Blogger's stolen photo exposes 'big gap' in the law
Jessica Buntrock was angry when she saw the flyer. The 33-year-old skincare blogger has never been to Real Health in Sydney's Bankstown but her image appears on a flyer advertising its beauty and massage treatments.
Buntrock, who uses the brand name Jess Bunty on her blog as well as YouTube, Instagram and Twitter, lives on the Gold Coast and found out about the flyer when she was contacted by one of her 93,000 YouTube subscribers.
Images of Buntrock, purporting to show her "before" and "after" a laser facial treatment at Real Health to combat acne and inflammation, had been photoshopped to show dramatic results.
"It's a very frustrating situation," Buntrock said. "I'm not looking for financial compensation, even though they're using my image for a commercial purpose. I just want them to stop using it."
Buntrock contacted the business and spoke to a manager who identified herself as Jessica without giving a surname.
The woman also spoke to Fairfax Media and confirmed she had spoken to the Queensland-based blogger and agreed to "update the photo soon".
"I talk [sic] to the lady already. We'll change it soon," she said.
The business did not give a commitment to stop using the photo before new flyers were printed. Asked if it was misleading to use a photo of a person who had not been treated at Real Health, the woman said: "It's hard to say."
Buntrock said the business "really needs to pull all advertising with my image on it".
"It's detrimental to my brand, and I can't have subscribers assuming I endorse her services," she said.
"Dealing with this is frustrating and stressful, and I refuse to accept that having my image stolen is somehow just part of being an influencer. There needs to be a straightforward method to combat this, and hold businesses to account for their actions."
Buntrock's experience is far from unusual. It highlights the limitations of the law in providing inexpensive and straightforward avenues for redress for people whose images are stolen online and used for commercial or other purposes.
Fiona McLay, a special counsel at Harris Freidman Lawyers in Sydney, said "there should be some sort of economically viable way" to seek redress in such cases but there were many gaps in the law.
This included a "great big gap" in privacy law, if applicable, because there is no civil action or tort allowing people to sue for damages for serious invasions of privacy in Australia, despite multiple recommendations to this effect from law reform agencies and parliamentary bodies.
"You'd have to have a lawyer sit down and work it out for you. It would all be really complicated. There should be a straightforward complaint mechanism where you seek a take-down order and it's enforceable," Ms McLay said.
Suing for damages for defamation or breach of copyright might be options in some cases but neither were used commonly by private individuals whose images were stolen.
Ms McLay said it would be "hard to get [the] interest" of the Australian Competition and Consumer Commission, which brings misleading and deceptive conduct cases against big business in the Federal Court.
Ms McLay said the first port of call would be to contact the business directly and ask them to take the image down.
Buntrock took that step immediately but it's unclear exactly when she will see a result.
"I'm lucky I was told about this, which is usually what happens when content is stolen: subscribers see it and notify me immediately," she said.