Summary
This report examines the legal implications of uploading another’s photo to a “cheater check” service without his consent. These services use facial recognition technology to search dating platforms for matching profiles. The legality of this practice varies significantly based on jurisdiction, applicable privacy laws, the nature of the photograph, and how the “cheater check” service processes biometric data. The analysis considers privacy laws, biometric data regulations, copyright considerations, and potential civil liability.
Understanding “Cheater Check” Services
What are “Cheater Check” Services?
“Cheater check” services like OopsBusted and Unfaithful AI allow individuals to upload photos of someone they suspect of infidelity. These services then use facial recognition technology to scan dating apps and websites for matching profiles [23] [29].
OopsBusted, for example, specifically claims to scan popular platforms like Tinder, Bumble, and Hinge to identify if the person in the uploaded photo has active dating profiles [29]. Once a match is found, the service provides reports detailing any dating profiles discovered, including profile images and text. Some services even offer premium monitoring for ongoing notifications if a partner creates new dating profiles [33].
How These Services Work
The process typically involves:
Uploading clear photos of the person under investigation
The service’s AI analyzes facial features in the uploaded images
The system scans dating platforms to find matching profiles
Reports are generated showing any discovered profiles and activities [26]
Legal Framework Analysis
Privacy Laws and Biometric Data Protection
European Union (GDPR)
Under the General Data Protection Regulation (GDPR), photographs of individuals are considered personal data [19]. When these photos are used for facial recognition, they become “biometric data,” which is classified as sensitive personal information requiring explicit consent [16]. Using someone’s photo for facial recognition without consent would likely violate the GDPR [6].
The GDPR requires:
Explicit consent for processing biometric data
Privacy impact assessments
Limits on data collection, processing, and storage [16]
United States
In the U.S., biometric privacy laws vary significantly by state:
Illinois, Texas, California, New York, and a few other states have specific protections against using someone’s biometric data without consent [14] [17].
The Illinois Biometric Information Privacy Act (BIPA) is particularly strict, requiring written consent before collecting or using biometric data [42] [50].
The California Consumer Privacy Act (CCPA) includes protections for biometric information, considering it personal information regardless of whether it’s stored with other identifying data [13] [44].
45 states allow software to identify individuals using images taken without consent, particularly when taken in public places [14] [41].
Copyright Considerations
Copyright protection typically belongs to the photographer (the person who took the photo), not necessarily the subject of the photo [51]. However:
If you took the photo yourself, you generally own the copyright and have the right to control its reproduction and distribution [59].
If someone else took the photo, uploading it without permission could potentially constitute copyright infringement [54] [56].
Right of Publicity and Privacy Torts
Beyond privacy and copyright laws, individuals may have rights under:
Right of Publicity: This protects against the commercial use of someone’s likeness without permission. Some scholars argue that this right could protect individuals against facial recognition companies [10].
Privacy Torts: Depending on the jurisdiction, uploading someone’s photo might constitute:
Invasion of privacy
Violation of right of publicity
Potentially defamation (if it suggests infidelity without basis) [52]
Jurisdictional Variations
The legality of uploading a boyfriend’s photo to a “cheater check” service varies significantly by location:
European Union: Likely illegal under GDPR, which requires explicit consent for processing biometric data [6] [19].
United States:
In states with strong biometric privacy laws (Illinois, California, Texas, New York), likely illegal without consent [14] [41].
In the remaining 45 states, potentially legal, especially if the photo was taken in public [3] [14].
Other Regions: Varies widely based on local privacy and data protection laws.
Analysis of “Cheater Check” Services’ Terms
An examination of OopsBusted’s Terms of Use (effective April 3, 2023) reveals that the service does not explicitly address the legality of uploading someone else’s photo without their consent [1]. The Terms focus primarily on protecting the service rather than guiding users on legal compliance.
Similarly, OopsBusted’s Privacy Policy focuses on how they collect and use information provided by their users but does not address the legality of uploading photos of third parties [2].
This lack of clear guidance places the legal responsibility on users to determine if their actions comply with applicable laws.
Civil Liability Considerations
Even in jurisdictions where uploading someone’s photo to a “cheater check” service isn’t explicitly illegal, it may still create civil liability [8]. The subject of the photo could potentially sue for:
Invasion of privacy
Intentional infliction of emotional distress
Defamation (if the service incorrectly identifies them as having dating profiles)
Copyright infringement (if you’re not the copyright holder of the photo)
Relationship Context Considerations
The fact that the person in question is a boyfriend does not generally grant special legal rights to use their image without consent. Intimate relationships do not override privacy laws or biometric data protections where they exist.
Conclusion
The lawfulness of uploading a boyfriend’s photo to a “cheater check” service depends on multiple factors:
Jurisdiction: The applicable privacy and biometric data laws vary significantly across regions.
Consent: Whether the boyfriend has given permission for this specific use of his image.
Photo Ownership: Who took the photo and holds copyright.
Service Provider’s Policies: How the service processes and stores biometric data.
In jurisdictions with strong privacy and biometric data protection laws (such as the EU under GDPR or U.S. states like Illinois under BIPA), uploading someone’s photo to a facial recognition service without their explicit consent is likely unlawful. In other jurisdictions with less stringent protections, it may be technically legal but could still expose the uploader to civil liability claims.
Given the complex legal landscape and potential for both criminal and civil liability, obtaining consent before uploading anyone’s photo to such services is the safest approach from a legal perspective.
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