Statutory Rights to Privacy
Under some jurisdictions, the right to privacy is governed exclusively by statutes and such states have no common law right of privacy[i]. Such statutes prohibit the use of a person’s name, portrait, or picture for advertising or trade purposes without prior written consent. Statutes also provide that injunctive relief and damages may be recovered by such persons whose name, portrait, or picture is used for advertising purposes or for the purposes of trade without consent[ii].
The Civil Rights Law makes it a misdemeanor to use a person’s name or picture for advertising or trade purposes without his/her consent and gives such person a cause of action for damages[iii].
The major federal laws on privacy are:
- the Fair Credit Reporting Act, which bars credit agencies from sharing credit information with anyone but authorized customers, and gives consumers the right to review their credit records and be notified of credit investigations for insurance and employment;
- the Privacy Act of 1974, which bars federal agencies from letting information they collect for one purpose be used for a different purpose;
- the Right to Financial Privacy Act, which sets strict procedures when federal agencies want to look through customer records in banks;
- the Video Privacy Protection Act, which prevents retailers from disclosing video-rental records without the customers’ consent or a court order and also forbids the sale of the records; and
- the Computer Matching and Privacy Protection Act of 1988, which regulates computer matching of federal data for verifying eligibility for federal benefits programs or for recouping delinquent debts, and requires the government to give individuals a chance to respond before taking adverse action.
There are two types of privacy interests that may be constitutionally protected[iv]:
- the individual interest in avoiding disclosure of personal matters, and
- the interest in independence in making certain kinds of important decisions.
In Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (U.S. 2004), the court held that the statutory privacy right protected by 5 U.S.C.S. § 552(b)(7)(C) goes beyond the common law and the U.S. Constitution.
The privacy statute is to be strictly and narrowly construed because it is in derogation of the common law and semi penal in nature. The liberal construction of the right of privacy provisions is necessarily subject to constitutional limitations, and accordingly, such sections must be accorded an interpretation which avoids constitutional infirmities.
Under some state statutes, the courts, in order to find an actionable invasion of privacy, first determine that the publication which the plaintiff finds objectionable constitutes a use of his/her name or likeness for advertising purposes, or for purposes of trade, within the meaning of the statute.
The language of 26 U.S.C.S. § 7431(c), a privacy statute proscribing unauthorized disclosure of tax return information, establishes a minimum statutory damages amount that can be awarded absent a finding of actual damages[v].
The statutory cause of action for misappropriation of a name consists of the same elements as a common law cause of action plus two additional ones. A plaintiff must prove a knowing use of his/her name or likeness for purposes of advertising or soliciting purchases, and a direct connection between the use and the commercial purpose[vi].
[i] Clark v. Elam Sand & Gravel, Inc., 4 Misc. 3d 294, 296 (N.Y. Sup. Ct. 2004).
[ii] McGraw v. Watkins, 49 A.D.2d 958 (N.Y. App. Div. 3d Dep’t 1975).
[iii] Gautier v. Pro-Football, Inc., 304 N.Y. 354 (N.Y. 1952).
[iv] Arakawa v. Sakata, 133 F. Supp. 2d 1223 (D. Haw. 2001).
[v] Kehoe v. Fid. Fed. Bank & Trust, 2004 U.S. Dist. LEXIS 11464 (S.D. Fla. June 14, 2004).
[vi] Newton v. Thomason, 22 F.3d 1455 (9th Cir. Cal. 1994).