is acting as a facilitator between its users and even third parties who have not entered into a contract with Facebook. Although it provides its users’ with the option to upload their photos and videos using a ‘private’ setting, Facebook set the default setting to ‘public’ for all activities and also does not prompt or ask its users if they want to continue to keep their content ‘public’. The broadly worded terms of service of this social media website take away from every user the right to protect his content if they are unaware of such settings.
Facebook facilitates in making our content available to everyone, it keeps a non-exclusive right to use anything we post on the platform, hence making it an extreme invasion of our privacy, overridden by a contract in fine print that nobody bothers to read.
