The law and your smartphone: tips from a legal expert

When you have legal questions, make sure you consult with a lawyer who is familiar with the laws applicable in your area.  Your lawyer will be able to suggest options based on your circumstances.  The information below is not legal advice, and does not take the place of speaking with a lawyer.

These days, we can do just about anything with our smartphones.  From doing our shopping to paying our bills to watching movies and staying in touch with friends across the world, everything is just a click away.  But we have to be really careful when we are using our phones if we want to make sure our personal information is safe and we are staying out of trouble.

An issue that has come to the forefront of people’s minds recently is social media and photos: who owns a photo that is posted online?  Once it is out there, can anyone take it and use it however they want?  The answer, generally speaking, is no!  When you post one of your photos on social media, you are generally still the owner of that photo (assuming it was yours to begin with).  But this is only part of the story!  Say you post your photo to Instagram.  While you continue to own the photo, by posting the photo you grant Instagram a broad license to do a number of things with it, including sublicensing it to its partners like advertisers.  What this means for all of us is that if we post a photo that we later want to take down, we can remove it from our own account, but the photo could live on in other places.  So make sure when you post a photo that you are okay with it being around for a long time!

Another issue that comes up frequently relates to the photos we post – do they have to be our own?  The answer is yes.  Most social media platforms have terms of use that require you to agree only to post your own photos (or photos you have permission to post).  When you see a funny photo of a celebrity it is really tempting to post it on your own account, but you have to be really careful!  If Instagram, for example, gets hit with a lawsuit based on a photo you post, they may be able to rely on the indemnity clause that is part of their terms of use.  The indemnity clause basically says that if Instagram has to pay someone as a result of your content, you have to pay them back.  So you should only post photos that are your own.

On a similar note, what if someone takes your photo and passes it off as their own?  There are two different scenarios here.  In the first, someone takes your Instagram photo and posts it to their account, passing it off as their own.  In this case, you can alert Instagram and they will deal with it (you will have to show your ownership, etc.).  The second scenario presents a greater challenge: someone takes your Instagram photo and uses it somewhere else in the world, not on Instagram.  There have been many examples of this – people finding the photos they post of their children on ads for baby food across the world.  One person reported finding one of his photos printed on a t-shirt at a well-known clothing chain.  In this case, it is going to be up to you to enforce your legal rights.  You will need to speak with a lawyer, who can help you determine how to proceed.

Besides photos, another issue that comes up often with our smartphones is in-app purchases.  Sometimes we click “OK” a little too quickly, without reading the terms and conditions of the purchase we are making.  It is really important to know what we are signing up for, because it has happened a number of times that people have found themselves with huge credit card bills after not realizing how many in-app fees they were incurring.  Whenever you are giving out your credit card information, you should make sure you understand what you are being charged for, and how your credit card information might be stored or used in the future.  It is better to put in the time up-front to read the terms than to end up with an expensive surprise at the end of the month!

With everything we do on our phone, it is important to remember that, although everything is just a click away, we should be spending some time engaging in second thought for everything we do.  Posting a comment to Twitter, for example, can be done in a flash.  But sometimes a second read-through makes us realize that what we are saying could easily be misinterpreted.  Sometimes comments go viral and we definitely don’t want to find ourselves on the wrong side of a Twitter-storm.  Be really careful when posting anything online, because it could reach all corners of the world quickly, and it could stay there for a very long time.
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