Are Snapchat Geofilters Infiltrating Property Rights?

by Taylor E. Cooper, Senior Associate

Introduction

It’s a typical Friday night, and you’re at home sharing a meal with your favorite people. You pull out your phone to take a Snapchat[1] of everyone gathered around the table. You snap the photo, but the lighting didn’t quite turn out like you planned. Typical. As you’re swiping your finger, going through the different lighting filters, you come across colorful images and text bordering your photo. The bordering reads, “Happy Birthday, Janine!” Your first thought is, “Who is Janine?” Shortly after, however, you think, “What is this filter and how did it get here?” To answer these questions: (1) I’m not sure; and (2) the feature is called a Snapchat Geofilter. Understanding how it got there, however, is more technologically and legally complex.[2]

Geofilters can be purchased on the Snapchat website and, after entering Snapchat’s website, can be completed in four easy steps: first, design your Geofilter; second, choose the dates when you want the Geofilter to be active; next, choose the area the Geofilter will “inhabit”; and, finally, submit your Geofilter and pay Snapchat the fee for your Geofilter.[3] Seems simple enough, yes? The process, however, may have legal consequences that business and personal property owners have neglected to capitalize on under the theory of unjust enrichment.

Theory of Unjust Enrichment for Property Owners Against Snapchat

In Louisiana, to have a claim for unjust enrichment, or action de in rem verso, a plaintiff must show five things: (1) an enrichment; (2) an impoverishment to themselves; (3) a connection between the enrichment and the resulting impoverishment; (4) no just cause for the enrichment and resulting impoverishment; and (5) that no other remedy at law exists to the plaintiff.[4]

Additionally, it is well known that a landowner’s right to exclude unwanted people and objects from his property is one of the core tenets of property law.[5] Thus, it very easily can be ascertained that Snapchat is being enriched to the impoverishment of a property owner’s right to exclude unconsented objects. Although it is very easy to explain the enrichment, connection of the enrichment and resulting impoverishment, and how Snapchat has no cause for its enrichment, explaining parts of the impoverishment and how there is no remedy available at law requires a modern approach to property rights and the right to exclude.

Proving an Impoverishment

An impoverishment traditionally infers a diminution of value in property[6] or even could be attained by unwillingly taking a personal risk.[7] That being said, it would be ridiculous to theorize that the courts could calculate the value lost in a theoretical property right. Despite this limitation, a well-founded tradition exists in Louisiana law allowing nominal damages to suffice to meet necessary damage requirements.[8] Because relief can only be granted upon a showing that damages have been sustained, many Louisiana cases have relied on nominal damage declarations to protect the rights of aggrieved parties in rendering a judgment[9]. Likewise, the property rights affected by intangible objects[10] cannot be protected without the use of nominal damages to substitute and comprise the monetary amount required for the damage sustained.

Therefore, in order to be sufficient as an impoverishment of the property owner’s rights, courts should assign nominal damages for the detriment caused to the property owner’s right to exclude.[11] This solution would protect the fundamental right of a property owner to exclude unwanted objects—physical or virtual—from his property and allow a plaintiff suing under unjust enrichment to move forward to the next prong of the unjust enrichment analysis.

No Remedy Exists to Protect Property Rights from Virtual Intrusions

An important prong in the unjust enrichment analysis is proving that there is no other remedy available under which a plaintiff can recover.[12] The theory of unjust enrichment does not fall necessarily into a particular area of law, such as contracts, torts, or property, but is based on equitable principles when the enrichment is not justified in law or contract;[13] as such, unjust enrichment must be a last resort for plaintiffs.[14] In support for the argument of unjust enrichment as posed in the Introduction’s hypothetical, the property owner cannot defend his property rights under any other theory of law. To claim a traditional tort of trespass or nuisance there has to be either a physical intrusion[15] or a significant harm to the property or property owner.[16] Similarly, the plaintiff has no contractual relationship with Snapchat that would confer any rights allowing the property owner to limit or stop Snapchat’s actions. Thus, the equitable principles behind unjust enrichment should be employed to protect an individual’s property rights against companies placing virtual objects onto private property and receiving undeserved money in connection withthe exploitation of the individual’s property rights. Otherwise, there is no recourse for property owners to exclude Snapchat from receiving monetary gain at the expense of personal property rights.

Conclusion

A property owner logically has a monetary interest and investment in the property he owns. Following from this interest and investment, it does not seem logical that Snapchat or other companies employing similar technology can reap monetary gains from placing virtual objects onto private property, without compensating the property owners for “inhabiting” their spaces. To make a simple analogy, the scenario above would be congruent to a business operating in your front yard without ever giving you a nickel. In the same respect, Snapchat Geofilters allow virtual objects to bypass the law to the detriment of property owners, unless property owners can defend their rights nominally through claims of unjust enrichment.

[1] Snapchat is an application first conceived in April 2011 that initially allowed users to send pictures and videos that would auto-erase after a user-allotted time. The application quickly gained popularity with young adults and is used ubiquitously as a verb. See generally J. J. Colao, Snapchat: The Biggest No-Revenue Mobile App Since Instagram, Forbes (Nov. 27, 2012, 1:36 PM), https://www.forbes.com/sites/jjcolao/2012/11/27/snapchat-the-biggest-no-revenue-mobile-app-since-instagram/#5e7a9f147200 [https://perma.cc/6UX3-WGC2].

[2] Snapchat has described Geofilters as “creative overlays that capture where you are or what you are up to in a Snap! Create your own, and surprise Snapchatters in the locations you chose.” Snapchat, http://www.snapchat.com/geofilters (last visited Nov. 6, 2017) [https://perma.cc/9T8N-YMGW].

[3] Id. Additionally, Snapchat rates the cost of their Geofilters at dollar per square foot, but factors such as the date, time, and location that the user requests will determine the increase in cost.

[4] Baker v. McClay Properties Co., 648 So. 2d 888, 897 (La. 1995).

[5] See Andrew P. Morriss & Roger E. Meiners, The Destructive Role of Land Use Planning, 14 Tul. Envtl. L.J. 95, 101 (2000); Kaesar Aetna v. United States, 444 U.S. 164, 176 (1979).

[6] See generally Daspit v. City of Alexandria, 342 So. 2d 683, 690 (La. Ct. App. 1977).

[7] See generally Baker, 648 So. 2d at 897.

[8] See Id.. See also Green v. Farmers’ Consol. Dairy Co., 37 So. 858 (La. 1905).

[9] See generally Graham v. Western Union Telegraph Co., 34 So. 91 (La. 1903); Green v. Farmers’ Consolidated Dairy Co., 37 So. 858 (La. 1905); Bourdette v. Sieward, 31 So. 630 (La. 1902); See also 6 La. Civ. L. Treatise, Law Of Obligations § 7.20 (2d ed.)

[10] Restatement (Second) of Torts § 158 (Am. Law Inst. 1965) (Traditional notions of trespass require the intruding object to have a physical presence to give rise to a trespass action).

[11] See generally Graham, 34 So.; Green, 37 So. Bourdette, 31 So.; See also 6 La. Civ. L. Treatise, Law Of Obligations § 7.20 (2d ed.)

[12] Baker, 648 So. 2d at 897.

[13] See Edmonston v. A-Second Mortg. Co., 289 So. 2d 116, 122 (La. 1974).

[14] Baker, 648 So. 2d at 897.

[15] See Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389-90 (Colo. 2001) (The court in Van Wyk discussed the “physicality” requirement to sustain trespass actions); See also Restatement (Second) of Torts § 158.

[16] Id.§ 821D cmt. d. A significant harm could be a dog barking or physical property damage cause by the nuisance.

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