The Four (+) Rights of Privacy

If you've ever used real people in your work you've probably asked or at least wondered, "are they going to sue me?"

Anybody can sue you at any time, for any reason, and there's not much you can do about it. So the better question is, "if they sue me, are they likely to win?"

This blog is not legal advice and if you're asking these questions you need counsel specific to your facts and circumstances. And you need to know that these kinds of claims are governed by state law, so your advice needs to be state-specific. Here, though, is a general list of issues to consider.

Rights of Privacy


There are several different types of "invasion of privacy."  

•  Disclosure  

This type of invasion of privacy is triggered by the public disclosure of private facts in which the disclosure is highly offensive to a reasonable person. The facts disclosed are true, and no element of falsity is involved.

• Intrusion

You're at risk for this type of claim if you intrude, physically or otherwise, into the solitude or seclusion of your subject in a manner which is highly offensive to a reasonable person. Think of it as crossing without permission into their "zone of privacy." (Example: placing a hidden camera in the subject's bedroom.)

• Appropriation

This form of invasion of privacy involves the unauthorized commercial use of a person's identity. It is similar to the right of publicity (see below), but here's the basic difference: an infringement of the right of publicity focuses on financial injury, while an invasion of "appropriation privacy" focuses on how it makes the subject feel.

• False Light

Invasion of privacy by "false light" involves a publication which places the subject in a false light that would be highly offensive to a reasonable person. It's very similar to defamation. (Example: you use Jane Doe's photo in connection with a story about prostitution -- but you used the wrong Jane Doe. The innocent one sues for  invasion of privacy because you placed her in a false light).

Defamation

Defamation (libel and slander) involves publishing to others a false statement (presented as fact) that is understood to be about the subject and which harms the subject's reputation. There are different standards of proof depending on whether the subject is or is not a "public figure."

Right of Publicity

The right of publicity, in general terms, is the right to control the commercial use of one's identity. As with the various rights of privacy, courts often struggle with the task of balancing the subject's rights against First Amendment concerns you may legitimately advance.



Copyright 2011 Elizabeth T Russell. Blog content not legal advice.