The Court of Appeals in Kentucky has upheld a lower court custody decision made in part on the basis of tagged photos on Facebook. In Lalonde vs. Lalonde, a father and mother were battling over the custody of their child.
The father was awarded custody based on evidence that the child's mother had been drinking – something her psychiatrists warned could adversely interfere with her medication. The mother argued that since she did not give permission to upload or tag the Facebook photos of her, they shouldn't have been admissible.
The court disagreed:
There is nothing within the law that requires [one's] permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires [one's] permission when she [is] "tagged" or identified as a person in those pictures.
It appears that protesting the use of a photo as evidence because it was uploaded and tagged by someone else is not a valid claim, at least in the US. That being said, it would be unwise to overstate the court's conclusion.
"Some instances of tagging might be part of something actionable," said Evan Brown, a Chicago internet law attorney. "For example, the posting and tagging of photos in the right context might constitute harassment, infliction of emotional distress, or invasion of privacy. Use of another’s photo on the web without permission for commercial purposes might violate that person’s right of publicity. And of course there is the question of copyright as to the uploading of the photo in the first place — if the person appearing in the photo owns the copyright (e.g., it’s a self-portrait) there is the risk of infringement. But it’s interesting to see the court appear to validate ordinary tagging."
Facebook is increasingly being used as legal testimony. Earlier this month I wrote about how the social network is the unrivaled leader for online divorce evidence with 66 percent citing it as the primary source, according to the American Academy of Matrimonial Lawyers.