Is it Legal for Your Plastic Surgeon to Post Before and After Plastic Surgery Photos Online Without Permission?
It’s a typical day: You wake up. You check your Instagram account…and lo and behold, you are greeted with your body parts, publicly displayed for the world to see on your plastic surgeon’s Instagram account or other online website. You may be recognizing yourself through moles, birthmarks, clothing, necklaces, tattoos, or simple familiarity with that you look like (obviously, you’ve been living with yourself your whole life and know what you look like!). You may be wondering, how could my plastic surgeon do this? Who else could have seen these pictures? And most importantly, is this legal?
AXIS Legal Counsel regularly represents victims of unauthorized before/after plastic surgery photos being publicly displayed without the individual’s consent, and the answers to these questions might surprise you. Read on for some answers.
Did Your Plastic Surgeon Give you Papers to Sign Telling You He/She Would be Using your Before and After Photos?
The first thing you should be trying to remember is whether you were given papers to sign by your plastic surgeon specifically authorizing them to use your before and after photos. Nearly all plastic surgery facilities and plastic surgeons make you sign paperwork. The question is whether agreement was received from you in writing to use your before and after photos.
The issue ties into a concept called “informed consent.” Medical providers in California can only perform procedures and provide services that the patient is: 1) informed about and 2) consents to. Almost always, the informed consent is in writing. Just because you consent to have a procedure performed does not mean you consent to have your before and after plastic surgery photos displayed publicly for the world to see.
HIPAA / Privacy Rights
Individuals also have privacy rights in their medical information. Depending on the nature of the photograph displayed, it is possible that your plastic surgeon has violated your rights under the Health Insurance Portability and Accountability Act (HIPAA) as well as the California Confidentiality of Medical Information Act.
HIPAA is a federal law (the CMIA is the California equivalent) that requires medical providers to only release medical information belonging to patients when specifically authorized in writing.
Rights of Publicity and Name, Likeness, and Image
In addition to privacy rights, individuals have rights to their own name, likeness, and image. This means that an individuals’ name, likeness, and/or image cannot be used by a business or company for commercial activities (i.e., advertising their services) without the consent of the person whose image is being used. There are both common law rights as well as statutory rights to pursue violations of misuses of name, likeness, and image.
Plastic Surgery Photos on Instagram and Online
The unauthorized use of before and after plastic surgery photos has exploded with the use of Instagram, which is primarily image-driven. The classic scenario involves a plastic surgery office using before and after photos of patients to advertise their services and “show off’ how good their results. These can include pictures of breast augmentations, hip lifts, hip implants, butt implants, butt lifts, Brazilian butt lifts, botox, facial tightening, facial rejuvenation, mini-lifts, face-lifts, eye-lifts, nose jobs, and a variety of other types of procedures.
Because plastic surgeons with instagram accounts often have a variety of other social media accounts, the information gets cross-posted to Facebook, Twitter, and a variety of other outlets. If the image begins spreading, it can be misappropriated and used by individuals who have no connection to the plastic surgeon or you, and who are simply using the image for their own purposes. If too much time goes by and the photographs spread too far through the internet, it can be a Herculean challenge getting them all off and removed permanently.
When Your Photos are Publicly Displayed Online
If your plastic surgery photos are displayed online, whether on an Instagram account or elsewhere, it is usually a sign that the pictures were taken via a cell phone – which is insecure and could be hacked or broken into. Although plastic surgery photos online could be blurred, on the original photo, they are not. Carrying medical information on a portable disk, cell phone, USB drive, other portable type of media often carries data security risks, as the information is not subject to security protections, audit trails, and other mechanisms. HIPAA, for example, requires facilities to have sufficient controls in place to be able to protect private patient medical information.
Getting Photos Off the Internet
The big challenge with having before/after photos spread online is the difficulty of getting them off-line if third-parties start duplicating them, spreading them, re-posting them, or otherwise saving them on locations throughout the Internet. This is one of the reasons it is so important to act quickly.
What to Do – What Not to Do
If you are the victim of a plastic surgery privacy violation in which your before and after photos are being used on your plastic surgeon’s website, Instagram account, or other location without your consent, whatever you do, do NOT notify the plastic surgeon — they will take down the photos and if they do so before the evidence has been preserved, the likelihood of being able to prove your legal claims dramatically decreases.
What you SHOULD do is contact a privacy attorney right away. Your privacy attorney will be able to preserve all the evidence online in a manner that will help the prosecution of your legal claims for violations of privacy, and then making a legal claim to the physician to attempt to resolve the dispute.
Getting Legal Help – Call Axis Today
Axis Legal Counsel is a top privacy law firm in California. In fact, we represent so many victims of privacy violations that we have been told by defense attorneys for the doctors that we handle more privacy violation claims than any other firm they know of. AXIS has a prolific privacy practice that not only spans the misuse of before and after plastic surgery photos, but whole host of other types of privacy claims. AXIS is a full-service privacy law firm and represents clients in numerous types of privacy violations, including HIPAA/medical information violations, violations by doctors, medical care providers, schools, and employers, violations of name, likeness, and image, right of publicity claims, online / internet privacy violations, and numerous others. Our practice areas include:
- HIPAA Violations
- Unauthorized Medical Disclosures
- Misuse of Name, Likeness, and Image
- Unauthorized Plastic Surgery Photos Online
- Internet Privacy Violations
- HIV Disclosures
- Right of Publicity Violations
- Workplace Privacy Disclosures
- Invasion of Privacy
- Hospital HIPAA Violations
- Rehab Facility Privacy Violations
- Media and Online Privacy Disclosures
- Data Breaches
- Financial Data Breaches
- Intrusion Upon Seclusion Privacy Violation
- Public Disclosure of Private Facts
- False Light Violations
For information on retaining AXIS Legal Counsel to represent you with respect to a privacy violation, contact email@example.com or call (213) 403-0130 for a confidential consultation, or visit our Individual Privacy Rights Practice Area, or Individual Rights Portal for more information. AXIS is a Los Angeles, California privacy law firm assisting numerous kinds of clients with a wide array of privacy matters. If you need help, getting a Los Angeles Privacy Lawyer or Orange County Privacy Lawyer like Axis Legal Counsel is fast and easy. We serve privacy clients throughout California.
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