C.P.G. § 6.3 — Unflattering Publication
Digital Misdemeanor“A person is guilty of Unflattering Publication when they post, share, or otherwise publish a photograph or video OF another person that the depicted person would not have approved — mid-blink, mid-bite, mid-sneeze — without consent, or when they engage in vaguebooking such that the household must guess who has offended them.”
Definitions
- “Vaguebooking”.
- A public statement engineered to be about someone without naming them — 'some people will just never change' — such that everyone must apply for the role.
- “The blink ratio”.
- Where the poster looks excellent and the depicted looks felled, the ratio is presumed intentional.
Elements (proof required: a preponderance of the evidence)
- The accused published an image or video depicting the complainant, or a statement plainly about them
- The complainant did not consent to the publication
- A reasonable person of ordinary pettiness would object to the depiction or the vagueness
Recognized defenses
- The Candid Doctrine — the image is genuinely flattering and the objection is modesty (the jury decides with their eyes)
- The Public Event Defense — the depicted was performing publicly at the time, on a stage, on purpose
Aggravating circumstances
- Better photographs from the same moment existed and were withheld
- The caption included 'no filter'
Sentencing guideline: Takedowns, approval regimes, and flattering-photo restitution.
Sentences this court has been known to hand down
- takedown of the offending publication within 24 hours, including from stories and highlights
- a two-photo approval regime: the depicted approves all future posts featuring them, for six months
- publication of three (3) flattering photographs of the complainant, selected by the complainant
Commentary: A nod to the real right of publicity and to New York Civil Rights Law §§ 50–51, which have protected against unauthorized use of a person's likeness since 1903 — after a court famously found no such right and the legislature disagreed within a year.