The myth of the so-called Privacy Notice

A number of members on this site (and I’ve seen it on some other sites) paste the following text into their profiles:

WARNING PRIVACY NOTICE: Any institutions using this site or any of its associated sites for studies or projects - You do NOT have my permission to use any of my profile or pictures in any form or forum both current and future. If you have or do, it will be considered a serious violation of my privacy and will be subject to legal ramifications.

Why? Does anyone really think that pasting this text into their profile somehow forms a contract or limits the use of the information being posted? Has anyone engaged legal counsel in reviewing this so-called “notice,” and what did legal counsel advise regarding the efficacy of this language? What, exactly, do you hope to cause or prevent by inserting this language in your profile?

Let’s break this down and see what’s really happening here:

1. When you use this service, you agree to a “Terms of Service.” In case you didn’t actually read the terms, you should know that it forms a contract between you and Daddydater.com (and any of the services provided by or through said Website [the Service]), and you cannot use Daddydater.com unless you agree to be bound by the Terms. If you need to read it, it’s at http://www.daddydater.com/page/tos/ . In other words, all of you have engaged in a legally binding agreement with Daddydater.com, and your rights are governed by that agreement to the extent that the agreement is legal under the law.

2. The Terms of Service (ToS) do restrict those bound by it in how they may reuse the information available on the site. In other words, once you sign-up on Daddydater.com, you automatically agree to the ToS and, therefore, are prohibited from doing certain things with the information posted on the site. You can read what you can and cannot do in the ToS language. Note that part of the ToS to which you agree states “We reserve the right to disclose information about your usage of the Service and demographics in forms that do not reveal your personal identity.” PII (personally identifiable information) is defined under various laws (depending on the nature of it – like an SSN versus a credit card number), but your profile name or “handle” is not PII in that you’ve disclosed it to the public. Daddydater.com may not reveal your “real name,” but you profile name is pretty much public information at this point.

3. What you post on this site in your profile is publicly available. Anyone can hit Daddydater.com and, if they have your profile name, they can read your profile. Note that the public DOES NOT need to agree with the ToS prior to retrieving your profile. In other words, the public is NOT BOUND by the ToS, and need not agree to any contractual restrictions prior to getting your information.

4. The so-called Privacy Notice does not form a contract with any viewer of your profile and it’s totally unenforceable. In other words, it’s pointless to include it and it’s actually somewhat laughable to try to form a contract wherein the user of your information need do nothing to obtain it other than point a browser to a URL that’s open to the public.

Let’s take a look at the language in the so-called Privacy Notice and see, if we were in litigation, what the terms and conditions might be:

a) “Any institutions” – What does this really mean? Is a person an “institution?” Or does it need to be a college or a company? Why not use the term “any party?”

b) “using this site” – What does “use” entail? Does viewing a web page constitute “use?” Or is “use” more appropriately defined as being what someone does after they’ve signed-up on Daddydater.com and, therefore, is bound by the ToC and not necessarily bound by anything in your profile – since your agreement to the ToC, and the other party’s agreement, seems to form the entirety of the terms and conditions to which the parties are agreeing.

c) “any of its associated sites” – Are these “sites” other URL addresses, computers, networks, or what? Are they the same thing as what’s in the ToC, specifically “any of the services provided by or through said Website (the Service)?” Who defines what an “associated site” is? Is that Daddydater or is it the user?

d) “studies or projects” – Really? These are legal terms? If someone’s jerking off looking at your pictures or your profile, is that a “study” or a “project?” If I’m doing research for my Ph.D, am I doing a “study,” or if I get funding does it become a “project?” If a web search engine or bot is doing data mining on Daddydater, could you convince a court that the computer was engaging in a “study or a project?”

e) “You do NOT have my permission” – Really? You posted the info on a public web site, which can be accessed anonymously, with absolutely no restrictions or even a “click through” to get to the info, and you’re now revoking your “permission?” AFTER the information has been served to the user, the web browser, the robot or search engine? They’ve already consumed the information and it’s only at the end of your profile that you’re stating that you’re going to exercise some control that you term “permission?”

f) “to use any of my profile or pictures” – What does “use” mean? They’ve already sucked it down off the Daddydater.com web site or they’d not be able to even see the “Privacy Notice” in your profile. Isn’t that use? They’ve got the information in their computer, and it’s being read by some computer program – a browser, search engine, data miner, or something else. Is that “use?” Is your intent to prohibit “use” only in situations wherein a “study” or a “project” is being done, therefore your “permission” is inherently given for use in other situations?

g) “in any form or forum” – There are four words to avoid in legal and policy language: “Any,” “All,” “Never,” and “None.” Why? Because these words are absolutes. If you intend to restrict use of your information “in any form,” does the fact that you even have a profile on Daddydater fall under the “any form” clause? If someone even looks at your profile (and sees the Privacy Warning), is that “use?” Does demographic collection of your age, weight, location, etc., without any linkage of that information to your personal identity, constitute “use,” and if it does, can you assert that you’re overriding the ToS if it’s Daddydater.com that decides to release the demographic information? After all, you agreed to let Daddydater release that information when you agreed to the ToS. And what’s a “forum?” Is that a legal term and, if so, what statute or case law defined it? Is a “forum” something wherein multiple users access your information using a computer network? How about if I print it out on paper and prepare some PowerPoint slides using the information? Is that a “forum?”

h) “both current and future” – Apparently, if it occurred in the past it doesn’t matter, but let’s leave that alone. Is the attempt here to limit use in perpetuity, even beyond what copyright law permits? In legal terms, “in perpetuity” normally refers to “The condition of an estate that is limited so as to be inalienable either perpetually or longer than the period determined by law.” Is the information you post on Daddydater property of your estate, such that once you’re dead the executors of your estate execute their duties under this condition? Is this in your will? 500 years from now, will cultural anthropologists omit you from a study of homosexuality in the 21st century because you stuck this language in your profile?

i) “If you have or do” – “If you have” implies that it’s already happened, but in the previous clause it’s “current or future”. You’re going to retroactively announce a condition and attempt to enforce it? Good luck. “If you do” … If they do what? Use it? Again, that’s horribly vague.

j) “it will be considered a serious violation of my privacy” – Here’s where this thing totally unravels. A “serious” violation? As opposed to what? A “minor” violation? A “somewhat serious” violation? What is a “serious” violation and where is that defined in law? Next, what’s a “violation of privacy?” You posted the info and made it available to the public. Now you’re going to state that “use” (whatever that it) is violating your “privacy?” Under what law is your “privacy” defined? Is this an “invasion of privacy,” specifically a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain? Yeah, try that after you posted the info on a public web site.

k) “will be subject to legal ramifications.” – Really? Which “legal ramifications?” Since you’re citing “legal,” please state which law or legal code applies here? Contract law? Privacy law (including the Constitution)? Are you going to assert that they violated criminal law? Not going to happen. There’s no code that’s going to cover this. If there are any legal ramifications, they’ll be civil and likely under tort law. Under privacy tort, you’ll have to demonstrate that the defendant engaged in:

Intrusion of solitude: physical or electronic intrusion into one's private quarters.

Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable.

False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.

Appropriation: the unauthorized use of a person's name or likeness to obtain some benefits.

So, you’re going to bring suit against someone who used your information, and you’re going to be able to demonstrate that the defendant somehow engaged in one or more of these activities?

Give me a fucking break. It’s not going to happen. You posted the stuff on a PUBLIC WEB SITE and you cannot “take back” what you’ve posted.

If you want to protect the language in your profile as a “creative work,” then it’s covered under copyright law (one of the four forms of intellectual property recognized under US statute) and even then there’s “fair use” clauses that you cannot overcome. If you intend to exert copyright protection on your profile language, the “Privacy Notice” doesn’t have a damn thing to do with that. Also, the photos in your profile are technically copyrighted by the photographer, not by the subject. In other words, you need permission of the photographer to post his/her creative work, even if the picture is of your face, cock, butt, or whatever. Again, the “Privacy Notice” has nothing to do with this.

Summary: This so-called “Privacy Notice” is absolutely pointless, unenforceable, and rather silly. It does NOTHING to protect your “privacy” or any legal rights. I’m not sure who started this viral movement that caused this paragraph of language to start spreading across the ‘net, particularly on sexually-oriented web sites, but it’s absurd to keep cutting-and-pasting this pointless bit of jargon. Using this “Privacy Notice” in the hopes that it’s going to actually impact anything is about as realistic as sending that spam e-mail message to 20 of your friends because, if you do, Bill Gates at Microsoft is going to send you a check for $100. It’s not going to happen, it’s an urban myth that this notice does anything at all, and (while I don’t want to appear cruel here), those of you who have copied it into your profile have been duped. If you believe this is somehow protecting you, you’ve got a false sense of security.

By all means, consult with legal counsel about your rights (and realize that I’m not even going to address international issues), but here’s the bottom line: If you don’t want people looking at your information and/or pictures, and/or “using” that information, don’t publish the stuff on web sites!