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  • Defamation, Privacy and Publicity

    Advertising agencies, publishers and broadcast companies produce a steady stream of messages for the general public. The content of these messages often includes information about, or images of, specific individuals—whether they are models, celebrities, employees, or people on the street. In preparing this content, publishers, broadcasters and agencies have always been aware of potential liability for claims of defamation of character or violation of an individual's rights of privacy and publicity. However, the rapid expansion of digital communications means that any company distributing information via e-mail or the web now faces many of the same legal risks. Someone may file a claim against you seeking to impose liability for economic loss or personal injury allegedly caused by some error or negligence in the content of the work that you produce. Personal injury can be either physical or emotional, including a damaged reputation. This article explains the key legal issues that communications professionals must be aware of.

    Defamation

    Defamation is intentional communication of a false statement about someone to a third party—a statement that injures the subject's good name and reputation, damages the subject's standing in the community, or deters others from associating with him or her. Defamation is a civil wrong (also referred to as a tort). In this context, civil means that the matter is a dispute between two private parties rather than a proceeding by the government against a party. The injured person can seek remedy by bringing a lawsuit against the person or company that made the false statement. The remedy will usually be in the form of damages. (There are several types of damages—more information about this in a moment). When an injured party takes legal action, he or she is the plaintiff in the matter and the individual or company that made the untrue statement is the defendant.

    There are two different categories of defamation: slander and libel.

    Slander

    Slander is oral defamation—a spoken assertion about someone that is not true. It happens when an individual tells one or more persons something false about someone else, usually in direct conversation. Other forms of communication are covered by libel.

    Libel

    Libel includes untruthful statements expressed in a fixed or permanent medium. For example, they could be in writing, on a sign, in a picture, or broadcast on radio, television or the Internet. This means that the statement has the potential to reach a very wide audience. The false statement must hold the subject up to ridicule, hatred, scorn or contempt, cause the subject to be shunned or ostracized, or to suffer mental anguish and humiliation. The individual or company responsible for printing or broadcasting the statement (for example, a newspaper, a magazine, a political organization, or a broadcaster) is open to a lawsuit by the person the statement was about.

    In the United States, most states demand a published retraction for libelous statements. A printed retraction serves as an admission of error and a public correction. Usually, the injured party does not have the right to file a lawsuit if a correction is made. Very minor mistakes in reporting, however, are not considered to be libelous. This would include such simple errors as misstating someone's age. (Incorrect information can also present someone in a false light—more about this below.) In addition, it's generally the case that government bodies and public records are exempt from libel actions.

    Defamation per se

    Certain types of untrue statements are so serious that they will always qualify as defamation. They are grouped together under the term “defamation per se.” Each of them is considered incapable of having an innocent meaning. Such accusations include:

    • Imputing that the subject has committed a crime or engaged in criminal conduct
    • Claiming that the subject has a feared illness or loathsome disease
    • Imputing personal conduct or characteristics that render the person unable to perform his or her occupation, such as stating that the person is incompetent or unreliable as a businessperson
    • Claiming that the subject has engaged in unchaste behavior or immoral acts, such as serious sexual misconduct

    If spoken, such statements are “slander per se.” If printed or broadcast, they are “libel per se.” The statement is actionable in itself without the plaintiff introducing additional facts because the harmful intent is considered to be obvious.

    Claims

    When a claim of defamation is made, the following aspects will be examined very carefully:

    Identification 

    A plaintiff must establish that the alleged defamation refers to him or her specifically. A statement is not defamation unless it identifies the person being attacked.

    Publication 

    The statement must be shown or communicated to at least one other person before it is actionable by law.

    Statement of fact 

    The statement must be reasonably understood by third parties to purport fact. If it is presented as a fact rather than as an opinion, it will be actionable. In general, opinions, satire and works of fiction—if they are clearly identified as such—are not defamatory.

    Falsehood 

    The statement must be false. If it's true and can be proven, it's not defamation.

    Actual injury 

    In a lawsuit, no one can recover damages unless he or she has suffered injury. The plaintiff will be asked to provide proof of damaged reputation, mental anguish, suffering, or economic loss.

    Liability 

    In many instances, whether or not the person who made the statement is found to be liable will depend on whether the injured party is a public figure or a private person. If a public figure is involved, the matter may be of public concern. Although libel is defined under state law, the U.S. Supreme Court has consistently ruled that First Amendment protection of free speech applies to matters of public concern. Because of this, a public figure must prove that the libelous statement was made with malicious intent. Otherwise, the statement will be protected as a form of fair commentary. Everyone has a constitutional right to express opinions or make fair comment on public figures. To recover damages, a well-known plaintiff (such as a politician, government official, celebrity, or other prominent person) who alleges libel (by a newspaper, a radio station, et cetera) must prove that the defendant made the statement with reckless disregard for the truth—perhaps even knowing that it was false. In contrast, there is greater protection for a private person. A private person does not need to prove malice on the part of the defendant, merely that some degree of negligence was involved in not checking for truthfulness before publishing the false statement.

    Legal fees

    In many instances, a defendant who is found to be liable will be ordered by the court to pay the plaintiff's attorney's fees.

    Damages

    If the defendant is found liable for defamation, the plaintiff will be awarded damages in the form of monetary compensation. The amount of money that the defendant is ordered to pay might be determined in several different ways.

    Actual damages/special damages 

    Depending on the details of the case, the amount paid to the plaintiff might be limited to actual damages and special damages. Actual damages are out-of-pocket costs that resulted directly from the defamation, such as medical bills. Special damages (also called consequential damages) are for other types of harm such as a measurable loss of business. They are awarded in an amount deemed to compensate for the specific losses named. Actual damages and special damages are not speculative or subjective. They can be easily calculated in monetary terms. They are different from general damages, which do not have evidence of a specific monetary amount.

    General damages 

    These are subjective, both in nature and in monetary value. They include such things as pain and suffering. General damages serve as compensation for losses that will continue into the future and for which no exact value can be calculated. In most cases, malice must be proved before a plaintiff can receive general damages for harm done to his or her reputation. However, in cases of defamation per se, there is no need to prove malice because such claims involve vicious statements that are considered to be obviously harmful.

    Punitive damages 

    These are also referred to as exemplary damages because, in addition to serving as a punishment of the defendant, they set an example for the public. They may be awarded if the defendant acted in a particularly egregious way—willfully committing acts that were oppressive, violent, wanton or fraudulent. Punitive damages are often requested by plaintiffs in lawsuits, but they are seldom awarded by the court.

    Nominal damages 

    At the other end of the scale, the court may order the defendant to pay only a small (nominal) amount of money. Nominal damages may be awarded if a wrong occurred but the actual harm was minor. This sometimes happens in cases where the plaintiff is a public figure. A small amount of money may be awarded to acknowledge that the plaintiff was right but did not suffer any substantial injury.

    Privacy

    The next issue that communications professionals need to be aware of is the right of privacy. U.S. law recognizes each person's right to live without being subjected to unwarranted and undesired public scrutiny. Essentially, this is the right to be let alone, free from intrusion into matters of a personal nature. Violation of this right constitutes an invasion of privacy, which is a civil wrong. In general, there are four different categories of invasion:

    Intrusion

    This refers to an aggressive and shocking intrusion on reasonably expected solitude. It sometimes occurs in newsgathering, such as when paparazzi invade someone's privacy by trespassing on private property to photograph the person, thereby unreasonably interfering with his or her seclusion. Intrusion can also include such things as wiretapping or reading someone else's mail.

    Public disclosure of private facts

    Everyone has the right to keep personal matters to oneself, and to keep others from disclosing private facts that are not of legitimate concern to the public. It is an invasion of privacy if someone causes a person embarrassment and humiliation by publicizing information about that person's private affairs that reasonable individuals would find to be objectionable.

    False light

    This means publicizing information about a person that unreasonably creates an untrue or misleading portrayal. It can include such things as falsely attributed acts or beliefs. False light claims are not recognized in all states. In jurisdictions where they are recognized, the misrepresentation does not need to be defamatory, but it must be made with knowledge of its inaccuracy and it must be offensive or objectionable in some way to a reasonable person.

    Appropriation and exploitation

    This means the use of a person's name, likeness, voice or other aspects of personal identity without permission for commercial purposes. Protection against this category of invasion is usually called the right of publicity.

    Publicity

    Each person has the exclusive legal right to control and profit from the use of his or her identity (name, image, personality, voice, et cetera) to promote and sell goods or services. Appropriation of someone's identity without consent violates that person's right of publicity. However, the extent of legal protection varies from state to state. The issue is further complicated by the fact that many cases bump up against federally protected free speech—the right to express one's thoughts and opinions in a free society. In each case, the challenge for the court is to find an appropriate balance between the plaintiff's right of publicity according to that state's laws and the defendant's right of free speech as guaranteed by the First Amendment to the U.S. Constitution. In order to do this, distinctions are made between three different categories of use:

    Creative use

    If the defendant has created a work of pure fiction such as a novel, any alleged resemblance between an actual person and a character in the work will not usually be regarded as a violation. When aspects of someone's personal identity are used in fine art such as a painting, drawing or sculpture, the use will not usually be regarded as a violation. The original artwork may be displayed and sold without a problem.

    Matters of public interest

    If someone is a public figure or becomes involved in newsworthy events, his or her right of publicity is not violated by media coverage. The law allows exceptions to the right of publicity when someone's identity is used for educational or editorial purposes, such as in coverage of news, public affairs, sports, or political campaigns. This makes it possible to produce such things as magazine articles, books, and documentaries about individuals.

    In these first two categories, free speech is the starting point. The use of someone's identity is generally allowed because prohibiting such use would be an unconstitutional restraint on free speech. However, the third general category of use is not considered to be a form of free speech because it is done primarily with the intention of producing a profit:

    Commercial use

    Permission must be obtained before aspects of someone's identity may be used in connection with the advertising or sale of goods and services. This includes such things as a name or likeness (even a look-alike or sound-alike) in an advertisement or on a T-shirt, coffee mug, postcard or any other merchandise. Appropriation of identity and exploitation of it for commercial gain may result in a lawsuit. The onus will be on the plaintiff to prove that there was unauthorized commercial use that violated his or her right of publicity. For example, unauthorized use of a celebrity's name in connection with a product might appear to be an endorsement, which would have the effect of increasing sales.

    Confusion arises when a particular use doesn't fit neatly into just one category. Some uses are hybrids. For example, when a depiction from a work of fine art is subsequently applied to a commercial product. In an attempt to sort out these issues, a recent decision by the California Supreme Court emphasized the concept of “transformative” use. This is an idea that has been borrowed from copyright law, where it refers to fair use of material that would otherwise be protected, provided that it is used in a way or for a purpose that is different from the original to such an extent that the expression or meaning becomes essentially new.

    In the context of publicity rights, a “transformative” commercial work might be interpreted as primarily an expression of the artist's or designer's own ideas rather than a mere likeness of a particular individual. By adding significant creative elements, the artist is creating a new meaning for the image. On a case-by-case basis, this exception to publicity rights might also extend to other types of stylization or distortion such as parody and caricature. From a legal standpoint, this concept is rather vague and open to interpretation. For this reason, the California precedent might not be followed by other states.

    This is in contrast to products, services and advertisements that use more conventional images, particularly of celebrities. A literal depiction is a reproduction or imitation of a person's likeness. Such an image is not protected when it is used for commercial purposes, such as a photo of a rock musician used on a poster.

    Depending on the state, the exact details of the right of publicity may vary between celebrities and non-celebrities, and between living or deceased persons. For example, in the state of California, the heirs of a personality can continue to protect his or her right of publicity. California makes liable anyone who, without consent, uses a dead celebrity's name or likeness to promote products or services within seventy years after death. (There are even legal firms that specialize in managing the licensing rights of dead celebrities such as James Dean and Marilyn Monroe, and they generate significant licensing income for the celebrities' estates.)

    For creative professionals, the bottom line is that you must obtain permission before using aspects of anyone's personal identity for commercial purposes. The rights of privacy and publicity makes it necessary to obtain signed releases when working with models, even if they are employees of your firm. Whenever you are creating and distributing content that includes references to, or images of, real people, and those individuals are clearly recognizable, you must be cautious about issues of defamation, privacy and publicity.

    About the Author: 

    Shel Perkins is a graphic designer, management consultant and educator with more than twenty years of experience in managing the operations of leading design firms in the U.S. and the U.K. He has served on the national boards of AIGA and the Association of Professional Design Firms. He has been honored as an AIGA Fellow "in recognition of significant personal and professional contributions to raising the standards of excellence within the design community." The third edition of his best-selling book, Talent Is Not Enough: Business Secrets For Designers, is available from New Riders. 

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