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Is Facebook's Facial Recognition Software Legal?

By Adam Ramirez on June 14, 2011 | Last updated on March 21, 2019

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

Facebook is about to be subject to a probe by European Union data protection regulators. They will be looking at Facebook's implementation of facial recognition software to propose, without permission, the names of people to be tagged in photos, according to press reports.

These regulators will study the issue to determine whether there have been any data protection violations.

So, what is this all about?

Well, as we know, people can tag the names of others who appear in photos posted on Facebook pages. These can be handy, as viewers get to know who they are looking at in the photos.

On the other hand, there are times when persons appearing in photos do not wanted to be identified by name in those photos. Photos, for example, can be taken without consent and can show people in compromising situations, and the more identification the less desirable for the photos subjects in those instances.

Along comes a Facebook feature that, based on facial recognition software, proposes names of people to tag in photos premised on photos in which they previously have been identified by name. While this feature creates greater ease in tagging, it also potentially increases instances in which people are tagged in photos without their permission and against their wishes.

Apparently, this facial recognition feature is a default setting that can be disabled. But even if this were reversed, such that the feature had to be activated to be put in service, it still raises the possibility of increased instances of tagging against the desires of people who appear in photos.

It is important to put this into context. Many millions of people are tagged daily in photos placed on Facebook. Given this tremendous volume of tagging, and the relatively low level of complaints, it is possible that most people do not mind that they are tagged in photos placed on Facebook by others. But still, if you are someone whose incriminating photo shows up on Facebook with your name tagged without your permission, you likely will not be happy.

One potential idea is that when someone's name is generating for tagging in a photo, that person should be contacted for consent prior to tagging. However, this could be cumbersome. Plus, Facebook does not want to be responsible for third-party content posted by others. And Internet service providers generally have immunity under the Communications Decency Act with respect to such third-party content.

Time will tell how the European Union regulators and others grapple with this issue.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP ( where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is and he can be reached at To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

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