In an age where people’s entire lives can be digitally curated and documented, what it means to have something be private, and the expectations people feel they have in relation to privacy, can become blurry. Most of us would agree that what happens behind the doors of their home, or other private spaces, should be up to each person’s discretion to disclose. But in New Jersey, the right to privacy actually includes four different scenarios: 1) encroaching upon the seclusion of another; 2) appropriating another’s name and likeness; 3) unreasonable publicity of another’s private life, and; 4) publicity that places another’s life in a false light. Brisbee v. John C. Conover, Agency Inc., 186 N.J. Super. 335, 339 (App. Div. 1982). It’s less difficult to understand that encroaching on private property or spreading false information is morally and legally wrong. The law’s protection of privacy, however, extends in less obvious directions.
Many people don’t realize that the appropriation of another’s name or likeness, specifically for commercial purposes, is a form of invading another’s privacy (otherwise known as the person’s right to publicity). In New Jersey, “one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.” To be successful under this version of the right to privacy, the person whose privacy was invaded must show that the other used her name for a commercial purpose (such as an endorsement for a brand), that the use doesn’t serve some sort of public interest or newsworthy purpose, that the use was made without permission or consent, and that some kind of monetary injury was suffered. While the New Jersey Federal Court emphasized that this right is more strongly claimed by those with a public presence, a person doesn’t have to be a celebrity to make a claim of appropriation of his or her likeness. Interestingly enough, this can extend to fictional characters associated with the person, depending on the strength of the association between the person and the character (a cartoon depiction on Facebook or Twitter).
Unreasonable publicity of another’s private life is another major area under the umbrella right to privacy. This happens when what is publicized (in other words, disclosed to the public at large, or to a group large enough to be considered like the public) would be highly offensive to a “reasonable person” and is not of great concern to the general public. Facts that are in the public record, or facts that are not embarrassing or inoffensive are not protected. When making a legal claim, the victim must satisfy the following requirements: (1) the other person publicized the plaintiff’s private information, (2) the disclosure was without the victim’s consent, (3) a reasonable person in the victim’s position would consider the disclosure highly offensive, (4) the disclosure was of little concern to the general public, and (5) that the disclosure caused the victim to suffer some sort of monetary injury. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated with me on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.