SANTA BARBARA - The phenomenal growth of the internet and social media in particular is testing how far one can go when it comes to the right of free speech versus the right to privacy.
"I think the laws are still trying to catch up in terms of enforcement and the right tools and mechanisms to make sure people's rights are protected", says Santa Barbara-based Attorney Jonathan Miller who lectures to law students on legal issues that arise in the digital age.
"We're typically looking at three rights that people have", Miller says, "we have the right to privacy, also in California we recognize the right of publicity, and if your name and image and likeness are used in a way that you don't agree with, sometimes, particularly if it's in a commercial nature, we see defamation come into play as well."
Miller says courts have to decide if free speech trumps privacy.
"So what you have the courts doing all the time is a balancing", Miller says, "you have a right of free speech on one hand, you have a right of privacy on the other and you have to balance the rights and so they look at it on a case by case basis."
There are legal ways to deal with websites that use offensive or inappropriate images and content without consent, although finding those responsible for a website can take time.
"Ultimately we usually find out who the identity of the individual and then we go and we ask the infringing conduct or the conduct that violates peoples rights be taken down", Miller says, "of course we can also file lawsuits and gain compliance that way."
In most cases these legal disputes are civil in nature but depending on the type of conduct on a website criminal charges could also apply.
Some attorneys like Jonathan Miller will do this kind of legal work on Pro-Bono basis.
