Holding Court: Privacy
Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
The right to privacy is not recognized by the Common Law in New York. However, we do have two statutes that modified the Common Law to create a limited right to privacy. The Civil Rights Law makes it a crime for anyone to use for advertising purposes, or for the purposes of trade, the name, portrait, picture, likeness, or voice of any living person without having first obtained the written consent of such person. Besides the living, the law also protects the privacy of certain deceased performers. (Beware, Elvis impersonators!) It also makes the identity of any victim of a sex offense or of an offense involving the alleged transmission of HIV confidential. One whose privacy rights are violated under the statutes may sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture, likeness or voice and may also be awarded exemplary damages. There are certain exemptions from liability. To prevail, a plaintiff must prove that the name, portrait, picture or voice was used; it was used for the purpose of trade or advertising; there was no consent to the use; and within New York.
What’s in a name…? A surname alone may be enough if it is distinctive. If a name is not used, it is not enough that the person can be identified.
Picture or portrait. A picture need not show the person’s face. It need not even be a photo or painting. Lindsay Lohan was able to claim that an avatar of her used in a video game was a portrait. Using makeup on an actor to make him resemble another in a movie was the use of the impersonated person’s picture. The key is whether the person was recognizable.
Purposes of trade focuses on whether the publication attracts customers, helps make a profit, or draws business.
Advertising purposes requires the publication be distributed as an advertisement or a solicitation for a product or service. A good example is the use of a photo in a before and after advertisement of a plastic surgeon. It is not advertising if the picture is in a news article even if the paper has ads in it.
Written consent is required. Oral consent will not suffice.
The Civil Rights Law right to privacy runs up against the First Amendment right to free speech. If a picture is newsworthy, it is protected. Examples include dramatizations of a true crime investigation, and a picture in an article about a guide to nude beaches. There must be a reasonable relationship between the picture and the matter of public interest.
With respect to disclosure of HIV status, I had a case where I learned that an employee of the enterprise I represented was exposed to the blood of a person with HIV. I had to go to court to get a court order permitting me to tell the employee that he had possibly have been exposed to HIV so that the employee could be tested and promptly treated. A judge signed the order and put me in the most trying situation I ever faced. I made an appointment to speak with the employee (who I knew before) without telling the employee what we needed to discuss. When we met, I had to tell the employee that there was exposure to HIV – a potentially fatal situation. This required great tact and sensitivity. Fortunately, all tests showed the employee was not infected.
Let’s just keep it private.
