'Bodyright' Can't Right Online Wrongs

Corey Friedman
Tue, 14 Dec 2021 14:19:50 -0800
Opinion

Registered trademark and copyright symbols beware: A well-meaning impostor is joining your ranks.

The United Nations Population Fund launched its bodyright campaign this month, describing the lowercase "b" in a circle as "a new 'copyright' for human bodies." Adding the bodyright symbol to your selfies doesn't offer any legal protection, but the UN's sexual and reproductive health agency hopes that will change.

"Governments have passed laws making copyright infringement illegal and digital platforms have devised ways to identify and prevent unauthorized use of copyrighted material," the UNFPA explains in a Dec. 2 news release. "These same protections and repercussions should extend to individuals and their photos."
Updated: Tue Dec 14, 2021

Registered trademark and copyright symbols beware: A well-meaning impostor is joining your ranks.

The United Nations Population Fund launched its bodyright campaign this month, describing the lowercase "b" in a circle as "a new 'copyright' for human bodies." Adding the bodyright symbol to your selfies doesn't offer any legal protection, but the UN's sexual and reproductive health agency hopes that will change.

"Governments have passed laws making copyright infringement illegal and digital platforms have devised ways to identify and prevent unauthorized use of copyrighted material," the UNFPA explains in a Dec. 2 news release. "These same protections and repercussions should extend to individuals and their photos."

The bodyright movement is meant to combat online exploitation of women and girls through revenge porn, the public posting of sexually explicit photos initially shared with romantic partners. But organizers sabotaged that worthwhile effort by making bodyright a catchall campaign against antisocial behavior online, diluting the message to a meaningless mush.

Bodyright, the UNFPA says, is "a bid to end rising online violence," and in addition to revenge porn, the movement targets "cyber-harassment, hate speech and defamation," along with doxxing and deepfakes — images and videos edited to replace a real subject with another person's likeness.

Advocates are encouraged to sign a petition and lobby elected officials for change. With a modicum of message discipline, that could spark a global consensus. Broadening the scope to encompass every social ill makes bodyright a nebulous call to action that's less about cracking down on nonconsensual pornography and more about smuggling postmodern concepts into language and law.

While many European countries criminalize hate speech, that phrase has no accepted legal definition in the United States, where First Amendment jurisprudence delineates narrow categories of expression that can result in governmental sanction. Defamation is one such closely constrained category that involves false factual claims. Statements of opinion, no matter how cruel, don't qualify.

Through purposeful, repeated use of the terms "online violence" and "digital violence," the UNFPA seeks to conflate hurtful words with physical assault. Countries with lesser free speech protections might be amenable to that premise, but it's a nonstarter at the UN's home base in New York.

Describing unwelcome speech as violence is a rhetorical dodge used to condone censorship and excuse escalation. If saying something that offends you is equivalent to a shove or a slap, after all, you can let your fists do the talking and claim self-defense.

American courts are running away from that misguided idea rather than embracing it. There's a historical First Amendment exception for fighting words, but it's so seldom invoked that contemporary scholars question whether it remains good law.

Bodyright's obvious allusion to copyright could sow confusion on intellectual property issues that many social media users already misunderstand.

Describing the encircled "b" symbol as "the heart of the bodyright movement," the UNFPA encourages people to add the mark to their pictures by downloading stickers or using the bodyright tool on its website. Yet you already own the copyright on your original photos, whether they're works of fine art or hastily snapped selfies.

"Without my consent, it's not your content," a Twitter ad for the bodyright campaign asserts. That implies the movement seeks to require permission for any use of a person's likeness regardless of who created the image. Aside from advertising, such sweeping publicity rights do not and cannot exist here.

Since there's no expectation of privacy in a public place, folks are filmed and photographed without their knowledge — let alone consent — every day. Documenting public activity is another one of those pesky First Amendment rights that no amount of signatures on a United Nations petition can revoke.

All this mission creep obscures the original problem of revenge porn, which governments can fight without buying into the broader bodyright philosophy. As of 2019, 46 U.S. states had penalties on the books. There's currently no federal criminal statute, but there is a civil remedy.

"Since 80% of revenge porn images are 'selfies,' copyright law provides a way to force the takedown of intimate images," the National Conference of State Legislatures explains on its website.

When it comes to deterring online exploitation, copyright and criminal law work just fine.