That sox: Samsung got into water for using David Ortiz of Boston Red Sox's selfie with the Prez. Photo: Getty
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Who actually owns your selfies?

Barack Obama is the president of the United States of America and neither he (nor his image) is supposed to be used to endorse a product.

Samsung’s PR team loves it when celebrities take selfies using the company’s newest smartphones. So when the Boston Red Sox visited the White House on 1 April and the player David Ortiz snapped a cheeky selfie with Barack Obama, Samsung’s US team quickly retweeted the picture. Now that decision could land Samsung with a lawsuit.

Why? Because Barack Obama is the president of the United States of America and neither he (nor his image) is supposed to be used to endorse a product. The White House press secretary, Jay Carney, denied that there was any discussion of a ban on all selfies with the president. But US law gives everyone the right to object to being featured in an advertising campaign without permission.

The problem is that these laws were drawn up at a time when the line between personal photographs and adverts was relatively clear and defined. The federal Lanham Act of 1946 gives consumers a way to sue companies for false advertising, or to protest against unwittingly being used in an advertising campaign. The White House lawyers could argue that Obama wasn’t knowingly endorsing a Samsung phone when he posed for the selfie.

Ortiz says that he didn’t intend for his snap to become a viral marketing campaign, but when the Samsung PR team hit “Retweet” it may also have created grounds for a case against the Korean company.

Samsung could defend itself by pointing out that the selfie doesn’t qualify as an advert – you can’t see the brand of the phone taking the picture, after all – and that in posing for a selfie, you give your consent for your image to be shared in all kinds of unexpected ways. We just don’t have any legal precedents for such a case.

The “Ellen selfie” taken at the 2014 Oscars – that one of actors from the Academy Awards in March – was the nadir of the media’s obsession with a pretty unremarkable fad, but the most interesting aspect of the picture was the one that was most ignored: who owned it? You’d think that Ellen DeGeneres owned it, as it was taken with her phone, but Bradley Cooper pressed the shutter button.

It’s a well-established precedent that it’s the person who takes the picture who owns the rights to it but it was DeGeneres who gave Associated Press permission to republish the shot. She may not have had the right to do so.

Alternatively, perhaps she did have the right, in the way that an artist retains authorship rights over a piece of art even if most of the manual labour that went into making it came from a studio assistant. Such arrangements usually need paperwork to be legally formalised, however.

In this case, Samsung also complicated matters, as it has a big advertising deal with the Academy. A representative for Samsung responded after the selfie went viral to deny that DeGeneres was paid to use a Samsung Galaxy Note to take the picture – although the company was “delighted to see Ellen organically incorporate the device into the selfie moment that had everyone talking” – as if those were words a human being would ever utter.

Again, as in so many issues to do with Twitter, from death threats to online plagiarism, the legal system finds itself one step behind in the internet age. But if this episode leads
to the end of news stories about selfies, would that be such a bad thing?

Ian Steadman is a staff science and technology writer at the New Statesman. He is on Twitter as @iansteadman.

This article first appeared in the 09 April 2014 issue of the New Statesman, Anxiety nation

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Forget fake news on Facebook – the real filter bubble is you

If people want to receive all their news from a single feed that reinforces their beliefs, there is little that can be done.

It’s Google that vaunts the absurdly optimistic motto “Don’t be evil”, but there are others of Silicon Valley’s techno-nabobs who have equally high-flown moral agendas. Step forward, Mark Zuckerberg of Facebook, who responded this week to the brouhaha surrounding his social media platform’s influence on the US presidential election thus: “We are all blessed to have the ability to make the world better, and we have the responsibility to do it. Let’s go work even harder.”

To which the only possible response – if you’re me – is: “No we aren’t, no we don’t, and I’m going back to my flowery bed to cultivate my garden of inanition.” I mean, where does this guy get off? It’s estimated that a single message from Facebook caused about 340,000 extra voters to pitch up at the polls for the 2010 US congressional elections – while the tech giant actually performed an “experiment”: showing either positive or negative news stories to hundreds of thousands of their members, and so rendering them happier or sadder.

In the past, Facebook employees curating the site’s “trending news” section were apparently told to squash stories that right-wingers might “like”, but in the run-up to the US election the brakes came off and all sorts of fraudulent clickbait was fed to the denizens of the virtual underworld, much – but not all of it – generated by spurious alt-right “news sites”.

Why? Because Facebook doesn’t view itself as a conventional news provider and has no rubric for fact-checking its news content: it can take up to 13 hours for stories about Hillary Clinton eating babies barbecued for her by Barack Obama to be taken down – and in that time Christ knows how many people will have not only given them credence, but also liked or shared them, so passing on the contagion. The result has been something digital analysts describe as a “filter bubble”, a sort of virtual helmet that drops down over your head and ensures that you receive only the sort of news you’re already fit to be imprinted with. Back in the days when everyone read the print edition of the New York Times this sort of manipulation was, it is argued, quite impossible; after all, the US media historically made a fetish of fact-checking, an editorial process that is pretty much unknown in our own press. Why, I’ve published short stories in American magazines and newspapers and had fact-checkers call me up to confirm the veracity of my flights of fancy. No, really.

In psychology, the process by which any given individual colludes in the creation of a personalised “filter bubble” is known as confirmation bias: we’re more inclined to believe the sort of things that validate what we want to believe – and by extension, surely, these are likely to be the sorts of beliefs we want to share with others. It seems to me that the big social media sites, while perhaps blowing up more and bigger filter bubbles, can scarcely be blamed for the confirmation bias. Nor – as yet – have they wreaked the sort of destruction on the world that has burst from the filter bubble known as “Western civilisation” – one that was blown into being by the New York Times, the BBC and all sorts of highly respected media outlets over many decades.

Societies that are both dominant and in the ascendant always imagine their belief systems and the values they enshrine are the best ones. You have only to switch on the radio and hear our politicians blithering on about how they’re going to get both bloodthirsty sides in the Syrian Civil War to behave like pacifist vegetarians in order to see the confirmation bias hard at work.

The Western belief – which has its roots in imperialism, but has bodied forth in the form of liberal humanism – that all is for the best in the world best described by the New York Times’s fact-checkers, is also a sort of filter bubble, haloing almost all of us in its shiny and translucent truth.

Religion? Obviously a good-news feed that many billions of the credulous rely on entirely. Science? Possibly the biggest filter bubble there is in the universe, and one that – if you believe Stephen Hawking – has been inflating since shortly before the Big Bang. After all, any scientific theory is just that: a series of observable (and potentially repeatable) regularities, a bubble of consistency we wander around in, perfectly at ease despite its obvious vulnerability to those little pricks, the unforeseen and the contingent. Let’s face it, what lies behind most people’s beliefs is not facts, but prejudices, and all this carping about algorithms is really the howling of a liberal elite whose own filter bubble has indeed been popped.

A television producer I know once joked that she was considering pitching a reality show to the networks to be called Daily Mail Hate Island. The conceit was that a group of ordinary Britons would be marooned on a desert island where the only news they’d have of the outside world would come in the form of the Daily Mail; viewers would find themselves riveted by watching these benighted folk descend into the barbarism of bigotry as they absorbed ever more factitious twaddle. But as I pointed out to this media innovator, we’re already marooned on Daily Mail Hate Island: it’s called Britain.

If people want to receive all their news from a single feed that constantly and consistently reinforces their beliefs, what are you going to do about it? The current argument is that Facebook’s algorithms reinforce political polarisation, but does anyone really believe better editing on the site will return our troubled present to some prelap­sarian past, let alone carry us forward into a brave new factual future? No, we’re all condemned to collude in the inflation of our own filter bubbles unless we actively seek to challenge every piece of received information, theory, or opinion. And what an exhausting business that would be . . . without the internet.

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 24 November 2016 issue of the New Statesman, Blair: out of exile