Wikilegal/Removal of photos uploaded by minors

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Question Posed[edit]

A license granted by a minor, without parental consent, for something like a picture of parts of their own body, is as valid and irrevocable as that granted by an adult, meaning that Commons has no legal duty to remove such an upload upon request.

Discussion[edit]

Licenses granted by minors are as valid as those granted by adults.[1] Both minors and adults are protected by the same copyright laws and they can issue equal licenses. Contracts used to transfer licenses are controlled by state law, which arguably gives minors the right to disaffirm (i.e. cancel) in many situations - but only within certain limits. For example, generally a minor can neither reap the benefits of a contract and subsequently avoid its burdens[2] nor solely disaffirm the “irksome portions” of a contract.[3] A minor who posts photos on Commons, for example, receives a large benefit from the use of and international recognition and exposure gained from the global project.

That said, the enforceability of a minor's license seems subordinate to a number of issues, legal and otherwise, arising from certain types of posted pictures. In a recent resolution, the Board of Trustees has urged the Wikimedia community to “[t]reat any person who has a complaint about images of themselves hosted on our projects with patient, kindness, and respect, and encourage others to do the same.”[4] This spirit is reflected in the guideline on photographs of identifiable people, which advises administrators to be sympathetic toward removal requests with good rationales.[5] That policy also requires consent for photographs taken in a private place. The community may well choose to exercise its patience, kindness, and respect in reviewing the request of a child to remove his or her photograph and find the age of the child, the nature of the photograph, and the claimed absence of ongoing consent as a "good rationale" to remove the photograph.

Of course, to the extent such photos would ever constitute child pornography or violate related laws, they are not only illegal but also forbidden by our Terms of Use.[6][7]

References[edit]

  1. Under U.S. Copyright law. See 17 U.S.C. § 101 et seq.
  2. See, e.g., E.K.D. v. Facebook, Inc., No. 11-461-GPM (S.D. Ill. Mar. 8, 2012) (unreported)
  3. E.g., Holland v. Universal Underwriters Ins. Co., 75 Cal. Rptr. 669, 672 (Cal. Ct. App. 1969).
  4. Resolution: Images of identifiable people, http://wikimediafoundation.org/wiki/Resolution:Images_of_identifiable_people (as of June 4. 2012, 17:14 GMT).
  5. Commons: Photographs of identifiable people, http://commons.wikimedia.org/wiki/Commons:Photographs_of_identifiable_people (as of June 4, 2012, 17:16 GMT).
  6. Terms of Use, http://wikimediafoundation.org/wiki/Terms_of_use#4._Refraining_from_Certain_Activities (as of June 4, 2012, 17:20 GMT)
  7. Our legal policy says this about child pornography:
    "5. Child Pornography. Child pornography must be removed from the site immediately. Generally speaking, child pornography constitutes a photograph or other visual image of a child engaged in sexually explicit conduct.[3]
    It is important to note that depictions such as drawings, cartoons, sculptures, or paintings that represent children in sexually explicit conduct may run afoul of certain obscenity statutes if the depictions lack certain cultural or social value. See 18 U.S.C. 1466A.
    Relevant federal statutes on child pornography – with corresponding definitions -- may be found here:
    http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1476#1
    State laws may also be applicable.[4]
    As soon as possible, as required by law, the Legal and Community Advocacy department should report any discovery of child pornography (as described above) to the National Center for Missing and Exploited Children (800-843-5678). See 18 U.S.C. 2258A Reports to other law enforcement agencies may be appropriate depending on the circumstances.
    Community members who find child pornography on the site may delete and report it. Community members are asked to notify Legal and Community Advocacy about any child pornography found on the site to ensure it is properly reported to the authorities.
    Even when reporting, Community members are advised not to store or send images of child pornography through any means, including snail mail or email, unless pursuant to police instructions."