As a public relations professional, Frank David Ochieng' knows something about social media trending topics. He just didn't imagine that one day he would be trending because of something that happened in a neighbouring country.
Working from Nairobi's Parklands area, Frank regularly organises publicity events for his employer. He is also active on social media.
On the afternoon of March 23, a Thursday, Frank posted on his Facebook page some close-up pictures taken of him while making a speech. In the pictures, Frank was in a formal shirt and tie. Two days later, a friend texted Frank that one of the pictures was in an online tabloid. "Ochieng', someone is playing around with your photo," the message read.
One of Frank's pictures had been used in a viral blog post from Uganda. The blog post was about a pastor who allegedly closed his church after winning millions of shillings in a sports bet. The reason why Frank's photo appeared in the story was that the Ugandan pastor and Frank both have the names David Ochieng.
It seems the authors of the article picked the first picture they found online of someone named 'David Ochieng', only that they got the wrong picture. At first, Frank thought nothing of the mistake. He had never heard of that website and did not expect the matter to escalate.
"I checked out the page; it was a small one, so I ignored it. Then I started getting texts and calls from people as far as US and South Africa regarding a trending post about me," Frank says.
In a typical Internet manner, what started as gossip in an obscure blog was blown up by online news websites across Africa. They all mistakenly used Frank's photo, believing it was the Ugandan pastor. A major South African news outlet with verified social media accounts also fell for the ruse. That's when Frank realised he needed to clear his name.
He wrote to the media outlets that carried the story, clarifying they had the wrong picture. To its credit, the South African media organisation apologised for the mistake and deleted the offending post. However, there are still a few social media handles that have Frank's picture with the wrong story. Some ignored his request, perhaps enjoying the high engagement numbers from the pastor's tale.
Frank's story highlights the fact that text or images you post on the Internet may be used anywhere else without your knowledge or permission.
Victims are often helpless because they don't know what to do, or they cannot afford the legal expenses of taking the matter to court. There's also the problem of how to seek legal redress from websites that may be hosted in a different country. Like Frank, most people choose to either ignore the violation or try convincing the offender to remove the pictures.
Gideon Muriuki had one of his tweets taken up by an online tabloid and used in a story describing him as a parent. The problem, in this case, is that Muriuki does not yet have children.
"I made a comment on Twitter criticising the Competency Based Curriculum (CBC) of education. A few weeks later, I entered my name into a search engine to check out content about myself," Muriuki says.
"I found my comment on CBC had been used in an online article that described me as a parent."
He has not taken any action against the tabloid because it is not well known.
According to Hootsuite, a company specialising in social media management tools, copyright laws for social media are exactly the same as copyright laws everywhere else. If you want to use a picture or any type of image that isn't yours, you must obtain permission. That might be through a licence or through the creator directly.
COPYRIGHT, FAIR USE
A popular misperception is that anything posted on the Internet can be used freely. Not true, says Hootsuite. "When someone shares any type of image on a public social account, that doesn't make it public domain. They still own the copyright," the company explains.
The other belief is that social media companies "own" your pictures. Publishers often use pictures from social media and then credit the images to the social media platform. A glance at Twitter's terms of use reveals the company's emphasis on the users' right to their content. "What's yours is yours — you own your content," says Twitter. Facebook's parent company Meta also states the same in its terms of use. Social media companies, however, warn that posting any content on the platforms makes it available to the rest of the world.
In Gideon Muriuki's case where part of his tweet was used in an online tabloid, the "fair use" principle may apply. Using a few lines of text for a quote in an article qualifies as fair use, but copying an entire page would require permission from the publisher.
The Stanford University Library indicates that fair use is any copying of copyrighted material done for a limited purpose, such as to comment upon, criticise or parody the copyrighted work. This includes quoting a few lines of a song when writing a music review, quoting a medical article for a news report or copying a few paragraphs from a news article for use in a classroom.
The Digital Media Law Project states that the fair use defence is most likely to apply when borrowing bits of copyrighted material for criticism, comment, news reporting, teaching, scholarship or research. Generally, a short excerpt is more likely to be regarded as fair use than a long one. Non-profit uses may be viewed favourably as fair use compared to taking portions of copyrighted work for commercial purposes.
So, what should you do if you find your picture wrongfully used? Start by directly contacting the offending social media user and alert them that they are using your pictures without permission. If they refuse to remove the offending pictures, you can report them to the respective social media company (Facebook, Instagram, Twitter) for copyright violation.
Matters are rather different outside of social media; for example, if the image is hosted on a website. In that case, internet search giant Google recommends directly contacting the operator of the offending website to remove the picture.
In extreme cases, such as when explicit images are posted without the victim's permission, search engines can take down the images on request. However, removing the images from search engine results does not remove them from the external website hosting them.
