When you publish information about someone without permission, especially personal or private information, you potentially expose yourself to legal liability even if your portrayal is factually accurate. While you should keep this potential liability in mind, the law generally gives online publishers quite a bit of breathing space to report and comment on matters of legitimate public concern, even when the person being discussed objects to the coverage. This post looks at our Citizen Media Legal Guide's section on Publishing Personal and Private Information. If you would like to read any of the previous "highlights" from the legal guide, you can find them here.
Most states have laws limiting your ability to publish private facts about someone and recognizing an individual's right to stop you from using his or her name, likeness, and other personal attributes for certain exploitative purposes, such as for advertising goods or services. These laws originally sprang from a policy objective of protecting personal privacy; the aim was to safeguard individuals from embarrassing disclosures about their private lives and from uses of their identities that are hurtful or disruptive of their lives. Over time, the law developed and also recognized the importance of protecting the commercial value of a person's identity -- namely, the ability to profit from authorizing others to use one's name, photograph, or other personal attributes in a commercial setting.
There are two main types of legal claims that relate to unauthorized publication of personal and private information:(1) publication of private facts and (2) unlawful use of name or likeness.
Publication of Private Facts: The legal claim known as "publication of private facts" is a species of invasion of privacy. You commit this kind of invasion of privacy by publishing private facts about an individual, the publication of which would be offensive to a reasonable person. This legal claim can only be successful, however, if the facts in question are not legitimately newsworthy.
So, for instance, if you disclose the fact that your neighbor has an embarrassing health condition, you might be liable for publication of private facts. If, however, this medical condition is particularly relevant to some topic of public interest -- say, your neighbor's fitness to serve in public office, a court might find that your publication is lawful.
Determining what facts are of legitimate public concern is often difficult to determine, so you may want to get permission before disclosing potentially embarrassing information about an individual you interview or write about. If your work sometimes involves this kind of publication, then you should see the Publication of Private Facts section of our legal guide for further details.
Using the Name or Likeness of Another: The legal claim known as "misappropriation of name or likeness" is a species of invasion of privacy. Over time, the courts also recognized a legal claim for violation of the "right of publicity," which is closely related. You commit misappropriation and/or violate the right of publicity when you use an individual's name, likeness, or other personal attributes without permission for an exploitative purpose. These legal claims usually apply to the use of a name or image in a commercial setting, such as in advertising or other promotional activities, but they may apply anytime you take advantage of another person's identity for your own benefit. However, individuals cannot stop every mention, discussion, or report on their lives or activities, and many states explicitly exempt news reporting and other expressive activities from liability.
For example, if you advertise your website using the photograph of a famous rival blogger (or even an unknown rival blogger) without permission, then you might be liable for misappropriation of that person’s likeness. (Another way of saying this is that you might be liable for violating the blogger's "right of publicity.") But, if you write an article commenting on the posts of that same blogger and include his picture, you generally won't be liable for using the blogger's name without permission or including the photograph for illustrative purposes. (Keep in mind, however, that copyright law might come into play.)
You might sometimes find yourself in a grey area, where you are not sure whether your intended use of someone's name or photograph is commercial or otherwise exploitative. In those situations, you should get permission using a model release and/or interview release form. If you are interested in using the names or photographs of others, especially celebrities, you should consult the Using the Name or Likeness of Another section of our legal guide for further details and links to model releases.
While these laws can create pitfalls for citizen media creators, the risks are manageable and you can take certain steps to protect yourself. Most importantly, if you stick to reporting or commenting on matters of legitimate public interest and only portray people who have a reasonable relationship to your topic, then you generally can avoid liability. You should never use someone's name or photograph solely to drive traffic to your website, but you are free to cover the public and noteworthy activities of others, including celebrities. Finally, if you are worried about legal liability, you can get consent from the individual or individuals who might be offended by your particular disclosure or use. For additional information on what practical steps you can take to avoid liability, see our legal guide section on Practical Tips for Avoiding Private Facts, Misappropriation, and Right of Publicity Claims.
Finally, you should also be aware that the federal government, as well as many states, have statutes related to collecting personal data from those who visit your website. For instance, the California Online Privacy Protection Act of 2003 requires the operator of a commercial website that collects personal information about users to conspicuously post its privacy policy on its Web site. The federal government also puts some restrictions on data that websites can lawfully gather. Congress enacted the Children's Online Privacy Protection Act to set limits on the online collection of personal information from children under 13. The Act details what a website operator must include in its privacy policy, when and how to seek verifiable consent from a parent, and what responsibilities an operator has to protect children's privacy and safety online. For information on using a website privacy policy to minimize the legal risks associated with gathering private information, see the Privacy Policy section of our legal guide.
