LAST_UPDATEThu, 19 Jul 2018 5pm

When Businesses Use Your Photo Without Permission, Here’s What You Do

Have you ever did a double take and scrolled back on your social media feed to make sure that it wasn’t you or a photo you’ve taken being featured on a business’ social media account?

If you haven’t, consider yourself lucky because as someone who rarely posts photos of myself online, I feel that it is an invasion of privacy when I see my face on these businesses’ accounts without my consent.

But with social media being a handy tool for businesses to promote their products, what rights do we have as customers when we feel that our privacy is being violated?

Surprise! You Have Been Featured

My most recent grievance regarding this matter happened just a few weeks ago when my friends and I had lunch at a restaurant we’ve never been to before.

We sat at a table outside to enjoy our meal and even met with the owner of the restaurant, who came to greet us and asked how we’re enjoying our meal.

But what came next cemented our resolve from coming back to the restaurant as one of my friends checked out the restaurant’s Instagram page and to our horror, we found our photo there.

I understand that it might be a way for them to promote their business since the restaurant is located in a quite secluded area with not much foot traffic but we would have preferred for them to ask for our consent first before posting our photo.

The fact that they posted it on Instagram Stories, where it would just disappear the next day, does not excuse their behaviour – in my book anyway.

However, my predicament was not as bad as Nadeera, who had a photo of her and her son as the banner for a restaurant’s Facebook page and even the banner at the shop itself.

“My husband and I together with our toddler went to this one restaurant in Bangi that we’re quite fond of.

“As what most people do, my husband took a photo of my son and I, as we exaggeratedly posed when our food arrived, looking all excited to devour it.

“I didn’t know that our faces would end up everywhere after that,” she shared.

Apparently, the restaurant got hold of the photo when her husband posted it on Facebook and tagged them.

Nadeera was understandably upset when she found out, but when asked whether she took any action against the restaurant, she said that her husband does not want to as they are friendly with the owner and because he is proud that a photo he took was good enough to be used by the restaurant for promotional purposes.

“I could only roll my eyes and had to live with it. We didn’t even get a discount when we went there after that!” she jokingly said, while revealing that it still makes her uncomfortable to have her face plastered in public like that.

However, not everyone is averse to having their photo taken and posted on a business’ social media account such as Raisya, who has posed for several shops while holding their products and does not mind it.

“It is not entirely different from posting a photo of yourself on your own social media account and it’s not that I like the publicity, I just thought that if this would help their business then it’s for a good cause.

“I also entertain their request because they usually ask politely and would understand if we decline. I like the fact that they ask for our consent first instead of simply taking our photo and uploading it,” she said.

At the end of the day, I suppose that a great deal of customers would oblige having their photos taken if only businesses have the courtesy of asking for their consent first.

Some Businesses Ask For Consent, Others Don’t

It is not difficult to come across online businesses posting photos of their customers or screenshots of their conversations as a testimonial for other potential customers’ benefit, as it showcases that these businesses are trustworthy and legitimate.

Personally, I have more confidence dealing with these businesses when I see good reviews from their previous customers but I do wonder if their customers were coerced to pose for them.

Luckily for camera-shy people, businesses like Eleganciana, an online and offline mobile phone trader, would only post their customers’ photos only after they agree to it

“But if a customer does not agree to have their photo taken, we will not take it and some also agree to have their photo taken but not of their faces.                                               

“In the event a customer changes their mind, where they decide that they do not want to have their faces to be publicly displayed, we will respect their wishes and delete it because the customers’ satisfaction is our priority,” a spokesman of the company explained.

They usually ask their customers after they have settled their transaction and use it as a testimonial or feedback to be posted on their social media account.

“We use it as a way to attract potential buyers to buy with us and it is also used as a feedback or testimony where our customers trust the services that we provide and the product that we sell,” the spokesman said.

As for Beard Brothers' BBQ, an establishment that offers Texas-style American barbecue, posting their customers’ photos is more of a form of appreciation than to promote their business.

“Sometimes the picture and caption is too awesome, so we will repost it as an appreciation for their visit and support,” they relayed.

There are also times that the establishment feels like they want to post a photo by their customers that they were not tagged and when that happens, they will ask for their customer’s consent first.

“And so far, we have never had anyone ask us to remove a photo that we have posted on our social media but if they do ask us to do so, we will gladly remove it,” they said.

It’s quite relieving to know that there are businesses out there that respect their customers enough to ask for their consent but as experienced by myself, and I’m sure many others as well, there are still wayward businesses out there.

And apparently, some companies do not have the conscience to feel guilty about doing this as Syahmi, a digital marketing/social media specialist for a healthy online food store revealed that her company thinks that whatever is shared publicly is meant to be used to boost their marketing and/or publicity.

She admitted that her company have taken and used photos that were taken by their customers featuring their products even before she joined the company.

"Personally I think because my company is just lazy. But my manager justified it by saying, 'what is shared publicly online is meant to be utilised',” the 25-year-old said.

Despite her company’s practice, she does not agree with it as she believes that it is wrong and that they should at least ask for the customers’ consent and credit them.

Instead of “stealing” customers’ photos, now, for promotional purposes of the brand, she arranges her own flatlays for their social media accounts.

“Flatlays may look superficial and silly to some, but a lot of thought of process go into it because they think about how one photo blends well with the whole aesthetic; you have to get the lightening consistent; and the rule of thirds.

“So for some of our customers, we can clearly tell that they put a lot of effort to their photos and for us to simply use it without their consent, that’s just unfair,” she said.

However, she said that the owners of the photos that her company featured have never asked to remove them “because oddly, Malaysians are happy to be featured. They only complain when they are not credited for the photo.

“But there were a few instances where some of our customers would leave comments enquiring if we stole the uploaded image or someone stole it from us,” she said.

Clearly, if businesses have the right mindset of respecting other people’s privacy and creative endeavours, it would not be an issue that people have to grapple with.

Customers Need To Be Proactive To Protect Their Privacy

What then do we, as customers, can do to protect our privacy and what rights do we have as a civilian?

Foong Cheng Leong, founder of law firm Foong Cheng Leong & Co. and the Bar Council cyber law and information technology committee deputy chairperson, explained that when it comes to invasion of privacy, it depends on the scenario.

Foong Cheng Leong. Pic: foongchengleong.comFoong Cheng Leong. Pic:"If it's a photo taken in a public place with many other people like a group photo, it is unlikely an invasion of privacy nor it is anything unlawful.

"If the photo was a photo taken during the business transaction between the customer and the business, it could amount to a breach of Personal Data Protection Act 2010 or invasion of privacy. For example, a photo taken by a doctor of its patient during treatment.

"Also, if the photo belongs to the customer, it could amount to copyright infringement," he said, while advising that it would be prudent to add a watermark to our photos.

And if we do find our photo being featured in advertisements without consent, we should write to the business asking them to remove it.

“They can also consider filing a complaint to the Personal Data Protection Commissioner for them to investigate the matter,” he advised.

HELP University Department of Communication dean Dr Khairuddin Othman on the other hand said that ethically, businesses do not have the right to use photos of their customers, especially so for promotional purposes.  

Dr Khairuddin OthmanDr Khairuddin Othman“Even in advertising and promotion, there is a requirement that you need to seek consent to do so, called letter of release,” said Dr Khairuddin, whose distinguished career includes serving as Advertising and Broadcasting head at Universiti Teknologi MARA (UiTM) and media consultant to the Health Ministry.

He relayed that as customers, we can take several actions if we find ourselves in this predicament where he noted that we should seek refrain from continuing the violation by writing to the business organisation, Advertising Standards Authority Malaysia and the Malaysian Communication and Multimedia Commission.

“You can also take legal redress and seek compensation from the business,” he said.

However, he said that photos that we have uploaded and is publicly available can be used by others freely but when it comes to businesses, we should be compensated if they are using them for profit.  

As this can be an on-going battle between customers and businesses, Dr Khairuddin offered a few suggestions that we, as customers, have to proactively do.

“Raise public concern of this violation by writing to the relevant authorities like the Consumer Association, Ministry of Domestic Trade, Co-operatives and Consumerism, or the editor's columns of major newspapers.

“Public debates should also be encouraged as businesses are adverse to negative news.

“And finally, write to the Wakil Rakyat so that your concerns as a customer on this matter can be raised for debate in Parliament and get a law enacted prohibiting it,” he advised.

It seems that I have a lot of work to do to ensure that the little bit of privacy that I have online is protected and I hope that those of you out there who are equally affected by this would also take a stand against the unethical use of your photos for businesses’ profit.