Review this list of examples to help understand the difference between public figures/officials, limited-purpose public figures, and private figures for purposes of defamation law.

Name	Type
Town Mayor	Public Official (A mayor is an elected official and therefore is a public official for purposes of defamation law.)
George W. Bush	Public Official (The President of the United States is an elected official and therefore is a public official for purposes of defamation law.)
Laura Bush	Public Figure (The President’s wife is a person who has pervasive power and influence in society and is therefore a public figure for purposes of defamation law.)
Paris Hilton	Public Figure (Well-known celebrities have pervasive power and influence in society and are therefore public figures for purposes of defamation law.)
Bill Gates	Public Figure (As the head of a major corporation and one of the richest men in the world, Bill Gates is a public figure for purposes of defamation law.)
Roger Clemens	Public Figure or Limited-Purpose Public Figure (Roger Clemens is a well-known athlete and likely to be considered a public figure; at a minimum, he would be a limited-purpose public figure as to issues involving sports.)
Local expert on teen suicide	Limited-Purpose Public Figure (The expert would be a limited-purpose public figure because she has distinguished herself in this particular field.)
Church pastor who decries abortion	Limited-Purpose Public Figure (The pastor would be a limited-purpose public figure because he thrust himself to the forefront of a particular controversy in order to influence the resolution of the issue.)
Local grocery store manager	Private Figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)
Your shy neighbor	Private figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)

"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.

The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.

The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.

Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes and translating from recordings and the need to edit a speaker's comments into a coherent statement. The Court stated:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results in a material change in the meaning conveyed by the statement. (citations omitted)

The Court went on to note the use of quotation marks to directly attribute inaccurate statements to the speaker "bears in a most important way on [this] inquiry, but it is not dispositive in every case." Generally speaking, a publisher is given more leeway for inaccuracies when he is interpreting his sources than when he is purporting to be providing a "direct account of events that speak for themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971).

Some examples of statements that courts have found to be "substantially true":

• A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).


• A statement that an animal trainer beat his animals with steel rods, when actually he had beaten them with wooden rods. See People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995).


• A statement that a father sexually assaulted his stepdaughter 30-50 times, when the stepdaughter testified he had done so only 8 times. See Koniak v. Heritage Newspapers, Inc., 198 Mich. App. 577 (1993).


• A statement that a man was sentenced to death for six murders, when in fact he was only sentenced to death for one. See Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del. Super. Ct. 1998).


• A statement that Terry Nichols was arrested after the Oklahoma City Bombing, when actually he had only been held as a material witness. See Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 2005).


• A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim.

This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false.

All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. For example, if you were to say "In my opinion, Danielle is failing out of school" it would likely lead your readers to assume that there are some unstated facts you relied on to draw your conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if you state "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information you are basing the opinion on, and allows the reader to come to his own conclusion.

Compare the following two statements:

• "During the last six months I've seen Carol in her backyard five times at around 1:30pm on a weekday seated in a deck chair with a beer in her hand. I think Carol must be an alcoholic."


• "I think Carol must be an alcoholic."

The first example states true, non-defamatory facts upon which a reasonable conclusion (that Carol is an alcoholic) is based, and also emphasizes the limits of your knowledge (that you only saw Carol five times). It would be protected as a statement of opinion. Under the second example, readers would likely assume that there are unstated, defamatory facts upon which your conclusion is based. Therefore it would likely fall outside of the privilege.

Keep in mind that even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply. For example, if you say that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology.

To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context.

Distinguishing Between Statements of Fact and Opinion

In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim.

Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common-sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion.

Some examples of protected opinions include the following:

• Statements in the "Asshole of the Month" column in Hustler magazine that described a feminist leader as a "pus bloated walking sphincter," "wacko," and someone who suffers from "bizarre paranoia" were protected opinion because the context of the magazine and column made it clear that the statements were "understood as ridicule or vituperation" and "telegraph to a reader that the article presents opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).


• Statement in the New York Post that referred to the plaintiff as a "fat, failed, former sheriff's deputy" was protected opinion because it was hyperbole and had an "alliterative quality" with a "rhetorical effect indicative of a statement of opinion." Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).


• Statements on a radio talk show that described the plaintiff as a "chicken butt," "local loser" and "big skank" were not defamatory because they were "too vague to be capable of being proven true or false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).


• A cartoon of a noted evangelist leader fornicating drunk in an outhouse with his mother because the parody was so outrageous it could not "reasonably be understood as describing actual facts" about Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

Keep in mind, however, that you can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude you had evidence that Alex had indeed stolen the money, and that you intend the statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions.

Context and the Totality of the Circumstances

In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy-era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion.

The Internet presents particular issues for the courts, as it is a medium where the lack of face-to-face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context.

But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted:

Here, the general tenor, the setting and the format of [the] statements strongly suggest that the postings are opinion. The statements were posted anonymously in the general cacophony of an Internet chat-room in which about 1,000 messages a week are posted about [the particular company]. The postings at issue were anonymous as are all the other postings in the chat-room. They were part of an on-going, free-wheeling and highly animated exchange about [the particular company] and its turbulent history. . . . Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege.

To summarize, the factors courts often use to determine whether a statement is a protected opinion are:

• What is the common usage and specific meaning of the language used?


• Is the statement verifiable? Can it be proven false?


• What is the full context of the statement?


• What are the social conventions surrounding the medium the statement occurred in?

Note that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.

The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records.

The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows you to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.

Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

1. Your source is an official public document or statement by a public official on a matter of public concern;


2. You properly attribute the information to that source; and


3. You fairly and accurately portray the information from the document or statement.

Sources Covered By the Fair Report Privilege

While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered.

Examples where the fair report privilege would probably apply include:

• Statements made by a judge in a trial
• A speech made by a city council member during a council meeting
• Testimony during a trial
• Facts recorded in a final police report
• Analysis reported in an Environmental Protection Agency survey

The privilege would probably not apply to:

• Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
• Gossip overheard on the courthouse steps
• Offhand remarks made by a government official in a private setting
• Statements made in a draft government report

Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.

Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.

Ensuring That Your Use of Sources is "Fair and Accurate"

Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony you relied on is later convicted of perjury, the privilege still applies if you accurately reported and attributed the testimony he provided in the first place. It would apply even if you had knowledge that the witness was lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.

Generally, courts will follow rules of accuracy that echo the "gist" and "sting" rule developed to test for "substantial truth." See the section on Substantial Truth for more information.

But what is critical is that you accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when you are "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege.

In general, courts will look at whether you acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one-sided.

Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.

Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.

Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

1. A responsible, prominent organization or individual;


2. Makes a serious charge on a matter of public interest;


3. Against another public figure or organization; and


4. The charge is accurately and disinterestedly reported.

Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).

The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:

What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

Edwards, 556 F.2d at 120.  The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.

Examples of the Neutral Reportage Privilege

Examples of instances where courts have applied the neutral reportage privilege include:

• Newspaper report that a state auditor accused a town trustee of faking a snow emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996).
• A newspaper report that a political campaign brochure accused the county's Italian-American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988).
• A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).

Differing State Approaches to the Neutral Reportage Privilege

Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways:

• Private figure plaintiffs: Edwards v. National Audubon involved an instance where the person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved.


• Trustworthy and prominent sources: Few sources are more trustworthy and prominent than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story.


• Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Consult your individual state defamation section, but also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.

If you republish a news item from a "reputable news service," you may be covered by a privilege called the "wire service defense." This defense to a defamation claim is distinct from the immunity provisions in the section 230 of the Communications Decency Act (commonly referred to as CDA 230 immunity), which may also cover if you republish content from a third-party. See the section on Publishing the Statements and Content of Others for more information.

Generally speaking, in states that recognize the wire service defense, it will apply if:

1. You republish a news item from a reputable news agency;


2. You did not know the information was false;


3. The news item on its face does not indicate any reason to doubt its veracity; and


4. You do not substantially alter the news items when republishing it.

In the Internet context, it is not clear how wide a net is cast by the term "reputable news agency." Traditional wire services such as the Associated Press and United Press International would likely be covered, but courts have not yet looked at the wire-service defense in light of RSS feeds and similar distribution tools.

Keep in mind that rewriting news items in a blog format will limit your ability to invoke the wire service defense. When you choose to modify and comment on the material, you will likely lose the ability to assert this defense.

Not all states recognize the wire service defense, so you should consult your state defamation section of this legal guide for more information.

"Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts.

Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.

Because each state has its own statute of limitations for defamation claims, which vary between one and three years, you should refer to the State Law: Defamation section to find out what the specific statute of limitations is in your state.

Determining When the Statute of Limitations Period Begins

Generally speaking, the limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff).

This rule is relatively easy to apply when a defamatory statement is spoken to a third person. But what about situations where publication is to a mass audience, such as on the Internet? In these situations, could the statute of limitations begin anew at the time of each publication, such that the statute of limitations could restart every time someone reads a blog post or finds an archive copy of a newspaper in a library, even if the original material was published years ago?

Single Publication Rule

Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re-publication has started a new statute of limitations period only when online material is altered in a significant way: be careful to consider this if you are thinking of substantially editing or rewriting old material. See your individual state section for information on whether the state recognizes the single publication rule.

Note: This page covers information specific to Arizona. For general information concerning defamation, see the Defamation Law section of this guide.

Arizona Elements of Defamation

In Arizona, the elements of a defamation claim are:

1. a false statement concerning the plaintiff;
2. the statement was defamatory;
3. the statement was published to a third party;
4. the requisite fault on the part of the defendant; and
5. the plaintiff was damaged as a result of the statement.

Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).

To be “defamatory,” a statement must be false and bring the defamed person into disrepute, contempt, or ridicule, or impeach her honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (Ariz. 1989).

These elements of a defamation claim in Arizona are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Arizona distinguishes between statements that constitute libel per se and libel per quod. Libel per se are written communications which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disrepute, contempt or ridicule” or “impeach the honesty, integrity, virtue or reputation.” Ilitzky v. Goodman, 57 Ariz. 216, 220‑21 (Ariz. 1941). In contrast, libel per quod consists of written communications which “on their face do not fall within the definition [of defamation] but which by reason of special extraneous circumstances actually do.” Id. at 221.

Arizona also distinguishes between statements that constitute slander per se and slander per quod. In Arizona, a statement that does any of the following is slander per se:

• Charges a contagious or venereal disease, or that woman is not chaste; or
• Tends to injure a person in his profession, trade, or business; or
• Imputes the commission of a crime involving moral turpitude.

Modla v. Parker, 495 P.2d 494, 4 n.1 (Ariz. Ct. App. 1972). Slander per quod are “all slanderous utterances which are not slanderous per se.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 1, 6 n.4 (Ariz. Ct. App. 1985) approved as supplemented by Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (Ariz. 1986).

The distinction between libel per se and per quod and slander per se and per quod matters because it effects the type of damages a plaintiff must allege to prevail. To recover for libel or slander per quod, a plaintiff must allege special damages, i.e., lost profits or other "pecuniary loss." Boswell, 152 Ariz. 1, 6 n.4. In contrast, to recover for libel or slander per se, a plaintiff does not have to allege special damages and may instead allege non-pecuniary damages, such as damage to his reputation. Moreover, in cases of libel or slander per se, damages may be presumed if:

1. The plaintiff is a private figure and the alleged defamatory statement involves a matter of purely private concern; Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 481 (Ariz. 1986) or
2. Actual malice is proven. Id.

Public Officials

Arizona courts have considered whether certain lower-level government employees qualify as public officials. They have held that the following individuals, among others, are public officials:

• Teachers, Sewell v. Brookbank, 119 Ariz. 422, 425 (Ariz. Ct. App. 1978);
• FAA inspectors, Lewis v. Oliver, 178 Ariz. 330, 337 (Ariz. Ct. App. 1993);
• A student senator in the Student Senate at the University of Arizona, Klahr v. Winterble, 418 P.2d 404, 412 (Ariz. Ct. App. 1966);
• A sheriff and his deputies, Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343 (Ariz. 1989).

Public Figures and Limited-Purpose Public Figures

In Arizona, to classify a person as a public figure, the person must have achieved “‘such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Dombey, 150 Ariz. at 480 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

The Arizona Supreme Court has recognized that an individual may become a limited-purpose public figure for a certain event or controversy when he “‘voluntarily injects himself or is drawn into a particular public controversy. . . .’” Id. (quoting Gertz, 418 U.S. at 351).

In determining whether a person is a limited-purpose public figure, Arizona courts will consider whether the person has “‘thrust[] himself or his views into public controversy to influence others’” and whether the person’s “‘position with respect to matters of public concern gives him access to the media on a regular and continuing basis.’” Id. at 483 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).

The Arizona Supreme Court has held that a person “‘is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.’” Id. (quoting Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167 (1979). Rather, the person must voluntarily assume a position that invites attention. Id. at 485 (quoting McDowell v. Paiewonsky, 769 F.2d 942, 950 (3rd Cir. 1985). In that regard, the Court has stated that “doing business with the government, being swept up in a controversy over an issue of public interest or concern, being named in articles creating a public controversy, and defending oneself against charges leveled in the media are all insufficient to automatically transform a private individual into a public figure.” Id. at 484.

Arizona courts and the 9th Circuit have held the following individuals, among others, to be limited-purpose public figures:

• A “publicly self‑acknowledged former hoodlum and organized crime enforcer” who testified against a mob boss in exchange for immunity from prosecution. Scottsdale Publ’g, Inc. v. Superior Court, 159 Ariz. 72, 73, 74 (Ariz. Ct. App. 1988).
• A World War II veteran who had authorized a biography and solicited press coverage of that work. Thomas v. Los Angeles Times Commc’ns. LLC, 45 Fed. Appx. 801, 803 (9th Cir. 2002).
• The insurance agent of record for an Arizona county, where the insurance agent made recommendations resulting in substantial expenditures from the public and financially benefited from his position, although he was not actually employed by the county. Dombey, 150 Ariz. at 484‑85.
• An individual, in suing his former employer for defamation, who had contacted the media regarding his claims of wrongful termination and sent his complaint to approximately twenty companies in related business fields. Prendeville v. Singer, 155 Fed. Appx. 303, 305-06 (9th Cir. 2005).

On the other hand, Arizona courts have found the following individuals and organizations, among others, to be private figures:

• A company selling an electronic parts catalog where the company was not involved in any public controversy prior to the defendant’s allegedly defamatory statements. The Court specifically held that the company’s use of advertising did not make it a public figure. Dealer Computer Servs., Inc. v. Fullers’ White Mountain Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 (D. Ariz. Oct. 16, 2008).
• A corporation selling diamonds and other precious stones, despite its use of mail and telephone solicitations. Antwerp Diamond Exch. of Am. Inc. v. Better Bus. Bureau of Maricopa Cnty., Inc., 130 Ariz. 523, 527 (Ariz. 1981) disapproved on other grounds in Dun & Broadstreet v. Greenmoss Builders, 472 U.S. 749, 753 n.1 (1985).

Actual Malice and Negligence

Arizona courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages. Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (Ariz. 1977).

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

Arizona courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Comment Privilege

In Arizona, the fair comment privilege “is limited to discussions of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community.” Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968).  If actual malice is shown, however, the privilege is defeated. Id.

The fair comment privilege protects both media and non-media defendants when the plaintiff is a public official.  The Arizona Supreme Court ruled that regardless of the defendant's media status, "when the plaintiff is a public official and the speech is of public concern, [then] the plaintiff bears the burden of showing that a statement is provably false before an action for defamation can lie." Turner v. Devlin, 174 Ariz. 201, 205 (1993).

The Arizona Supreme Court in the past has also explicitly recognized pure opinion as protected speech. MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (finding a statement "was pure opinion and not actionable").  It is unclear whether this recognition survived Turner and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1993), however.

Fair Report Privilege

In Arizona, the precise scope of the fair report privilege, also known as the public records privilege, is not clear because there is only one case in which the Arizona courts have applied the privilege.

In Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 147 (Ariz. Ct. App. 1989), the Court of Appeals of Arizona held that the “public records privilege” applied to articles which were “a fair and accurate abridgment of the public records used.” In that case, the Arizona Republic published articles about the apprehension of a hitman at a local restaurant, which it described as a “hangout for narcotics dealers and users” owned by a man being investigated for fraud and attempted extortion. Id. at 145. The owners of the restaurant filed suit for defamation. The information in the articles was obtained from interviews with police officers, affidavits submitted to support searches of various locations, a grand jury indictment, and a booking slip on file at the Phoenix Police Department. Id. at 145‑46. The Court reviewed the articles, the search warrant affidavits, grand jury indictment, and booking slip and concluded that although the newspaper may have relied on interviews with police officers, which are not a public record, because the information obtained was available in the affidavits, indictment, and booking slip, the privilege applied. Id. at 146‑47.

Neutral Reportage Privilege

The CMLP has not identified any cases in Arizona concerning the neutral reportage privilege. If you are aware of any, please contact us. The 9th Circuit has mentioned the adoption of the neutral reportage privilege in other jurisdictions but does not appear to have specifically adopted it itself. See Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002).

Wire Service Defense

A federal district court in Arizona has applied the wire service defense in at least one case. In In re Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 931 F. Supp. 1487, 1492 (D. Ariz. 1996), the court held that the defense applied to an ABC-affiliate in Phoenix that broadcast an edition of “Prime Time Live” but played no part in the planning, reporting, production, or editing of the broadcast.

Retraction or Correction

By statute in Arizona, the type of damages a plaintiff may recover from a newspaper, magazine, or radio or television broadcaster can be limited by the publication of a retraction. A.R.S. § 12‑653.02 provides:

In an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast, the plaintiff shall recover no more than special damages [i.e. damages with respect to the plaintiff’s property, business, trade, profession or occupation] unless a correction is demanded and not published or broadcast, unless the plaintiff shall prove the publication or broadcast was made with actual malice. The plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. The notice and demand shall be served within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.

If a correction is demanded within the time period prescribed by A.R.S. § 12‑653.02 and a correction is not published or broadcast within three weeks, the plaintiff may recover damages for loss of reputation and punitive damages if she can prove actual malice. A.R.S. § 12‑653.03.

The applicability of the retraction statute in all cases in questionable because the Arizona Supreme Court has held that the retraction statute violates art. 18, § 6 of the Arizona constitution to the extent that it eliminates “general damages for both loss of reputation and emotional harm, preventing those damaged by defamation from recovering general damages for actual injury.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 19 (Ariz. 1986).

The retraction statute also does not apply not apply “to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.” A.R.S. § 12‑653.05.

At least one federal court in Arizona has stated that the retraction statute applies only to “libel actions based on newspaper or magazine articles” and does not apply to comments made on an online forum. Dealer Comp. Servs. v. Fullers’ White Mt. Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 at *19 (D. Ariz. Oct. 16, 2008).

Other Statutory Protections for Periodicals and Broadcasters

A.R.S. § 12‑653 provides:

An action for damages shall not lie against the editor, publisher, or proprietor of a newspaper or periodical for publication of a report, proceedings or other matter published at the instance of a public officer acting in compliance with law.

A.R.S. § 12‑652 provides:

1. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of the owner, licensee or operator, shall not be liable for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or agent or employee has failed to exercise due care to prevent publication or utterance of the statement in the broadcast. The exercise of due care shall be construed to include a bona fide compliance with federal law or regulations of a federal regulatory agency.
2. An owner, licensee or operator, or the agents or employees of such owner, licensee or operator of a station or network of stations shall not be liable for damages for defamatory statements published or uttered over the facilities of such station or network by or on behalf of a candidate for public office.
3. In an action for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only the actual damages alleged and proved.

CMLP has not identified any Arizona cases in which these statutes have been applied. If you are aware of any, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. See A.R.S. § 12‑541. The Court of Appeals of Arizona has stated that the general rule is that the statute of limitations begins to run upon publication; however, the Court has also created an exception to the general rule and held that the statute of limitations may instead begin to run upon discovery “in those situations in which the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential memorandum or a credit report.” Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 242 (Ariz. Ct. App. 1983).

By statute, the single publication rule applies in Arizona. See A.R.S. § 12-651. The statute provides, in pertinent part:

1. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
2. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

The CMLP is not aware of any cases in Arizona that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Arizona cases that acknowledge the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to California. For general information concerning defamation, see the Defamation Law section of this guide.

California Elements of Defamation

Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.

The elements of a defamation claim are:

1. publication of a statement of fact
2. that is false,*
3. unprivileged,
4. has a natural tendency to injure or which causes "special damage," and
5. the defendant's fault in publishing the statement amounted to at least negligence.

Publication, which may be written or oral, means communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the “public” at large; communication to a single individual other than the plaintiff is sufficient. Republishing a defamatory statement made by another is generally not protected.

*As a matter of law, in cases involving public figures or matters of public concern, the burden is on the plaintiff to prove falsity in a defamation action.  Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996). In cases involving matters of purely private concern, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646 & n.5 (Cal. Ct. App. 1999).  A reader further points out that, even when the burden is technically on the plaintiff to prove falsity, the plaintiff can easily shift the burden to the defendant simply by testifying that the statements at issue are false.

Defamation Per Se

A plaintiff need not show special damages (e.g., damages to the plaintiff's property, business, trade, profession or occupation, including expenditures that resulted from the defamation) if the statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature.  See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008). 

For example, an allegation that the plaintiff is guilty of a crime is defamatory on its face pursuant to Cal. Civil Code § 45a. In one case, a non-profit organization (NPO) that advocates for the rights of low-income migrant workers posted flyers claiming a national retailer of women's clothing engaged in illegal business practices by contracting with manufacturers that did not pay minimum wage or overtime. The retailer brought a defamation suit against the NPO. Although the statements would have qualified as defamation per se, the court concluded the retailer failed to establish the statements in the flyers were false, and therefore the statements could not be considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).

Public Officials

In California, public officials are those who have, or appear to the to have, substantial responsibility for or control over the conduct of government affairs. For example, the following persons have been considered public officials in California:

• A police officer, an assistant public defender, an assistant district attorney, and a government employed social worker.

Public Figures

In California, to classify a person as a public figure, the person must have achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Someone who voluntarily seeks to influence resolution of public issues may also be considered a public figure in California. For example, the following persons have been considered public figures in California:

• A former City Attorney who also represented the city's redevelopment agency;


• A licensed clinical psychologist whose so-called “Nude Marathon” in group therapy is a means of helping people to shed their psychological inhibitions by the removal of their clothes;


• An author and television personality;


• The founder of a Church that has a program for the rehabilitation of drug addicts;


• An associate of Howard Hughes, a famous aviator, movie producer, and billionaire, from approximately 1956 to 1970 who functioned as an "alter ego" and "personal representative" of Mr. Hughes;


• A real-estate developer who was interested in building a housing development near a toxic chemical plant; and


• A "prominent and outspoken feminist author" and anti-pornography advocate.

Limited-Purpose Public Figures

A limited-purpose public figure is a person who voluntarily injects herself or is drawn into a particular public controversy. It is not necessary to show that she actually achieves prominence in public debate; her attempts to thrust herself in front of the public is sufficient. Copp v. Paxton, 52 Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996). As with all limited-purpose public figures, the alleged defamation must be relevant to the plaintiff's voluntary participation in the public controversy (if the issue requires expertise or specialized knowledge, the plaintiff's credentials as an expert would be relevant).

In California, the following persons have been considered limited-purpose public figures:

• The president of two corporations located in a California village that opposed the rezoning of property adjacent to his property. Kaufman v. Fidelity Fed. Sav. & Loan Ass'n, 189 Cal.Rptr. 818 (Cal. Ct. App. 1983);

• An individual who publicly claimed to be an expert in earthquake safety and a veteran in earthquake rescue operations. Copp v. Paxton, 52 Cal.Rptr.2d 831 (Cal. Ct. App. 1996).

Actual Malice and Negligence

In California, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

California courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, and substantial truth.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

California courts have codified the fair report privilege in Cal. Civil Code §47(d) and (e). The privilege generally applies to publicly available government records, official government reports, and statements made by government officials.

Neutral Reportage Privilege

The California Supreme Court has not formally recognized the neutral reportage privilege. Nevertheless, several federal courts have applied the neutral report privilege in cases involved California law and there are relatively strong indications that state courts in California would apply the privilege if faced with the proper fact pattern.

The California Supreme Court indicated a possible willingness to consider the neutral report privilege in the context of public figure defamation. In that case, which involved an allegation that the plaintiff, a private citizen, participated in the Robert Kennedy assassination when he was 21 years old, the California Supreme Court held that the neutral report privilege did not apply to cases where the plaintiff was a private figure. Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998). The court left open the question, however, whether the neutral report privilege would apply if the defamatory statement involved a public figure.

In addition, several lower California courts have expressed support for the privilege without directly ruling that the privilege applies. See Weingarten v. Block, 102 Cal. App. 3d 129, 148 (1980); Grillo v. Smith, 144 Cal. App. 3d 868, 872 (1983); Stockton Newspapers, Inc. v. Superior Court, 206 Cal. App. 3d 966, 981 (1988); Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 732-33 n.18 (Cal. Ct. App. 1989).

Although their application of the privilege is not binding on California state courts, two federal courts in the state have applied the neutral reportage privilege in situations involving the following:

• A college basketball player (ruled a public figure) who accused his coach (also deemed a public figure) of participating in payments made to the player by team boosters. Barry v. Time, Inc., 584 F. Supp. 1110, 1112 (D. Cal. 1984). The court held that there was no requirement that the person making the accusation have a reputation for "trustworthiness" for the neutral report privilege to apply.
• The details published by a tabloid, News of the World, about the private life of a well known actor. Ward v. News Group Int'l, 733 F. Supp. 83 (D. Cal. 1990). The court emphasized that the republication occurred in a fair and accurate manner and that the tabloid published the actor's denial along with the accusation.

Wire Service Defense

The wire service defense generally is not recognized in California. However, one trial court in California did recognize the wire service defense in an unpublished decision. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121 at *6 (Cal. Super. Ct. 2003). Since the decision was at the trial court level and unpublished, other California courts are free to disregard the court's decision to apply the wire service defense.

Statute of Limitations for Defamation

California's statute of limitations for defamation is one (1) year. See California Code of Civil Procedure 340(c).

California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5. A California Court of Appeals recognized the single publication rule in the context of publications on the Internet. Traditional Cat Ass'n, Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004).  For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

Note: This page covers information specific to the District of Columbia. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

According to District of Columbia law, defamation claims have four elements:

1. the defendant made a false and defamatory statement concerning the plaintiff;
2. the defendant published the statement without privilege to a third party;
3. the defendant's fault in publishing the statement amounted to at least negligence; and
4. either the statement was actionable as a matter of law irrespective of special harm or its publication caused the plaintiff special harm.

See Jankovic v. International Crisis Group, 429 F.Supp.2d 165, 173-4 (D.D.C. 2006). The elements of a defamation claim in the District of Columbia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

In the District of Columbia, any written or printed statement that falsely accuses someone of committing a crime constitutes defamation per se. See Raboya v. Shrybman & Associates, 777 F.Supp. 58 (D.D.C. 1991). If a statement is defamation per se, the court will assume harm to the plaintiff's reputation, without further need to prove that harm.

The District no longer allows presumed damages for defamation per se directed at public figures, following the U.S. Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007) (affirming unpublished lower court decision implying that presumed damages are no longer available for public figures). The court in El-Hadad noted that D.C. law provides for presumed damages for defamation per se directed at private figures.

Public Figures

Federal courts in D.C., applying D.C. law, have ruled that corporate plaintiffs are considered public figures as a matter of law in lawsuits against mass media defendants that involve "matters of legitimate public interest." See Oao Alfa Bank v. Center for Public Integrity, 387 F.Supp.2d 20, 48 (D.D.C. 2005) (citing other cases). The opinions of federal district courts are not definitive on the meaning of D.C. law, but other cases might choose to follow this rule. Should they decide to do so, then any corporation -- no matter how large -- would have to prove actual malice in order to prevail in such cases. There is no reason to believe this rule would not apply to lawsuits involving citizen media defendants because the underlying rationale focuses on the characteristics of corporations, not those of the defendant in the lawsuit. 

Actual Malice and Negligence

In the District, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

District of Columbia courts recognize a number of privileges and defenses in the context of defamation actions, including the wire service defense, the fair report privilege, the opinion and fair comment privileges, and substantial truth.

It is not clear whether the D.C. courts recognize the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

D.C. courts recognize the the fair report privilege.  The privilege is applied broadly to statements made during proceedings before any court, agency, executive body, legislative body, and to reports of any official proceeding or action taken by a government officer or agency.

Wire Service Defense

D.C. recognizes the wire service defense, which precludes defamation liability for speakers who republish content from wire services. D.C. also recognizes the reverse of the standard wire service defense: wire services may rely on content from reputable newspapers without being held negligent. See Winn v. UPI, 938 F.Supp. 39 (D.D.C. 1996).

Neutral Reportage Privilege

District of Columbia courts have not ruled definitively on the availability of the neutral reportage privilege.

In White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990), the U.S. Court of Appeals for the D.C. Circuit noted that it had not yet recognized the neutral reportage privilege, although the court seemed to express a favorable view of it. At least one lower D.C. court has applied the privilege. See In re United Press Intern, 106 B.R. 323 (D.D.C. 1989) (news reports were immune from defamation liability under neutral reportage). In an earlier case, a federal district court held that the neutral report privilege would not apply to a case involving statements about a private figure. See Dressbach v. Doubleday & Co., 8 Media L. Rep. 1793 (D.D.C. 1982).

Statute of Limitations for Defamation

The District's statute of limitations for defamation is one (1) year. See D.C. Code Sec 12-301(4).

The District has adopted the single publication rule. See Jin v. Ministry of State Secretary, 254 F.Supp. 2d 61, 68 (D.D.C. 2003). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

In Jankovic v. International Crisis Group, 494 F.3d 1080 (D.C. Cir. 2007), the D.C. Circuit held that the single publication rule applies to statements posted on the Internet, and that the statute of limitations runs from the date of first publication absent "republication" of the allegedly defamatory statement by updating it or taking steps to expand the audience for it. While the Court of Appeals of the District of Columbia has not ruled on the issue as a matter of state law, it is likely that other D.C. courts would apply this holding. Therefore, the statute of limitations in Internet cases should run from the date of first posting, absent some modification that triggers "republication."

Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Florida law, the elements of a defamation claim are:

1. the defendant published a false statement;
2. about the plaintiff;
3. to a third party; and
4. the falsity of the statement caused injury to the plaintiff.

Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence.  The elements of a defamation claim in Florida are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

In Mid-Florida Television Co. v. Boyles, 467 So.2d 282 (Fla. 1985), the Florida Supreme Court ruled that the state no longer recognizes presumed damages for defamation per se in lawsuits against media defendants. (Defamation "per se" refers to a legal doctrine which holds that some statements of fact are so egregious that a court will presume that they harmed the plaintiff's reputation.) The CMLP is not aware of any Florida cases deciding whether a blogger or non-traditional journalist is a "media defendant" for purposes of applying this rule. In cases involving matters of purely private concern, a Florida court could still presume damages based on defamation per se. In Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.

Public and Private Figures

Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim. The Florida Supreme Court found a police officer to be a public official where he was a "highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power." Smith v. Russell, 456 So.2d 462 (Fla. 1984). Florida courts have found that a corrections officer, an administrator of large public hospital, and even a harbormaster were public officials.

Criminal Libel

Unlike most states, Florida still recognizes criminal libel. Chapter 836 of the Florida Statutes does not define the elements of criminal libel, but it does specifically prohibit false statements that harm a bank or other financial institution's reputation or accuse a female of being unchaste. To the extent that the statute remains valid, criminal libel is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11 -- which deals with anonymous defamation of individuals or religious groups -- to be unconstitutional. State v. Shank, 795 So.2d 1067 (Fla.Ct.App., 4th Dist. 2001).

Actual Malice and Negligence

In Florida, a private figure plaintiff bringing a defamation lawsuit generally must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Florida courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the fair report privilege, and the wire service defense. The Florida Supreme Court has not explicitly recognized the neutral reportage privilege, but lower court cases have recognized it.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Neutral Reportage Privilege

The Florida Supreme Court has not formally recognized the neutral reportage privilege, but there are indications that Florida would recognize it. Two lower court cases have endorsed the privilege. See Smith v. Taylor County Pub. Co., 443 So. 2d 1042, 1044 (Fla. 1st DCA 1983); Huszar v. Gross, 468 So. 2d 512, 515 (Fla. 1st DCA 1985). Both cases recognized the privilege even in instances where the plaintiff is a private figure. The Court of Appeals for Florida's Third District spoke favorably of these cases. See Brake & Alignment Supply Corp. v. Post-Newsweek Stations of Florida, Inc, 472 So. 2d 517, 518 (Fla. 3rd DCA 1985).

Statute of Limitations for Defamation

Florida's statute of limitations for defamation is two (2) years. See Fla. Stat. § 95.11(4)(g).

Florida applies the single publication rule. See Fla. Stat. § 770.07. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

To our knowledge, Florida appellate courts have considered the application of the single publication rule to the Internet on only one occasion, in Rudloe v. Karl, No. 1D03-4651 (Fla. Dist. Ct. App. Nov. 5, 2004). In that opinion, the District Court of Appeal for the First District wrote that the single publication rule applies to Internet content, and that the statute of limitations does not reset every time that a new user accesses allegedly defamatory material. However, after a rehearing, this opinion was withdrawn by the court and superseded by an opinion that did not address statute of limitations issues. Accordingly, while the original opinion might suggest the manner in which Florida courts would apply the single publication rule to online speech, the opinion itself has no precedential value and should not be cited in court.  If you are aware of any additional Florida cases that address the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to Georgia. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Georgia, the elements of a defamation claim are:

1. a false statement about the plaintiff;
2. communication of the statement to a third party in the absence of a special privilege to do so;
3. fault of the defendant amounting at least to negligence; and
4. harm to the plaintiff, unless the statement amounts to per se defamation. See Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008).

These elements of a defamation claim in Georgia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Georgia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. Under Georgia statutes, a statement is defamatory per se if it:

• charges another person with a crime punishable by law;
• charges another person “with having some contagious disorder or with being guilty of some debasing act which may exclude him from society;” or
• refers to the trade, office, or profession of another person, and is calculated to injure him.

See Ga. Code Ann. §51-5-4.

Georgia courts have interpreted defamation per se to include statements “that one is guilty of a crime, dishonesty or immorality,” Eidson v. Berry, 415 S.E.2d 16, 17 (Ga. Ct. App. 1992), or that accuse one “of having sexual relations with any person other than his wife,” Baskin v. Rogers, 493 S.E.2d 728, 730 (Ga. Ct. App. 1997). The courts have narrowed the criteria for defamation of a business person by adopting the “single instance test.” A plaintiff has no grounds for a complaint if the alleged defamatory statement refers to only a single instance of mistake or ignorance on the part of a business or professional person. See Crown Andersen, Inc. v. Georgia Gulf Corp., 554 S.E.2d 518, 521 (Ga. Ct. App. 2001).

Who Can Sue For Defamation

Georgia recognizes no “right of action for defamation of a deceased person.” Saari v. Gillett Communications of Atlanta, Inc., 393 S.E.2d 736, 736 (Ga. Ct. App. 1990). However, if a defamation plaintiff dies after suit is filed, the representative of the deceased plaintiff's estate may continue the lawsuit. Johnson v. Bradstreet Co., 13 S.E. 250, 252 (Ga. 1891).

Limited-Purpose Public Figures

Georgia follows Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), in defining public figures. The Georgia Court of Appeals refined its test for limited-purpose public figures in the well-known case of Richard Jewell, the security guard during the 1996 Olympics in Atlanta who was first hailed as a hero for discovering a knapsack bomb in Centennial Olympic Park, but later was investigated by the FBI as a possible suspect in placing the bomb. In the court's view, by granting a series of media interviews in which he attempted to influence public perception of security at the park, Jewell became a voluntary limited-purpose public figure for purposes of his libel suit against an Atlanta newspaper. See Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175, 185 (Ga. Ct. App. 2001).

The Georgia Court of Appeals adopted a three-part test for determining who is a limited-purpose public figure: “the court must [1] isolate the public controversy, [2] examine the plaintiff's involvement in the controversy, and [3] determine whether the alleged defamation was germane to the plaintiff's participation in the controversy.” Atlanta Journal-Constitution v. Jewell, 555 S.E.2d at 183.

Actual Malice and Negligence

In Georgia,  a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards. 

Privileges and Defenses

Georgia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges. The CMLP has not identified any cases in Georgia concerning the wire service defense. It is unclear whether Georgia courts recognize the neutral reportage privilege.

Most of the privileges and defenses to defamation in Georgia can be defeated if the plaintiff proves that the defendant acted with actual malice.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

Fair and accurate reports of legislative and court proceedings are among the privileged communications protected by statute in Georgia. See Ga. Code Ann. §51-5-7(5), (6). This privilege also extends to fair, accurate, and impartial reports about administrative agency proceedings. Morton v. Stewart, 266 S.E.2d 230, 233 (Ga. Ct. App. 1980). Georgia courts have generally, but not universally, held that the fair report privilege is qualified and can be defeated by proof of actual malice. Ga. Code Ann. §51-5-7(8) also provides a qualified privilege for truthful reports of information received from arresting officers or police authorities.

Neutral Reportage Privilege

Georgia courts have mentioned the "neutral reportage privilege" a handful of times, but they sometimes appear to confuse it with the fair report privilege and the statutory privilege for reporting information received from arresting officers or police authorities. At other times, Georgia courts use the term "neutral reportage" to describe whether a report is "fair and honest" for purposes of the fair report privilege. Because of this confusion, it is difficult to say whether Georgia recognizes the privilege as it is usually understood.

Wire Service Defense

The CMLP has not identified any cases in Georgia concerning the wire service defense. If you are aware of any Georgia cases, please notify us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. Ga. Code Ann. § 9-3-33.

Georgia has adopted the single publication rule. See Carroll City/County Hosp. Auth. v. Cox Enters., 256 S.E.2d 443, 444 (Ga. 1979). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

In McCandliss v. Cox Enterprises, 595 S.E.2d 856 (Ga. Ct. App. 2004), a Georgia appeals court held that the single publication rule applied to the posting of news articles on a newspaper's website. If other Georgia courts follow the McCandliss decision, the statute of limitations in Internet cases would begin to run from the date of first posting, absent a modification that triggers "republication."

Note: This page covers information specific to Illinois. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Illinois law, the elements of a defamation claim are:

1. the defendant made a false statement about the plaintiff;
2. there was an unprivileged publication to a third party;
3. fault by the defendant amounting to at least negligence; and
4. the publication damaged the plaintiff.

The elements of a defamation claim in Illinois are for the most part similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Illinois recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Illinois, a statement that does any of the following things amounts to defamation per se:

• accuses the plaintiff of committing a crime;
• indicates that the plaintiff is infected with a loathsome communicable disease;
• indicates that the plaintiff is unable to perform or lacks integrity in performing his or her employment duties;
• attributes to the plaintiff a lack of ability or otherwise harms the plaintiff in his or her profession; or
• accuses the plaintiff of engaging in adultery or fornication.

Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825, 839 (Ill. 2006).

Actual Malice and Negligence

Illinois courts apply a unique "reasonable grounds" standard of negligence in defamation cases brought by  private figures. This standard requires that the defendant either knew the publication was false or believed the publication was true but "lacked reasonable grounds for that belief." Troman v. Wood, 62 Ill.2d 1984, 299 (Ill. 1975). Thus, the Illinois negligence test resembles a slightly more lenient "actual malice" test. See the general page on actual malice and negligence for details on the terminology and standards referenced here.

Privileges and Defenses

Illinois courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, substantial truth, and the opinion and fair comment privileges. Illinois has neither recognized nor rejected the wire service defense and the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. See Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825 (Ill. 2006).

Fair Report Privilege

In Illinois, the fair report privilege covers reports of official government proceedings and information contained in public records. This includes court proceedings and matters contained in court documents, as well as police reports, verbal statements by governmental officials in their official capacities, and things like marriage and divorce records, birth and death records, and property records. The privilege protects you if your report fairly and accurately reflects the official information. As noted, the privilege is absolute, and cannot be defeated by a finding of malice or actual malice.

Neutral Reportage Privilege

The Supreme Court of Illinois has not recognized or rejected the neutral reportage privilege. Lower courts in Illinois do not agree on whether Illinois law recognizes the privilege. Therefore, its status remains uncertain.

Wire Service Defense

Illinois has only addressed the wire service defense in one case, Kapetanovic v. Stephen J. Productions, Inc., 30 Media L. Rep. 1786 (N.D.Ill. 2002), but that case is not binding legal authority because it involved a federal court. It is worth noting, however, that the Illinois federal court recognized and applied the defense in that case and Illinois state courts may decide to follow suit.

Statute of Limitations for Defamation

The statute of limitations for defamation in Illinois is one (1) year. See 735 ILCS 5/13-201

Illinois has adopted the single publication rule by statute. See 740 ILCS 165/1. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Illinois that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Illinois cases that acknowledge the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to Indiana. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

Under Indiana law, the elements of defamation claim are:

1. a communication with defamatory imputation;
2. malice;
3. publication; and
4. damages.

Bochenek v. Walgreen Co., 18 F.Supp.2d 965 (N.D.Ind. 1998).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These elements of a defamation claim in Indiana are for the most part similar to the elements listed in the general Defamation section, with the following exceptions.

Defamation Per Se

In Indiana, a communication constitutes defamation per se if it imputes:

• criminal conduct;
• a loathsome disease;
• misconduct in a person's profession or occupation; or
• sexual misconduct.

Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App.2001). In an Indiana claim involving defamation per se, the plaintiff does not need to prove actual damages.

Private Figures

Indiana applies the "actual malice" standard of fault in defamation claims involving private figures if the disputed statements are newsworthy or involve matters of public concern. Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 130 (Ind. 2006). Most states apply a negligence standard in defamation claims involving public figures. See the general page on actual malice and negligence for details on this standard.

Privileges and Defenses

Indiana courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Indiana has not recognized or rejected the neutral reportage privilege and has not yet considered the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Neutral Reportage Privilege

Indiana has not explicitly recognized or rejected the neutral reportage privilege. The sole case law on the issue is a 7th Circuit decision that upheld an unpublished Indiana federal court judgment but declined to address the issue of neutral reportage. Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir. 1986). The federal trial court had recognized and applied the privilege, but the 7th Circuit affirmed on other grounds.

Wire Service Defense

It appears that no Indiana case has considered the wire service defense. If you are aware of any Indiana cases, please notify us.

Statute of Limitations for Defamation

The statute of limitations for defamation in Indiana is two (2) years. See Indiana Code sec. 34-11-2-4.

Indiana is unusual in that its courts have held that the statute of limitations begins when the "damage" of the statement is "susceptible of ascertainment," rather than when the statement was published. Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling court determined that this means the statute of limitations begins when the plaintiff knew about the harm caused by the disputed statements or would have known about the harm if she had exercised due diligence.

Indiana has no case law on whether or not the single publication rule applies. If you are aware of any Indiana cases that acknowledge the single publication rule in the Internet context, please notify us.  For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

In Massachusetts, the elements of a defamation claim are:

1. a false and defamatory communication
2. of and concerning the plaintiff which is
3. published or shown to a third party.

Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence.   These elements of a defamation claim in Massachusetts are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Massachusetts has abolished the separate category of defamation per se at least in part. Under state common law, any libel is actionable per se. Sharratt v. Housing Innovations, Inc., 365 Mass. 141 (Mass. 1974). This means that plaintiffs do not need to plead or prove economic losses in order to prevail on libel claims.

However, Massachusetts courts have continued to discuss defamation per se. It appears the state might still recognize libel per se when determining whether a statement "could damage the plaintiff's reputation in the community" -- which is part of the consideration of whether the statement is defamatory. Albright v. Morton, 321 F. Supp. 2d 130 (D.Mass. 2004); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (Mass. 1975). Libel per se in this context seems to encompass statements that charge the plaintiff with a crime, that allege the plaintiff has certain diseases, or that may prejudice the plaintiff's profession or business. Morton, 321 F. Supp. at note 3.

It also appears that Massachusetts still recognizes defamation per se in cases involving slander rather than libel. Ravnikar v. Bogojavlensky, 438 Mass. 627 (Mass. 2003). However, this is unlikely to arise in an Internet-based defamation action because online defamation almost always involves libel law.

Public Officials

In Massachusetts, any elected official holding public office is considered a public official for the purposes of defamation. Lane v. MPG Newspapers, 438 Mass. 476, 482-484 (Mass. 2003. This means that any elected official in public office -- no matter how small the scope of her duties -- must prove that the defendant acted with actual malice in order to prevail on a defamation claim. The Lane court found that an elected town representative was a public official though the representative's duties were limited to meeting with the rest of a 104-member committee once a year to vote on various town issues.

Criminal Libel

Massachusetts recognizes criminal libel as a common law offense, though it does not have a criminal libel statute. Commonwealth v. Clapp, 4 Mass. 163 (Mass. 1808). However, there does not appear to be any Massachusetts criminal libel case law since the Supreme Court's 1966 decision in Ashton v. Kentucky, which invalidated the Kentucky common law crime of criminal libel as unconstitutionally vague and overbroad. Ashton v. Kentucky, 384 U.S. 195 (1966). Following the Court's decision in Ashton, many states have repealed their criminal libel statutes or ceased to recognize the common law crime.

Privileges and Defenses

Massachusetts courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the wire service defense, and the fair report privilege. Massachusetts has neither recognized nor rejected the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Substantial Truth

As a general matter, if a statement is substantially true, it cannot be actionable as defamation. See Milgroom v. News Group Boston, 412 Mass. 9, 12-13 (1992). Under Massachusetts statutory law, however, "truth shall be a justification unless actual malice is proved." M.G.L. c. 231 Section 92. This potential limitation on the truth defense is unlikely to be constitutional and, indeed, Massachusetts courts have held that it does not apply to cases involving public-figure or public-official plaintiffs or cases brought against media defendants that deal with matters of public concern. Materia v. Huff, 394 Mass. 328, 333 n.6 (1985); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134 (1998). No court has applied the statute in a case brought by a private plaintiff that involves issues not of public concern.

Neutral Reportage Privilege

Massachusetts has not recognized or rejected the neutral reportage privilege. Reilly v. Associated Press, 797 N.E.2d 1204 (Mass. App. Ct. 2003).

Statute of Limitations for Defamation

The statute of limitations for defamation in Massachusetts is three (3) years. See M.G.L. c. 260 sec 4.

Massachusetts has adopted the single publication rule, defining publication as the time when a work is "first made widely available to the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288 (Mass. Super. Ct. 2004). The Abate court also explicitly extended the single publication rule to statements published on the Internet. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Note: This page covers information specific to Michigan. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Michigan, the elements of a defamation claim are:

1. a false and defamatory statement concerning the plaintiff;
2. an unprivileged publication to a third party;
3. fault amounting at least to negligence on the part of the publisher; and
4. either actionability of the statement irrespective of special harm (defamation per se) or the existence of actual harm caused by the publication.

These elements of a defamation claim in Michigan are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Defamation per se exists if the communication is false and imputes a criminal offense or lack of chastity. Unlike in many other states, defamation regarding one's business or profession is not defamation per se in Michigan. See George v. Senate Democratic Fund, 2005 WL 102717 (Mich. Ct. App. 2005); Pierson v. Ahern, 2005 WL 1685103 (Mich. Ct. App. 2005).

Public Figures and Officials

Under Michigan law, a public official is a person whose position is of such apparent importance that the public has an independent interest in his qualifications or performance "beyond the general public interest in the qualification and performance of government employees." Peterfish v. Frantz, 168 Mich. App. 43, 52 (1988). A plaintiff must prove actual malice to recover for any subject matter that touches upon the official's fitness for office. A public figure is "a person who by his accomplishments, fame or mode of living, or by adopting a calling which gives the public a legitimate interest in his activities, affairs, and character, has become a public personage." Arber v. Sahlin, 382 Mich. 300, 305 n.4 (1969).

In Michigan, the following persons have been considered public officials or figures:

• Law enforcement officials including a sheriff, a deputy sheriff, a university police officer, a bailiff, chief probation officer, the chief of the criminal section of the city law department;


• Municipal figures including a county treasurer, a county engineer, a municipal law director, a city council member, members of the Board of Education; and


• Owners and executives of prominent businesses.

Limited-Purpose Public Figure

A limited-purpose public figure is a person who voluntarily injects himself or is drawn into a particular public controversy. However, a private person is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. A court will look to the nature and extent of the individual's participation in the controversy. New Franklin Enterprises v. Sabo, 480 N.W.2d 326, 328 (Mich. App. 1991).

In Michigan, the following persons have been considered limited-purpose public figures:

• The owner of a private art school was a public figure for the limited range of issues relating to the art school, its administration, and its problems;


• A wife of a public official who injected herself into a public controversy made her a public figure for purpose of the controversy bolstered by the fact she was married to a public figure.


• A retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at School Board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the Board.

See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Michigan courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, opinion and fair comment privileges, wire service defense and the fair report privilege. Michigan has declined to adopt the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

In Michigan, the fair report privilege has been codified in Mich. Comp. Law § 600.2911(3) (1961), which provides an absolute privilege against liability for fair and true reports of public and official proceedings. A report is fair and true if the "gist" is substantially true.

Neutral Reportage Privilege

The neutral reportage privilege is not recognized in Michigan. The Michigan Court of Appeals declined to adopt the privilege stating "the press is adequately protected by the burden of proof" that the publication of a statement was made with actual malice, that is, knowing that it is false or acting with a reckless disregard for the statement's truth or falsity. Postill v. Booth Newspapers, Inc., 325 N.W.2d 511, 518 (Mich. Ct. App. 1982). Michigan's Supreme Court has made only passing reference to neutral reportage, referring to the doctrine as "undefined." Rouch v. Enquirer & News, 487 N.W.2d 205, 208 n.3 (Mich. 1992).

Wire Service Defense

Michigan recognizes the wire service defense. See Howe v. Detroit Free Press, Inc., 555 N.W.2d 738 (Mich. App. Ct. 1996). The court in Howe offers a nice definition of the wire service defense in Michigan: "when a local media organization receives a wire service release, it has a duty to read the release to ensure that the face of the story itself does not contain any inconsistencies. The local media organization also has a duty to refrain from publishing the news story if the news organization knows the story is false or if the release itself contains unexplained inconsistencies. The local media organization does not have a duty, however, to independently verify the accuracy of the wire service release." Howe, 555 N.W.2d at 740-41.

Statute of Limitations for Defamation

The statute of limitations for defamation in Michigan is one (1) year. Mich. Comp. Law § 600.5805(7) (1961).

Each publication typically amounts to a separate cause of action in Michigan. See Grist v. Upjohn, 2 Mich. App. 72 (1965); Celley v. Stevens, 2004 WL 134000 (Mich. Ct. App. 2004). Michigan courts have not decided whether the single publication rule applies in Michigan. For a definition of the "single publication rule," see the Statute of Limitations for Defamation page.

Note: This page covers information specific to Missouri. For general information concerning defamation, see the Defamation section of this guide. 

Elements of Defamation

The elements of defamation in Missouri are:

1. publication
2. of a defamatory statement
3. that identifies the plaintiff
4. that is false
5. that is published with the requisite degree of fault, and
6. damages the plaintiff's reputation

Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc). 

The publication requirement is simply the communication of defamatory matter to a third person. An exception to the publication requirement exists for slander actions in Missouri where a person who utters defamatory matters intends, or has reason to suppose, that in the ordinary course of events the matter will come to knowledge of some third person. Mauzy v. Mex. Sch. Dist., 878 F. Supp. 153, 157 (E.D. Mo. 1995), citing Neighbors v. Kirksville College, 694 S.W.2d 822, 824 (Mo. Ct. App. 1985). One who republishes defamatory facts is liable for that publication. Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953). There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party - not you or your employee or someone acting under your direction - posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

These elements of a defamation claim in Missouri are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se/Per Quod

The Missouri Supreme Court case of Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (en banc) eliminates the defamation per se/per quod distinction. In that case, the court abandoned the classifications of defamation per se and per quod, holding that "plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases." Id. at 313. 

Defamatory Meaning 

By statute, it is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery. Mo. Rev. Stat. § 537.110 (2011).

In 1993, a false allegation of homosexuality was held to be defamatory. Nazeri at 312. It is not clear whether this would still be actionable now.

In order to find that a publication is defamatory, it must "be unequivocally so" and the words "should be construed in their most innocent sense." Walker v. Kan. City Star Co., 406 S.W. 44, 51 (Mo. 1966). In Ampleman v. Schweppe, 972 S.W.2d 329 (Mo. Ct. App. 1998), the court stated that "if a statement is capable of two meanings (one defamatory and one nondefamatory), and can reasonably be construed in an innocent sense, the court must hold the statement nonactionable as a matter of law." Id. at 333.

Of and Concerning the Plaintiff

Even if the plaintiff is readily identifiable in a particular publication, the plaintiff cannot sue for defamation unless the libelous portion of the publication is directed at him. May v. Greater Kansas City Dental, 863 S.W.2d 941, 945 (Mo. Ct. App. 1993).  

Actual Malice

In order to recover for defamation, a public official/figure is required to show that the defendant acted with actual malice. Actual malice requires a showing that the libelous statements were published with actual knowledge of falsity or in reckless disregard as to whether the statement as true or not. The Missouri Supreme Court has equated recklessness with disregard of the truth with subjective awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Glover v. Herald Co. 549 S.W.2d 858, 862 (Mo. 1977) (en banc).

Application of the actual malice standard in defamation cases in Missouri is not limited to statements regarding public officials' performance of official acts. A public figure's private conduct is, in some cases, a matter of public concern. Westhouse v. Biondo, 990 S.W.2d 68 (Mo. Ct. App. 1999).

Missouri cases have applied constitutional fault principles to statements made by non-media defendants, as well as those made by media defendants. Ramacciotti v. Zinn, 550 S.W.2d 217, 224 (Mo. Ct. App. 1987); McQuoid v. Springfield Newspapers, Inc., 502 F. Supp 1050, 1054 n.3 (W.D. Mo. 1980). 

See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Private Figure Standard

In Missouri, a private figure must show libelous statements were published by a defendant "at fault." The Missouri Supreme Court has interpreted the U.S. Supreme Court's ruling in Gertz v. Robert Welch, Inc., as stating that the requisite degree of fault in a private figure defamation case is negligence. Overcast v. Billings Mut. Ins. Co., 11 S.W. 3d 62, 70 (Mo. 2000) (en banc). 

Damages 

In a ruling rejecting the distinction between defamation per se and per quod (see above), the Missouri Supreme Court seems to have abandoned the doctrine of presumed damages. Nazeri v. Misssouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc). "By allowing presumed damages for certain words but precluding actual damages for other words without the additional proof of special damages, we believe this rule of the past creates unjustifiable inequities for plaintiffs and defendants alike. We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI [i.e., the "Missouri Approved Instructions," the standard jury instructions used in Missouri courts] 23.01(1) and 23.01(2)." Nazeri at 313. See also Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003); Bauer v. Ribaudo, 975 S.W.2d 180, 182-83 (Mo. Ct. App. 1997).  

Recent Missouri legislation says that punitive damages in any tort case may not exceed $500,000 or five times the net amount of any judgement awarded to the plaintiff against the defendant, whichever is greater. Mo. Rev. Stat. § 510.265 (2011). 

The Missouri Supreme Court has held that a defamation plaintiff must prove impairment to reputation in order to recover any damages for defamation and that emotional distress alone will not suffice. Kenney v. Walmart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003). 

Other Issues

Missouri has no criminal libel statute. 

Privileges and Defenses

Missouri courts recognize a number of privileges and defenses in the context of defamation cases, including substantial truth, the wire service defense, the fair reportage privilege, and opinion and fair comment privileges.

Missouri has not adopted the neutral reportage doctrine officially, although some cases show some recognition of a more limited privilege. Englezos v. Newspress & Gazette Co. 981 S.W.2d 25, 32 (Mo. Ct. App. 1998). The Eighth Circuit has suggested adherence to the neutral reportage doctrine. Price v. Viking Penguin Inc., 881 F.2d 1426, 1434, 1444 (8th Cir. 1989).

Substantial Truth

At common law, truth was considered a complete defense to libel (i.e., the defendant would have the burden to prove truth). Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953); Bartulica v. Pasculdo, 411 F. Supp 392, 397 (W.D. Mo. 1976).

Now falsity must be proven by the plaintiff, at least in cases where the defendant is a member of the media. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). "Under the controlling constiutional standards, public officials, public figures and private persons using media defendants [for libel] must establish that the defendant published a false statement of fact." Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo. Ct. App. 1980). 

Slight inaccuracies of expression are immaterial if the defamatory charge is true in substance. Brown v. Biggs, 569 S.W.2d 760, 762 (Mo. Ct. App. 1978).

Wire Service Defense

Missouri recognizes that a newspaper has the right to reply upon and to republish information obtained from "reputable and properly-regarded-as reliable news services" where (1) the matters republished are of public significance and occur many miles away and (2) the reporter did not act with actual malice. Walker v. Pulitzer Publ'g Co., 271 F.Supp. 364 (E.D. Mo. 1967), aff'd, 394 F.2d 800 (8th Cir. 1968). 

Fair Reportage Privilege

Missouri has adopted this privilege in the exact language provided in the Restatement of Torts (Second) § 611:

The publication of defamatory matter concerning another in a report or an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

"Actual malice" is irrelevant under the Section 611 privilege. The privilege fails only when the report is not a fair and accurate account of the proceedings. Williams v. Pulitzer Broad. Co., 706 S.W.2d 508, 511 (Mo. Ct. App. 1986).

Opinion

The Missouri Supreme Court, considering the U.S. Supreme Court's holding in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990),rejected a blanket defense for protected opinion and established instead the following test: 

"The test to be applied to ostensible 'opinion' is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. ...The issue of falsity relates to the defamatory facts implied by a statement -- in other words, whether the underlying statement about the plaintiff is demonstrably false... But neither 'imaginative expression' nor 'rhetorical hyperbole' is actionable as defamation."

Nazeri at 314 (citations omitted). Nevertheless, a Missouri appellate court has since held that generally any statement preceded by a phrase such as "it is my position" or "it is my belief" or other cautionary phrases are, as a matter of law, opinion. Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996). "Put plainly, it is impossible to interpret statements preceded by such cautionary lanugage as positing a verifiable proposition, and verifiability is the crux of the fact/opinion distinction in defamation law."  Pape at 380-81. The Pape court also held that "[a] statement must be verifiable at the time it is issued in order to be one of fact." Id. at 381.

In State ex. rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo. Ct. App. 2005), the Missouri Court of Appeals, while recognizing that the U.S. Supreme Court "has rejected the notion that there is a wholesale defamation exception for anything that might be labeled opinion" as a matter of federal constitutional law, held that "a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff's conduct and used pejorative statements or vituperative language to express this disapproval. ... 'Courts should also examine the statements themselves to determine whether they are too imprecise.'" Id. at 155, quoting Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. 1985) (en banc).

See the general page on fair comment and opinion for details on the standards and terminology mentioned in this subsection.

Other Privileges

Missouri follows the "witness immunity" rule that witness statements made in litigation are absolutely privileged from defamation actions. Mershon v. Beasley, 994 F.2d 449, 454 (8th Cir. 1993).

There is also an "intra-corporate immunity" rule in Missouri where "communications between officers or employees of a corporation in the regular course of business, or between different offices of the same corporation" are not publications for defamation purposes. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 344 (Mo. 1963); see also Perez v. Boatmen's Nat'l Bank of St. Louis, 788 S.W.2d 296, 300 (Mo. Ct. App. 1990). Communication by a corporation's officers or supervisors to non-supervisory employees constitute a publication for purposes of a defamation. Snodgrass v. Headco Indus. Inc., 640 S.W.2d 147 (Mo. Ct. App. 1982). However the intra-corporate immunity rule does not appear to be applicable to communications outside of the corporate context, for example partnerships.

 

Statute of Limitations for Defamation

An action for libel or slander that is first published in Missouri must be commenced within two years. Mo. Rev. State § 516.140 (2011).

Note: This page covers information specific to New Jersey. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In New Jersey, the elements of a defamation claim are:

1. a false statement about the plaintiff;
2. communication of the statement to a third party;
3. fault of the defendant amounting at least to negligence; and
4. damages suffered by the plaintiff.

See DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004). These elements of a defamation claim in New Jersey are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Public and Private Figures

New Jersey follows the U.S. Supreme Court's decision in Rosenblatt v. Baer, 383 U.S. 75 (1966), in determining who is a public official for purposes of defamation law. Under this test, the public official designation applies to "those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Costello v. Ocean County Observer, 643 A.2d 1012, 1021 (N.J. 1994) (quoting Baer). Reading this test expansively, New Jersey courts have consistently held that police officers are public officials. Other examples of public officials include a former school district athletic director, a tax assessor, a building inspector, an incumbent mayor.

New Jersey courts have a two-part test for deciding who is a limited-purpose public figure. First, the defamatory statement must involve a public controversy, namely a real dispute with an outcome that “affects the general public or some segment of it.” See McDowell v. Paiewonsky, 769 F.2d 942, 948 (3d Cir. 1985). Second, the court must consider “the nature and extent of plaintiff's involvement in that controversy.” See McDowell, 769 F.2d at 948. The following individuals, among others, have been held to be limited-purpose public figures in New Jersey:

• A candidate for a condominium board of directors, because his candidacy thrust him into the public eye, see Gulrajaney v. Petricha, 885 A.2d 496, 505 (N.J. Super. Ct. App. Div. 2005);
• A lawyer representing the New Jersey School Boards Association, at a time when the association's insurance problems generated widespread and justifiable media attention, see Schwartz v. Worrall Publ'ns, 610 A.2d 425, 428-29 (N.J. Super. Ct. App. Div. 1992); and
• Land use applicants, because their construction project were fairly and reasonably the subject of public interest, see LoBiondo v. Schwartz, 733 A.2d 516, 526 (N.J. Super. Ct. App. Div. 1999).

Actual Malice and Negligence

When a private figure plaintiff sues for defamation over statements of purely private concern (i.e., not related to a matter of legitimate public concern), New Jersey courts require the plaintiff to show that the defendant was at least negligent. In cases involving matters of legitimate public concern, the plaintiff must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. Public officials, all-purpose public figures, and limited-purpose public figures also must prove actual malice. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

New Jersey courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges.

In addition, New Jersey statutes recognize a privilege for cable television broadcasters who complying with their obligations under any State or Federal law, regulation, or policy requiring that broadcast services be made available to members of the public. See N.J. Stat. Ann. § 48:5A-50.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

The fair report privilege protects republishing “reports of defamatory statements made in judicial and other official proceedings,” in the interest that information from official proceedings be made available to the public. Costello v. Ocean County Observer, 643 A.2d 1012, 1018 (N.J. 1994). The report need not be “exact in every immaterial detail”, only “substantially correct.” However, a publisher who omits exculpatory language from the official report and thereby conveys an erroneous impression will lose the privilege.

For example, the privilege will cover the publication of official statements regarding police investigations, issued by police department heads and county prosecutors, unless the plaintiff can prove actual malice in the publication. See N.J. Stat. Ann. § 2A:43-1.

Neutral Reportage Privilege

New Jersey courts do not recognize a neutral reportage privilege. However, the extensive protections available under the New Jersey fair report privilege are analogous to a neutral reportage privilege. See Costello, 643 A.2d at 1028 (N.J. 1994) (O'Hern, J., concurring).

Wire Service Defense

The CMLP has not identified any cases in New Jersey concerning the wire service defense.

Statute of Limitations for Defamation

New Jersey has a one (1) year statute of limitations for defamation. See N.J.S.A. 2A:14-3.

New Jersey courts have adopted the single publication rule. Barres v. Holt, Rinehart & Winston, Inc., 378 A.2d 1148, 1151 (N.J. 1977). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

A New Jersey Superior Court has held that the single publication rule applies to Internet publications. See Churchill v. State, 876 A.2d 311, 319 (N.J. Super. Ct. App .Div. 2005). If other New Jersey courts follow the Churchill case, the statute of limitations should run from the date of first posting, unless more than merely technical changes are made to the website, triggering “republication.”

Note: This page covers information specific to New York. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under New York law, the elements of a defamation claim are:

1. a false statement;
2. published to a third party without privilege or authorization;
3. with fault amounting to at least negligence;
4. that caused special harm or defamation per se.

See Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept. 1999). These elements of a defamation claim in New York are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Public and Private Figures

New York courts rely heavily on the "vortex" notion of a limited-purpose public figure. See James v. Gannett Co., Inc., 40 N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the category of public figures is that the publicized person has taken an affirmative step to attract public attention."). The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). The guide states a person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). In New York, such figures have included candidates for public office, restaurants (for the purpose of food reviews), and religious groups.

Actual Malice and Negligence

When the plaintiff in a defamation lawsuit is a private figure and the allegedly defamatory statements relate to a matter of legitimate public concern, the plaintiff must prove that the defendant acted "in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau v. Utica Observer-Dispatch, 38 N.Y.S.2d 196, 199 (N.Y. 1975). This standard, which is a higher bar than negligence but lower than actual malice, focuses on an objective evaluation of the defendant's actions rather than looking at the defendant's state of mind at the time of publication.

At least one court has found that the same standard of fault applies to citizen or non-media defendants where the allegedly defamatory statements relate to a matter of legitimate public concern. See Pollnow v. Poughkeepsie Newspapers, 107 A.D.2d 10 (N.Y.A.D. 2d Dep't 1985), aff'd 67 N.Y.2d 778 (N.Y. 1986) (no liability for letter to the editor unless writer was "grossly irresponsible").

In cases brought by private figure plaintiffs involving statements not related to a matter of legitimate public concern, New York courts apply a negligence standard.

To determine whether statements relate to a matter of legitimate public concern, New York courts view the allegedly defamatory statements in context of the writing as a whole. They ask whether the matter can be "fairly considered as relating to any matter of political, social, or other concern of the community" and distinguish this broad category of newsworthy matters from "mere gossip and prurient interest." Overall, the test is deferential to the reporter's judgment about whether a matter is of legitimate public concern. See Huggins v. Moore, 94 N.Y.2d 296, 302-03 (N.Y. 1999).

Privileges and Defenses

New York courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, substantial truth, and the wire service defense. New York has not explicitly recognized or rejected the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice.

Fair Report Privilege

New York has codified the fair report privilege into law. N.Y. Civ. Rights § 74. Under the statute, speakers cannot be held liable for giving a "fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." A report is "fair and true" if it is substantially accurate.

Wire Service Defense

New York recognizes a privilege that is similar to the wire service defense but explicitly extends protection to content originating from other sources in addition to wire services. Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348 (S.D.N.Y. 1998). Under the privilege, courts will not hold republishers liable for reproducing defamatory content unless the republisher had or should have had "substantial reasons" to question the content's accuracy or the original speaker's good faith and reporting practices. See Karaduman v. Newsday, Inc., 51 N.Y.2d 531 (N.Y. 1980). Because courts applying these principles have dealt exclusively with traditional media entities such as newspapers and book publishers -- both as publishers and republishers -- it is not clear whether this privilege would apply to online speakers such as bloggers and citizen media websites.

Neutral Reportage Privilege

The status of the neutral reportage privilege in New York is not settled. The New York Court of Appeals has neither recognized nor rejected the privilege, and the lower courts disagree on whether it is part of New York law.

Statute of Limitations for Defamation

The statute of limitations for defamation in New York in one (1) year. See N.Y. C.P.L.R. 215(3).

New York has adopted the single publication rule. See Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119 (1948). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The single publication rule applies to the Internet in New York, with the statute of limitations running from the time the defamatory content first appears online. "Republication" of the allegedly defamatory content will restart the statute of limitations. A "republication" occurs upon "a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition.'" Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). The New York Court of appeals has indicated that altering the allegedly defamatory content may trigger republication, and a lower court has held that moving web content to a different web address triggered republication. See Firth v. State, 306 A.D.2d 666 (N.Y. App. Div. 2003).

Note: This page covers information specific to North Carolina. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in North Carolina are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

North Carolina has a broad definition of libel per se. This term refers to statements so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In North Carolina, a statement that does any of the following things amounts to libel per se:

• charges that a person has committed an infamous crime;
• charges a person with having an infectious disease;
• tends to impeach a person in that person's trade or profession; or
• otherwise tends to subject one to ridicule, contempt, or disgrace.

This last category of libel per se is quite broad and is not recognized by most other states.

Actual Malice and Negligence

In North Carolina, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

North Carolina courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. The status of the wire service defense and the the neutral reportage privilege is unsettled.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act. It is not clear whether actual malice defeats the fair report privilege in North Carolina.

Fair Report Privilege

In North Carolina, the fair report privilege protects accurate reports of government proceedings and public records.  Among other things, the privilege applies to court proceedings and information contained in court documents. It also extends to reports of arrests and the charges upon which the arrests were based. See LaComb v. Jacksonville Daily News, 543 S.E.2d 219, 221 (N.C. Ct. App. 2001).  To take advantage of the privilege, your report must be a "substantially accurate acount." It is not clear whether a plaintiff can defeat the fair report privilege by proving that the defendant acted with actual malice.

Neutral Reportage Privilege

The CMLP located no North Carolina cases addressing the neutral reportage privilege. If you know of any cases, please contact us.

Wire Service Defense

One North Carolina appeals court has recognized the wire service defense, but did not elaborate on its scope. See McKinney v. Avery Journal, Inc., 393 S.E.2d 295 (N.C. Ct. App. 1990).

Statute of Limitations for Defamation

The statue of limitations for defamation in North Carolina is one (1) year. See N.C. Gen. Stat. § 1-54.

The CMLP has identified no North Carolina cases addressing whether the state follows the single publication rule, either online or off. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. If you are aware of any North Carolina cases that acknowledge the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to Ohio. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in Ohio are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

Ohio recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. Ohio has a broad definition of defamation per se. In contrast to most states, which limit defamation per se to three or four specific categories of statements, Ohio defines the term as any statement that "reflects upon the character of [the plaintiff] by bringing him into ridicule, hatred, or contempt, or affects him injuriously in his trade or profession.” Becker v. Toulmin, 138 N.E.2d 391, 395 (Ohio 1956). A statement can constitute defamation per se only if it conveys its negative meaning directly, not by innuendo or implication.

Public and Private Figures

A public official is a government employee or official whose position has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees. See Scott v. News-Herald, 496 N.E.2d 699, 702 (Ohio 1986). Ohio courts have found law enforcement officials to be public officials, including a sheriff, a deputy sheriff, a university police officer, a bailiff, a chief probation officer, and the chief of the criminal section of a city law department. Other examples of public officials include a county treasurer, a county engineer, a municipal law director, a city council member, and members of the Board of Education.

In defining all-purpose and limited-purpose public figures, Ohio courts follow Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). All-purpose public figures are those who have achieved pervasive fame and influence. Examples include celebrities, professional athletes, and similarly famous people.

A limited-purpose public figure is someone who injects himself or herself into a particular public controversy. The determination of whether a particular individual qualifies as a limited-purpose public figure depends on the (1) plaintiff's access to the media; and (2) the extent to which the plaintiff, by virtue of his or her position in the community or involvement in a matter of public concern, can be said to invite public comment or attention. Examples of individuals and organizations deemed limited-purpose public figures by Ohio courts include:

• the owner of a private art school (for purposes of discussing its administration);

• a retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at school board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the board (for purposes of discussing his statements and conduct at a board meeting); and

• a restaurant and its owner (for purposes of review of the restaurant).

Actual Malice and Negligence

In defamation suits brought by private figure plaintiffs, Ohio courts require a plaintiff to prove by clear and convincing evidence that the defendant "failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Landsdowne v. Beacon Journal Publ'g, 512 N.E.2d 979, 984 (Ohio 1987). The Ohio test is similar to an ordinary negligence standard, but the "clear and convincing evidence" standard requires the plaintiff to put forward strong evidence of negligence.

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

Ohio courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

The Ohio Supreme Court has declined to recognize the neutral reportage privilege. The CMLP could identify no Ohio cases concerning the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party -– not you or your employee or someone acting under your direction –- posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

Ohio recognizes the fair report privilege, which is codified in two statutes, Ohio Rev. Code §§ 2317.04 and 2317.05.

• Ohio Rev. Code § 2317.04 provides a privilege to accurate reports of state and local legislative and executive proceedings, as well reports reproducing the contents of any bill, ordinance, report, resolution, bulletin, notice, petition, or other document presented, filed, or issued in such a proceeding. A plaintiff can defeat this privilege by showing that the defendant acted with actual malice.

• Ohio Rev. Code § 2317.05 provides a privilege to accurate reports of the return of any indictment, the issuance of a warrant, the arrest of any person accused of a crime, and the filing of any affidavit, pleading, or other document in a civil or criminal court case, as well as fair an impartial reports of the contents of these documents. A plaintiff can defeat this privilege by showing that the defendant (1) acted with actual malice, (2) failed to publish a reasonable written explanation or contradiction offered by the plaintiff, or (3) failed to publish, upon request of the plaintiff, the subsequent determination the lawsuit or case.

To take advantage of the fair report privilege, you do not need to quote the official record verbatim, but it must be a substantially accurate report, which means the report conveys the essence of the official record.

Neutral Reportage Privilege

The Ohio Supreme Court has declined to recognize the neutral reportage privilege. See Young v. Morning Journal, 669 N.E.2d 1136, 1138 (Ohio 1996).

Wire Service Defense

The CMLP could not identify any cases concerning the wire service defense in Ohio. If you are aware of any cases, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation in Ohio is one (1) year. See Ohio Rev. Code § 2305.11 (1981).

The status of the single publication rule in Ohio is not settled. For a definition of the "single publication rule," see the Statute of Limitations for Defamation page.

Note: This page covers information specific to Pennsylvania. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Although Pennsylvania courts invoke a complicated statutory definition found in 42 Pa. Cons. Stat. §§ 8341-8345 (see especially § 8343), in practice the elements of a defamation claim are similar to the elements discussed in the general Defamation Law section. However, Pennsylvania law has some characteristics that differ slightly from the general section's description of defamation law:

Public and Private Figures

Pennsylvania defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Pennsylvania courts include:

• police officers;
• public high school teachers and coaches;
• a school board director;
• a candidate for judge;
• a celebrity with access to the media; and
• a union official.

Some examples of individuals deemed to be limited-purpose public figures by Pennsylvania courts include:

• a locally renowned, Philadelphia-based singer who posed for as a centerfold and was extensively interviewed in an accompanying article in Playboy magazine;
• a licensed architect and civil engineer who participated in numerous public building projects that had been the subject of public controversy; and
• the president of an art foundation at the time the foundation's paintings went on a widely publicized international art exhibition tour.

Some examples of individuals deemed to be private figures by Pennsylvania courts include:

• a person who allegedly misrepresented himself as a member of the board of a non-profit organization;
• a dentist who received public reimbursement from state funds for dental work performed on lower-income patients; and
• an individual planning to host of a private party when a neighbor called a newspaper to complain about the party.

Actual Malice and Negligence

In Pennsylvania, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Pennsylvania courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

Pennsylvania does not recognize the the neutral reportage privilege. The Pennsylvania Supreme Court has neither recognized or rejected the wire service defense, but lower courts have consistently refused to recognize this defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

The Fair Report Privilege

Pennsylvania recognizes the fair report privilege. The privilege applies to reports and summaries of information contained in government reports or discussed in government proceedings. This includes court proceedings, court records, and open meetings. It also applies to government press releases, including police press releases.

The privilege applies to "fair and accurate" accounts of the underlying documents or proceedings. A report is fair and accurate if it is "substantially accurate." A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

Neutral Reportage Privilege

The Pennsylvania Supreme Court has expressly rejected the neutral reportage privilege. See Norton v. Glenn, 860 A.2d 48 (Pa. 2004).

Wire Service Defense

The Pennsylvania Supreme Court has neither recognized or rejected the wire service defense, but lower courts have consistently refused to recognize this defense.

Statute of Limitations for Defamation

Pennsylvania has a one (1) year statute of limitations for defamation. See 42 Pa. Cons. Stat. § 5523(1).

The state has adopted the single publication rule. See 42 Pa. Cons. Stat. § 8341. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Pennsylvania that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Pennsylvania cases that acknowledge the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to Texas. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Texas, the elements of a defamation claim are

1. publication of a statement;
2. that was defamatory concerning the plaintiff;
3. with the requisite degree of fault.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The elements of a defamation claim are for the most part similar to the elements discussed in the general Defamation Law section, with the following clarifications:

Public and Private Figures

Texas law defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the general Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Texas courts include:

• law enforcement officers including a county sheriff, a deputy sheriff, and an undercover narcotics agent with the Texas Department of Public Safety;


• a Texas Child Protective Services specialist in charge of investigating cases of alleged child abuse and neglect and providing services for the children involved;


• an assistant regional administrator of a branch office of the United States Securities and Exchange Commission; and


• a court-appointed child psychologist in a child custody case who had the authority to determine visitation rights.

Some examples of individuals deemed to be limited-purpose public figures by Texas courts include:

• a candidate for city counsel, because he thrust himself into the middle of a public controversy;


• a former special counsel for a court of inquiry investigating alleged irregularities in county fund management;


• a zoologist who actively participated in a controversy involving his work with kinkajous by appearing on television, giving interviews to magazines, and orchestrating a letter-writing campaign;


• a broadcast news reporter who hosted a segment that regularly appeared on television;


• an abortion clinic protester who regularly appeared on a public street near the entrance to the clinic;


• a group of hackers called Legion of Doom who sought publicity in a controversy over computer security.

Actual Malice and Negligence

In Texas, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statement. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statement was false or recklessly disregarding its falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Texas courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Although the Texas Supreme Court has not ruled on the issue, many lower courts in Texas have recognized a privilege similar to the neutral reportage privilege.

The CMLP has not identified any cases in Texas that recognize the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

Fair Report Privilege

In Texas, the fair report privilege protects a "fair, true, and impartial account" of various official proceedings and meetings, including:

• court proceedings, including reports of the contents of pleadings filed with the court;
• executive or legislative proceedings, including proceedings of legislative committees;
• proceedings before a managing board of an educational or charity institution supported from public funds;
• proceedings of the governing body of a city or town, of a county commissioners court, or of a public school board; and
• public meetings on matters of public concern.

One court has applied the fair report privilege to reporting based on a police department press release. See Freedom Commc'n v. Sotelo, 2006 WL 1644602 (Tex. App. June 15, 2006).

A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

Neutral Reportage Privilege

The Texas Supreme Court has neither recognized or rejected the neutral reportage privilege. Many lower courts have recognized a similar privilege, without calling it "neutral reportage." Under the rule set forth in these cases, when the media reports on an accusation made by a third party, it can defend itself by showing that the accusation was in fact made and under investigation, rather than by showing that the underlying allegation was substantially true. See Dolcefino v. Turner, 987 S.W.2d 100, 109 (Tex. App. 1998). This privilege extends to investigations and accusations made by government and non-government actors and organizations. Proof of actual malice defeats this privilege.

Wire Service Defense

The CMLP has not identified any cases in Texas that recognize the wire service defense. If you are aware of any cases, please notify us.

Statute of Limitations for Defamation

Texas has a one (1) year statute of limitations for defamation. See Tex. Civ. Prac. & Rem. Code sec. 16.002.

Texas has adopted the single publication rule. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Texas state courts have not yet considered whether the single publication rule applies to postings on the Internet, but a federal appeals court applying Texas law recently adopted it in the Internet context. See Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007). See also Hamad v. Center for the Study of Popular Culture, No. A-06-CA-285-SS (W.D. Tex. June 26, 2006) (adopting single pubication rule for Internet publications).

Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law section of this guide.

Elements of Defamation

In Virginia, the elements of a defamation claim are

1. publication of
2. an actionable statement with
3. the requisite fault on the part of the defendant.

To be “actionable,” the statement must be a false statement of fact that harms the plaintiff's reputation in the community or deters other persons from associating with him or her. These elements of a defamation claim in Virginia are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Virginia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Virginia, a statement that does any of the following things amounts to defamation per se:

• attributes to the plaintiff the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
• indicates that the plaintiff is infected with a contagious disease;
• attributes to the plaintiff unfitness to perform the duties of an office or employment of profit, or lack of integrity in the discharge of the duties of such an office or employment; or
• hurts the plaintiff in his or her profession or trade.

Fleming v. Moore, 221 Va. 884, 899 (1981).

Public and Private Figures

The Virginia courts generally require a high level of public activity before a plaintiff becomes a limited-purpose public figure. The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). In Virginia, courts look at the following factors in determining whether a plaintiff is a limited-purpose public figure:

1. whether the plaintiff had access to channels of effective communication;
2. whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;
3. whether the plaintiff sought to influence the resolution or outcome of the controversy;
4. whether the controversy existed prior to the publication of the defamatory statements; and
5. whether the plaintiff retained public figure status at the time of the alleged defamation.

Carr v. Forbes, Inc., 259 F.3d 273, 280 (2001) 

In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:

• the president of the two charitable organizations because the charities thrust themselves into the public eye through fund raising awareness efforts (Chapin v. Knight‑Ridder, Inc.);


• a widely-published scientist and self-styled whistleblower who claimed the National Cancer Institute (NCI) had reversed its official position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News);


• A dolphin scientist who attempted to sell his dolphin technology to military and nonmilitary industries and who sought to influence the outcome of a public controversy through brochures and public statements (Fitzgerald v. Penthouse).

On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:

• a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore);


• a public school English teacher and short-term, acting department head whose students complained of her poor teaching performance to parents and the school principal (Richmond Newspapers v. Lipscomb);


• a company engaged in archaeological research for both government and private entities that was not generally known to the community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror).

Actual Malice and Negligence

Virginia courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent. In cases brought by private figures where substantial danger to reputation is not apparent, the actual malice standard applies. The Gazette, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985).

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.  

Privileges and Defenses

Virginia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

CMLP has not identified any Virginia cases that recognize or refuse to recognize the neutral reportage privilege or the wire service defense. See Chapin v. Knight‑Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (stating that "[w]e have never adopted or rejected the ‘neutral reportage' privilege . . . .")

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

In Virginia, the precise scope of the fair report privilege is not clear because all of the cases interpreting it have involved reports of court proceedings. The privilege covers reports of court proceedings, including matters stated in court documents, when the report is made in good faith and substantially accurate.

In Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va. 1956), the Virginia Supreme Court stated that "[t]he publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record." Because the case involved court proceedings not other government records, this statement would not necessarily bind later courts, but it is likely that Virginia courts would apply the privilege to government records open to the public. In that case, you would be privileged to report on information contained in marriage and divorce records, birth and death records, and property records, among other things, in addition to matters reflected in court records and proceedings.

A few federal courts interpreting Virginia law have applied the fair report privilege to "governmental actions," like the unofficial public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of reprimand leaked to the press, Reuber, 925 F.2d at 713.

Neutral Reportage Privilege

CMLP has not identified any cases in Virginia concerning the neutral reportage privilege.  If you are aware of any, please contact us. 

Wire Service Defense

CMLP has not identified any cases in Virginia concerning the wire service defense.  If you are aware of any, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. See Va. Code Ann. Sec. 8.01-247.1.

The Virginia Supreme Court has not ruled on whether the single publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. One federal appeals court applying Virginia law upheld application of the single publication rule, reasoning that a great majority of states now follow it. Morrissey v. William Morrow & Co., Inc., 739 F.2d 962, 967 (4th Cir. 1984).

The CMLP could not locate any cases in Virginia that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Virginia cases that acknowledge the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to Washington. For general information concerning defamation, see the general Defamation Law section of this guide.

Elements of Defamation

According to Washington law, defamation claims have four elements:

1. falsity;
2. an unprivileged communication;
3. fault on the part of the defendant; and
4. damages.

These elements of a defamation claim in Washington are for the most part similar to the elements listed in the general Defamation Law section. However, in Washington, the elements of a defamation claim have two characteristics that differ slightly from the general section's description of defamation law.

Public and Private Figures

Washington courts rely heavily on the "vortex" notion of a limited-purpose public figure. See Camer v. Seattle Post-Intelligencer, 723 P.2d 863 (Wash. 1986). The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). The guide states a person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974).

For example, a businessman who was involved in a commercial real-estate development project was considered a limited-purpose public figure in a defamation lawsuit against a newspaper which had printed articles about the development project that stated he was a tax felon. The court reasoned the businessman was a limited-purpose public figure because he “thrust himself into the vortex of [the] public issue” when he sent letters to residents of the real-estate development area telling the residents about the development project and advising them he would be updating them on its progress. Clardy v. Cowles Pub. Co., 912 P.2d 1078 (Wash. Ct. App. 1986).

Actual Malice and Negligence

Washington courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent.

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection. 

Failure to investigate is not sufficient to prove actual malice. You should be aware that when you do investigate and facts come to light that either do not support or rebut your factual assertion, the jury may infer recklessness and thus find actual malice if you go ahead and publish the information and it turns out to be false and defamatory. See Herron v. KING Broad. Co., 776 P.2d 98, 106 (Wash. App. Ct. 1989).

Privileges and Defenses

Washington courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

The status of the neutral reportage privilege is unclear and CMLP has not identified any cases in Washington concerning the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 P.3d 1178, 1188 (Wash. App. Ct. 2002).

Fair Report Privilege

Washington recognizes the fair report privilege.  The privilege extends to accurate reports of court proceedings, as well as documents filed in those proceedings.  See Mark v. Seattle Times, 635 P.2d 1081 (Wash. 1981).  A plaintiff cannot defeat the fair report privilege by a showing othat the defendant acted with actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 P.3d 1178, 1188 (Wash. App. Ct. 2002).

Neutral Reportage Privilege

It is unclear whether the neutral reportage privilege exists in Washington.

The Washington Supreme Court noted the existence of the neutral reportage doctrine and that there was a "modern" trend towards rejecting it, but declined to rule on the privilege as neither party had raised the issue. Herron v. Tribune Publ'g Co., 736 P.2d 249, 260 (Wash. 1987).

However, at least one lower court recognized the neutral reportage privilege in a case involving a newspaper publishing defamatory allegations concerning a businessman made by anonymous union sources. Senear v. Daily Journal American, 8 Media L. Rep. 2489, 2492-93 (Wash. Super Ct. 1982).

Wire Service Defense

CMLP has not identified any cases in Washington concerning the wire service defense.  If you are aware of any cases, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation in Washington is two (2) years. See Wash. Rev. Code sec. 4.16.100.

The Washington Supreme Court has adopted the single publication rule. Herron v. KING Broad. Co., 746 P.2d 295 (Wash. 1987). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Washington that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Washington cases that acknowledge the single publication rule in the Internet context, please notify us.

Note: This page covers information specific to Arizona. For general information concerning false light see the general False Light section of this guide.

Arizona recognizes the tort of “false light” as one of the four “invasion of privacy” torts. Plaintiffs can sue for false light when offensive and false information or innuendo about them is spread publicly. The specific elements a plaintiff must prove are listed below under Elements of a False Light Claim.

While false light in Arizona is similar to defamation, there are several differences.

• First, statements need to be publicized more widely for false light than defamation. See Hart v. Seven Resorts, Inc., 947 P.2d 846, 854 (1997) (“‘Publicity’ as it is used [for false light] differs from ‘publication’ [for defamation purposes].”) (second alteration in original) (quoting Restatement (Second) of Torts § 652D).
• Second, defamation requires harm to reputation or other social consequences, while false light does not. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (1989) (“Privacy, [unlike defamation], does not protect reputation but protects mental and emotional interests. . . . Under this theory, a plaintiff may recover even in the absence of reputational damage... .”)
• Third, material must be offensive for false light, id. at 786, while it need not be for defamation.
• Fourth, false light in Arizona protects against not only false statements, but also false implications and innuendo. Id. at 787.

Elements of a False Light Claim

Arizona has adopted the formulation of the tort of false light found in Restatement (Second) of Torts § 652E. Godbehere, 783 P.2d at 786‑87. To establish a false light claim, a plaintiff must show that the defendant (1) made statements about the plaintiff (2) to the public that are (3) “highly offensive to a reasonable person” and (4) the defendant “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed.” Hart, 947 P.2d at 854. Each of these requirements is described in greater detail below.

Identification of Plaintiff

CMLP is not aware of any Arizona case law discussing how specifically a statement must identify the plaintiff to create an actionable claim for false light.

Public Disclosure

False light, as well as the other invasion of privacy torts recognized in Arizona “‘depends upon publicity given to the private life of the individual.’” Hart, 947 P.2d at 854 (quoting Restatement (Second) of Torts § 652D). To make out a claim for false light, a plaintiff must show that “‘the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become public knowledge.’” Id., (quoting Restatement (Second) of Torts § 652D). The form of communication (oral, written, etc.) does not matter as long as the communication “‘reaches, or is sure to reach, the public.’” Id. (quoting Restatement (Second) of Torts § 652D).

To prove publicity, the plaintiff must provide more than an “unsubstantiated allegation” that information has been communicated publicly. Id. at 855. In Hart, the court provided a list of illustrative examples of “the kinds of evidence” a plaintiff might use to help prove publication, including “affidavits from persons in the community who had heard the rumors; affidavits by [the plaintiff] denying that they discussed [the information], thereby starting the rumors themselves; or any direct allegation of actual publication (e.g. via newspaper, public announcement, etc.) by [the defendant].” Id. at 855 n.18.

Offensiveness

The statement must be “highly offensive to a reasonable person.” Godbehere, 783 P.2d at 786 (citing Time, Inc. v. Hill, 385 U.S. 374 (1967); Restatement (Second) of Torts § 652E); Hart, 947 P.2d at 854. “Thus, the plaintiff’s subjective threshold of sensibility is not the measure, and ‘trivial indignities’ are not actionable.”  Godbehere, 783 at 786. In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.

Falsehood

To prove false light, a plaintiff must show “‘a major misrepresentation of [the plaintiff’s] character, history, activities or beliefs,’ not merely minor or unimportant inaccuracies.” Godbehere, 783 P.2d at 787 (alteration in original) (quoting Restatement § 652E (Second) of Torts cmmt c).

“A false light cause of action may arise when something untrue has been published about an individual, or when the publication of true information creates a false implication about the individual.” Id. (internal citation omitted). Thus, false light protects against not only outright falsehoods, but also against false innuendo, and “[a] plaintiff may bring a false light invasion of privacy action . . . even though the actual facts stated are true.” Id.

As an example of this type of statement, the court in Godbehere cited Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), in which the plaintiff successfully sued for false light invasion of privacy when photographs for which she had posed nude and consented to publication in Playboy magazine were actually published in Hustler magazine, “a publication of much lower standing in the journalistic community.” Id. at 787 n.2.

Fault

A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Arizona, the plaintiff must show that the defendant acted “with knowledge of the falsity or reckless disregard for the truth.” Godbehere, 162 Ariz. at 786, 788. This language echoes the “actual malice” standard in public figure defamation cases.

While the Supreme Court of Arizona has specified that the “actual malice” standard applies to false light claims made by public figures, id. at 788‑89, it has left open the question of whether a non‑public figure may recover under a false light claim where he shows negligence but not actual malice, id. at 789 n.6.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. There is also an important common law protection that may be protect you when you comment on issues of public concern:

Issues of Public Concern Related to Public Officials

The Supreme Court of Arizona has specified that “there can be no false light invasion of privacy action for matters involving official acts or duties of public officers” because of public officials’ more limited privacy rights. Godbehere, 783 P.2d at 789. As a result, “a plaintiff cannot sue for false light invasion of privacy if he or she is a public official and the publication relates to performance of his or her public life or duties.” Id. Unlike in some other states, Arizona has not limited this protection to only media defendants.

Note: This page covers information specific to California. For general information concerning false light see the general False Light section of this guide.

California recognizes "false light" claims. A person can sue for false light when something highly offensive is implied to be true about them that is actually false.

False light in California is different from defamation. While defamation concerns statements that are actually false, false light is about false implications. The difference between defamation and false light can be illustrated by Gill v. Curtis Publ'g Co., 239 P.2d 630 (Cal. 1952), the case that established false light in California. In Gill, the "Ladies Home Journal" published an article criticizing "love at first sight" as being based on nothing more than sexual attraction. The author said such love was "wrong" and would lead to divorce. The article featured a photo of a couple, with the caption, "[p]ublicized as glamorous, desirable, 'love at first sight' is a bad risk." The couple, who did not know the photo had been taken, sued. Although the journal did not actually say the couple was engaged in the "wrong" kind of love, the implication was clearly there. The couple won by proving the magazine created a false impression of them.

Elements of a False Light Claim

Falsehood

First, in order to prove a false light claim, a plaintiff must show that the defendant implied something false. For instance, in Gill, discussed above, the photograph created the false impression that the couple was behaving wrongly in love. Similarly, in Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), the court found that having an actor's photo on the cover of Playgirl magazine, in combination with the magazine's headlines, could create the false impression that nude photos of the actor appeared inside.

On the other hand, when there is no false implication of fact, the claim will not succeed. True statements are not actionable. Moreover, when the context shows that the writer is using "rhetorical hyperbole" and "imaginative expression" that "cannot be read to imply the assertion of an objective fact," the plaintiff's claim will fail. See Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995).

It is important to distinguish the types of falsehoods appropriate for a false light claim versus a defamation claim. As discussed above, defamation concerns false statements of fact, while false light concerns false implications. Plaintiffs generally cannot sue for both at the same time about the same statement. When a plaintiff sues for both defamation and false light, and the suit basically concerns a false statement of fact, the court will dismiss the false light claim as superfluous. See, e.g., McClatchy Newspapers, Inc. v. Superior Court, 189 Cal. App. 3d 961, 13 Media L. Rep. 2281 (Cal. Ct. App. 1987); see also "Single Publilcation Rule," Cal. Civil. Code. § 3425.3 (prohibiting more than one cause of action concerning a false statement for the same publication).

Offensiveness

For the plaintiff to win, the statement must do more than create a false impression. The false impression that is created must be "highly offensive to a reasonable person." Fellow v. Nat'l Enquirer, Inc., 32 Cal. 3d 234, 238, 13 Media L. Rep. 1305 (Cal. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.

Identification of Plaintiff

The falsehood in question must sufficiently identify the plaintiff. California courts generally do not require the plaintiff to be identified by name. For instance, cases such as Gill, discussed above, concern photographs of plaintiffs.

Public Disclosure

A plaintiff must show that the defendant publicly disclosed the falsehood concerning them. While this basic requirement is clear, its application is not -- courts go back and forth on how many people must receive the information for it to be "publicly disclosed." It is safe to say that publishing on the Internet for the whole world to see is public disclosure, and it probably safe to say that privately telling one person is not public disclosure; but it is hard to define the requirement any further.

Fault

A plaintiff must also show that the false implication occurred due to the defendant's fault.  If the plaintiff is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See Readers's Digest Ass'n v. Superior Court, 37 Cal. 3d 244, 265 (Cal. 1984); Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002). Although the California Supreme Court has not decided the level of fault plaintiffs who are not public figures must show, lower California courts indicate that plaintiffs must show that defendants acted "negligently." See, e.g., M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (Cal. Ct. App. 2001). For more information on possible levels of fault in claims for published falsehoods, see the section on Actual Malice and Negligence in this guide.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case.  See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

Opinion

A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for a negative opinion. Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see the section on Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

Parody

You will not be held liable for casting a plaintiff in a false light if the false statement of fact in question is in a context the average reader would understand is a parody. See San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal. App. 4th 655, 21 Media L. Rep. 1791 (1993). In San Francisco Bay Guardian, the court held that a newspaper would not be held liable for statements in its April Fool's Day section suggesting that a landlord gave his tenants electroshock therapy because a reasonable reader would understand them as parody.

Note: This page covers information specific to the District of Columbia. For general information concerning false light see the general False Light section of this guide.

The District of Columbia recognizes the tort of "false light." Plaintiffs can sue for false light when a false and offensive statement is made about them to the public and causes them distress. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

False light in the District of Columbia overlaps significantly with Defamation. In D.C., defamation and false light both protect against the same wrongs -- offensive false statements. The key difference between defamation and false light is that they protect against different harms flowing from such statements. "The false light . . . action differs from an action for defamation because a defamation tort redresses damage to reputation while a false light privacy tort redresses mental distress from having been exposed to public view." White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). In other words, defamation protects a person's public reputation, while false light protects a person's internal mental tranquility.

Despite this difference in protected interests, "[t]here is a great deal of overlap between the causes of action for defamation and false light." Moldea v. New York Times Co.,15 F.3d 1137, 1151 (D.C. Cir. 1994). As the Moldea court noted, "[p]ublicity that is actionable in a false light claim generally will be actionable in defamation as well." Id. Courts often treat the two as analytically similar.

Because false light and defamation overlap so greatly, plaintiffs may only recover on one or the other theory concerning the same publication. Modea, 15 F.3d at 1151. The defenses, privileges, and burdens of proof that protect defendants in defamation cases are equally applicable to false light cases.

Because of the overlap between defamation and false light, you should review the section on District of Columbia Defamation Law as well.

Elements of a False Light Claim

If a plaintiff files a false light claim, he or she must show that there was

1. public disclosure of
2. a false statement, representation, or imputation
3. about the plaintiff that
4. would be highly offensive to a reasonable person.

See Klayman v. Segal, 783 A.2d 607, 613 (D.C. 2002). Moreover, the plaintiff must show that the defendant is at fault.

The recent case of Benz v. Washington Newspaper Publ'g Co., 34 Media L. Rep. 2368 (D.D.C. 2006), illustrates how false light works in DC. In that case, a producer from CNN claimed that the Washington Enquirer had stated that she had been "been linked romantically with power players" and that she had "hooked up" with a "porn king." Id. at n.5. The court found that the newspaper's statements were "highly offensive."

Falsehood

First, in order to prove a false light claim, a plaintiff must show that something false was stated. The falsehood can be implied or directly stated. See White v. Fraternal Order of Police, 909 F.2d 512, 523 (D.C. Cir. 1990).

Offensiveness

For the plaintiff to win, the statement must do more than state a false fact. The false fact stated must be "highly offensive to a reasonable person." S. Air Transp., Inc. v. ABC,, 670 F. Suppp. 2d. 38, 42 (D.D.C. 1987) (quoting Restatement 2d of Torts § 652E). It is not enough that the plaintiff is offended; it must be reasonable to take offense.

Identification of Plaintiff

The falsehood in question must identify the plaintiff somehow. The plaintiff does not need to be named, as long as he or she can be identified. See Lohrenz v. Donnelly, 223 F. Supp. 2d 25, 47-48 (D.D.C. 2002).

Public Disclosure

While District of Columbia courts require the false statement to be disclosed to the public, they have not ruled on what exactly that means. It is safe to say that publishing on the Internet for the whole world to see is public disclosure.

Fault

A plaintiff must also show that the defendant was at fault when he or she caused the false implication. If the defendant is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See White v. Fraternal Order of Police, 909 F.2d 512, 524-25 (D.C. Cir. 1990)). At least one D.C. court has held that plaintiffs who are not public figures must merely show that defendants acted "negligently." See Dresbach v. Doubleday & Co., 512 F. Supp. 1285, 1288 (D.D.C. 1981). For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

No Suits by Corporations

False light in the District of Columbia compensates the plaintiff for mental distress and anguish. One federal district court in D.C. held that because corporations cannot be offended, they cannot sue for false light. See S. Air Transp., Inc. v. ABC, 670 F. Supp. 38, 42 (D.D.C. 1987).

Opinion

A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for an opinion that offends others. Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

Fair Comment

One court in D.C. has held that the fair comment privilege, which applies to defamation claims, also protects defendants in false light claims. In Lane v. Random House, Inc., 985 F. Supp. 141, 150 (D.D.C. 1995), the court described the privilege as protecting a writer when he offers his views on a situation where "the reader is aware of the factual foundation for" the author's statement. In such a situation, the reader can "judge independently whether the comment is reasonable." Id. The court noted that "the fair comment privilege can be invoked even if the underlying facts are not included with the comment." Id.

Note: This page covers information specific to Florida. For general information concerning false light see the general False Light section of this guide. 

Florida false light law is in flux. While some Florida appellate courts have recognized false light claims, the Florida Supreme Court has not ruled on whether the tort applies in Florida. It has indicated, however, that an invasion of privacy action may be used to remedy what it described as “false light in the public eye--publication of facts which place a person in a false light even though the facts themselves may not be defamatory.”  See Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So.2d 1239, 1252 (Fla. 1996).

On March 6, 2008, the Florida Supreme Court heard oral argument in the appeal of Gannett Co. v. Anderson, 947 So.2d 1. (Fla. Dist. Ct. App. 2006). Anderson claimed that a Gannett news article, while factually true, raised the false implication that he had murdered his wife with a 12-gauge shotgun because the article waited two sentences to mention that the shooting had been declared accidental. Gannett, 947 So.2d at 3. The court’s decision in that case is expected to resolve whether false light invasion of privacy is distinct from defamation in Florida.

Elements of a False Light Claim

Florida appellate courts that have recognized false light have applied the elements discussed in the general False Light section, with the following exceptions and clarifications:

Offensiveness

The statement must be "highly offensive to a reasonable person" to constitute false light invasion of privacy.  See See Straub v. Scarpa, 967 So.2d 437, 439 (Fla. Dist. Ct. App. 2007) (quoting Restatement (Second) of Torts § 652E). For example, a letter to a homeowners’ association stating that the association budget “will no doubt contain very expensive items that have nothing to do with the operation of our community,” did not cast a director of the association in a false light because no reasonable person would be highly offended by the letter. Straub, 967 So.2d at 439.

Falsehood

Florida courts have not required falsehood.  For example, a Florida appellate court held that a man could claim false light invasion of privacy when a 60 Minutes television segment included interview footage of his former wife in the midst of “stories and pictures of women who had been abused, battered, and killed by their domestic partners.” See Heekin, 789 So.2d at 358. False light was an actionable claim because the broadcast created the impression that the plaintiff had battered his wife, even though the entire broadcast was truthful. According to the court, “neither knowledge of the falsity of the information nor reckless disregard for its truth is an element of a cause of action for false light invasion of privacy.” See Heekin, 789 So.2d at 359.

Fault

Florida courts have required that the “defendant must have acted either knowingly or in reckless disregard as to the falsity of the publicized material and the false light in which it would be placed.” Lane v. MRA Holdings, LLC, 242 F.Supp.2d 1205, 1221 (M.D. Fla. 2002).

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case.  See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

Note: This page covers information specific to Georgia. For general information concerning false light see the general False Light section of this guide.

Georgia recognizes the tort of "false light."  Plaintiffs can sue for false light when false information is spread about them that depicts them in an untruthful and highly offensive manner. The specific things a plaintiff must prove to establish false light are listed below under "Elements of a False Light Claim."

False light in Georgia is essentially the same as defamation. No reported decision in Georgia state courts has found a defendant liable for false light without also finding the defendant liable for defamation. But see Maples v. Nat'l Enquirer, 763 F. Supp. 1137, 1141 (N.D. Ga. 1990) (finding that under Georgia law, statements can constitute false light without being defamatory). Georgia courts readily acknowledge that "[t]he interest protected [by the tort of false light] is clearly that of reputation, with the same overtones of mental distress as in defamation." Association Servs. v. Smith, 549 S.E.2d 454, 459 (Ga. Ct. App. 2001).

What the overlap means is that if you are sued for false light, you will probably also be sued for defamation (and vice versa). If you are concerned about false light, you should also review Georgia Defamation Law. Notably, "absolute privileges" that completely shield someone from liability for defamation also apply to claims for false light. See Rothstein v. L.F. Still & Co., 351 S.E.2d 513, 514-15 (Ga. Ct. App. 1986).

Elements of a False Light Claim

To establish a claim of false light in Georgia, a plaintiff must establish the existence of false publicity that depicts the plaintiff as something or someone which she is not. Next, the plaintiff must demonstrate that the false light in which she was placed would be highly offensive to a reasonable person. Association Servs., 351 S.E.2d at 459.

Falsehood

First, in order to prove a false light claim, the plaintiff must show that he or she has been depicted as something he or she is not. In other words, the plaintiff must show that a falsehood about him or her was stated. True statements cannot form the basis of a lawsuit.

Offensiveness

For the plaintiff to win, the statement must do more than create a false impression. The false impression that is created must be "highly offensive to a reasonable person." Brewer v. Rogers, 439 S.E.2d 77, 83 (Ga. Ct. App. 1993) (quoting, via other cases, Restatement (Second) of Torts § 652E). Georgia courts emphasize that they do not protect "hypersensitive" people. Thomason v. Times-Journal, Inc., 379 S.E.2d 551, 604 (1989) (finding no liability for the wrong name being accidentally used in an obituary).

Identification of Plaintiff

The falsehood in question must identify the plaintiff in particular. See, e.g., Collins v. Creative Loafing Savannah, Inc., 592 S.E.2d 170 (Ga. Ct. App. 2003).

Public Disclosure

A plaintiff must also show that the defendant publicly disclosed the falsehood concerning them. While this basic requirement is clear, it can be difficult to determine in particular situations whether telling a limited number of people in a certain setting constitutes "the public." It is safe to say that publishing on the Internet is public disclosure.

Fault

A plaintiff must also show that the defendant's fault caused the false implication. If the defendant is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See Brewer v. Rogers, 439 S.E.2d 77 (Ga. Ct. App. 1993). In most other situations, courts require the plaintiff merely to show that the defendant has been "negligent." For more information on possible levels of fault in claims for published falsehoods, see the section on Actual Malice and Negligence.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

Opinion

A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for a negative opinion. See S&W Seafoods Co. v. Jacor Broad., 390 S.E.2d 228 (Ga. Ct. App. 1989). Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

Issues of Public Concern

Georgia courts have held that you cannot be sued for false light when you comment on an issue of public interest. See Wilson v. Thurman, 445 S.E.2d 811 (Ga. Ct. App. 1994) (finding that defendant police officers could not be held liable for false light after allegedly wrongfully investigating plaintiff for and charging him with sodomy (at that time a crime in Georgia) because the investigation focused on a matter of public concern).

Note: This page covers information specific to Illinois. For general information concerning false light see the general False Light section of this guide.

Illinois recognizes the tort of "false light." A person can sue for false light when a false and offensive statement is made about them to the public and causes them distress. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

False light in Illinois overlaps significantly with defamation. In Illinois, defamation and false light both protect against the same wrongs -- offensive false statements. The key difference between defamation and false light is that they protect against different harms flowing from such statements. Defamation protects a person's public reputation, while false light protects a person's internal mental tranquility. See, e.g., Martin-Trigona v. Kupcinet, 1988 WL 93945 (N.D. Ill. Sept. 2, 1988).

False light in Illinois is broader than defamation. While everything that is defamation is also false light, false light reaches some things that defamation does not. See Lovgren v. Citizens First Nat'l Bank, 534 N.E.2d 987 (Ill. 1989). For instance, in Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), a woman who had posed nude in Playboy sued Hustler because it published nude photos of her without her consent. The court stated that she had a right to sue for false light because Hustler insinuated that she was willing to appear nude in a "degrading setting."

Despite their overlap, a plaintiff can sue for both false light and defamation and potentially recover damages based on both claims. See, e.g., Lovgren, 534 N.E.2d at 987.

Elements of a False Light Claim

If a plaintiff files a false light claim, he or she must show that the defendant, acting with reckless disregard, placed him or her before the public in a false light in a manner that was highly offensive to a reasonable person. Lovgren, 534 N.E.2d at 989 (quoting Restatement (Second) of Torts § 652(E)).

The case of Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201 (Ill. 1992) provides a good illustration of how false light works in Illinois. In that case, a man alleged that he was working to promote a cartoon festival to benefit victims of neurofibromatosis (sometimes called 'Elephant Man's disease'). The man, whose wife and son suffered from the disease, appeared on a morning radio talk show to promote the festival. The DJs allegedly mocked the man's wife and child, implying (falsely) that they had abnormally large heads. The court held that based on his allegations, the man would be able to sue the radio station for false light.

Falsehood

First, in order to prove a false light claim, a plaintiff must show that something false was stated. You cannot be sued for "strong criticism" that is neither true nor false, but merely opinion. See, e.g., Raveling v. HarperCollins Publishers, 2004 WL 422538, at *2 (N.D. Ill. Feb. 10, 2004).

Offensiveness

For the plaintiff to win, the statement must do more than state a false fact. The false fact stated must be "highly offensive to a reasonable person." Lovgren, 534 N.E.2d at 989 (quoting Restatement (Second) of Torts § 652(E) (1977)). It is not enough that the plaintiff is offended; it must be reasonable to take offense. In the Kolegas case discussed above, the Illinois Supreme Court held that it would be reasonable to take offense at the allegation that a man's wife and child had abnormally large heads due to disease.

Identification of Plaintiff

The falsehood in question must identify the plaintiff somehow. The plaintiff does not need to be named, as long as he or she can be identified.

Public Disclosure

Illinois courts require the false statement to be disclosed to the public. See Lovgren, 534 N.E.2d at 989. For instance, in Lovgren the court found that an advertisement published in a local newspaper and handbills distributed in public were sufficient to constitute public disclosure. It is safe to say that publishing on the Internet for the whole world to see is public disclosure.

Fault

A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Illinois, the plaintiff must show that the defendant acted with "actual malice." See Lovgren, 432 N.E.2d at 989-991. For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

Opinion

A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for an opinion that offends others. As mentioned in the Raveling case, you cannot be sued for "strong criticism" alone, unless false statements of fact are involved.

Of course, distinguishing facts and opinions can be difficult. For more information on how courts distinguish between facts and opinions, see Opinion and Fair Comment Privileges, which discusses the issue in the context of defamation.

Note: This page covers information specific to Indiana. For general information concerning false light see the general False Light section of this guide. 

Indiana recognizes the tort of "false light." Plaintiffs can sue for false light in certain circumstances when false information about them has been spread to others. Because Indiana courts have not heard many cases raising false light, it is unclear when exactly someone can sue for being placed in a false light.

The case of Mavity v. Tyndall, 66 N.E.2d 755 (Ind. 1946) established false light in Indiana. In that case, the police took a mug shot of a man they were investigating for a crime. Charges against him were eventually dropped. However, the police maintained a photo of the man in their "rouges' gallery." The man sued and was able to have his photo removed because the police were casting him in a false light, implying that he was guilty of a crime.

Elements of a False Light Claim

The exact elements of a false light claim -- that is, what must be proven for a plaintiff to win -- have not been established in Indiana. See St. John v. Town of Ellettsville, 46 F. Supp. 2d 834, 851 (S.D. Ind. 1999).

Some limited aspects of what must be proven for a false light claim are clear. It is clear that the plaintiff must prove, at least, that you have said something false. See Near E. Side Cmty. Org. v. Hair, 555 N.E.2d 1324, 1335 (Ind. Ct. App. 1990). It is also clear that the false statement must identify the plaintiff. For instance, in Furno v. Citizens Ins. Co. of Am., 590 N.E.2d 1137 (Ind. Ct. App. 1992), a statement about chiropractors in general was held not to specifically identify a particular chiropractor who was upset by the statement.

Other states require plaintiffs suing for false light to prove that the statement was offensive and that the statement was disclosed to the public. It is not clear if Indiana will employ these requirements as well. Many states also require plaintiffs to prove that the defendant acted with "actual malice", at least for more famous or prominent public figures. Again, Indiana courts have not yet said the level of fault they will require.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but Indiana courts have not yet said what they are.

Note: This page covers information specific to Massachusetts. For general information concerning false light see the general False Light section of this guide. 

Massachusetts courts do not recognize a claim for false light.  See ELM Medical Lab, Inc. v. RKO Gen., Inc., 532 N.E.2d 675, 681 (Mass. 1989); Jones v. Taibbi, 512 N.E.2d 260, 270 (Mass. 1987); Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995).

Note: This page covers information specific to Michigan. For general information concerning false light see the general False Light section of this guide. 

Michigan recognizes the tort of "false light." Plaintiffs can sue for false light when false information is spread about them that is humiliating. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

False light in Michigan is similar to defamation. See, e.g., Morganroth v. Whitall, 411 N.W.2d 859, 863-64 (Mich. Ct. App. 1987). Both involve false statements that harm someone's public image. You can be sued for both defamation and false light for the same statements. However, a plaintiff can only obtain money for one or the other violation based on the same statements.

Elements of a False Light Claim

To win on a false light claim, a plaintiff must show that the defendant made statements that create unreasonable and highly objectionable publicity, attributing to the plaintiff characteristics, conduct or beliefs that are false, and that the defendant presented these statements to the public. Morganroth, 411 N.W.2d at 863-64. Each of these requirements is described in greater detail below:

Identification of Plaintiff

The statement in question must identify the plaintiff in particular. For example, criticizing all doctors will not allow any particular doctor to sue you.

Offensiveness

The statement must be "unreasonable and highly objectionable." Morganroth, 411 N.W.2d at 863-64 (quoting Restatement (Second) of Torts § 652E cmt. b). The material must be "highly offensive to a reasonable person." Early Detection Ctr., P.C. v. N.Y. Life Ins. Co., 403 N.W.2d 830, 835 (Mich. Ct. App. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.

Falsehood

A plaintiff must show that something false has been said about him or her. The falsehood could misrepresent the plaintiff's characteristics, conduct, or beliefs. If the publication is true, then the plaintiff cannot win. For instance, in Morganroth v. Whitall, a writer for the Detroit News published a story about a hairdresser, describing how she used the unusual technique of blowtorching her client's hair. 411 N.W.2d at 859-61. She sued and lost because the facts in the story describing her hairdressing method were true.

Public Disclosure

For a plaintiff to win, he or she must show that the defendant made the statement in question to the public in general or to a large number of people. Reed v. Ponton, 166 N.W.2d 629, 630 (Mich. Ct. App. Mich. 1968). For instance, the plaintiff in one case complained that being fired cast her in a false light, but she lost because she did not claim that the reasons for her firing had been publicized by her employer. Ledl v. Quik Pik Food Stores, Inc., 249 N.W.2d 529 (Mich. Ct. App. 1994).

Fault

A plaintiff must also show that the defendant was at fault when he or she caused the false implication. Michigan courts have not yet stated what level of fault is required. Most states require that the plaintiff prove the defendant acted with "actual malice", at least when the matter discussed is one of public concern or the plaintiff is an important or prominent public figure. Other states merely require that the defendant was "negligent" in publishing the statement in question. For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but Michigan courts have not yet said what they are.

Note: This page covers information specific to New Jersey. For general information concerning false light see the general False Light section of this guide. 

New Jersey recognizes the tort of "false light." Plaintiffs can sue for "false light" when false information is spread about them that is false and offensive. The specific things a plaintiff must prove are listed below under "Elements of a False Light Claim."

False light in New Jersey is similar to defamation. Both protect against the same wrongs -- offensive false statements. The key difference between defamation and false light is that they protect against different harms flowing from such statements. Defamation protects a person's public reputation, while false light protects a person's internal mental tranquility. See Romaine v. Kallinger, 537 A.2d 284, 290 (N.J. 1988)

Elements of a False Light Claim

To establish false light a plaintiff must prove that the defendant (1) made statements about the plaintiff (2) to the public that are (3) offensive and (4) false. Each of these requirements is described in greater detail below.

Identification of Plaintiff

The statement in question must identify the plaintiff in particular. For example, falsely criticizing all doctors will not allow any particular doctor to sue you.

Public Disclosure

For a plaintiff to win, he or she must show that the statement in question was publicized. While New Jersey courts require the false statement to be disclosed to the public, they have not ruled on what exactly that means. It is safe to say that publishing on the Internet for the whole world to see is public disclosure.

Offensiveness

The statement must be "highly offensive to a reasonable person." Romaine, 537 A.2d at 290 (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense.. For instance, in Salek v. Passaic Collegiate School, a high school yearbook featured a photo in its "Funny Pages" of a male and a female teacher, with a caption (falsely) implying that the teachers were in a romantic relationship. 605 A.2d 276 (N.J. Super. Ct. App. Div. 1992). One of the teachers sued, but the court held she could not recover because the yearbook caption was not offensive to a reasonable person.

Falsehood

In order to prove a false light claim, the plaintiff must show that the information was false. The falsehood could misrepresent the plaintiff's characteristics, conduct, or beliefs. If the publication is true, then the plaintiff cannot win.

Fault

A plaintiff must also show that the defendant was at fault when he or she caused the false implication. If the defendant is a public figure, then the plaintiff must show that the defendant acted with "actual malice." See Miele v. Rosenblum, 603 A.2d 43, 48 (N.J. Super. Ct. App. Div. 1991). New Jersey courts have not decided what level of fault must be shown when the plaintiff is a private figure. They could either require the plaintiff to show that the defendant acted with actual malice, as for public figures, or could require the plaintiff to show that the defendant acted "negligently." For more information on possible levels of fault, see the Actual Malice and Negligence section of this guide.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but New Jersey courts have not yet said what they are.

Note: This page covers information specific to New York. For general information concerning false light see the general False Light section of this guide.

The tort of "false light" is not recognized in New York; you cannot sue or be sued on such a claim. See, e.g., Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff'd, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993).

 

Note: This page covers information specific to North Carolina. For general information concerning false light see the general False Light section of this guide. 

The tort of "false light" is not recognized in North Carolina; you cannot sue or be sued on such a claim. See Renwick v. News & Observer, 312 S.E.2d 405 (N.C. 1984).

 

Note: This page covers information specific to Ohio. For general information concerning false light see the general False Light section of this guide. 

Ohio's Supreme Court recently recognized the tort of "false light" in June 2007. In that case, Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007), a woman, Lauri Weinfeld, opened up a facility for outdoor banquets and weddings next to the home of Robert and Katherine Welling and their children. The neighbors came into conflict, and eventually Weinfeld found a window in her banquet facility broken. She put up a number of posters offering a $500 reward for information about the incident at the workplace of Mr. Welling and at the workplaces and schools of the family's children.

The Wellings and Lauri Weinfeld sued each other on various claims, including a claim by the Wellings that Weinfeld had through the posters cast them in a false light. In response, the Ohio Supreme Court announced for the first time that it would recognize the tort of false light: "In Ohio, one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Welling, 866 N.E.2d 1051 (quoting Restatement (Second) of Torts § 652E).

Elements of a False Light Claim

Parsing the court's decision in Welling, there are several things a plaintiff prove to establish false light:

1. The defendant "gave publicity" to what he or she said about the plaintiff -- that is, the defendant communicated it to many people;
2. The statement placed the plaintiff before the public in a "false light" -- that is, the defendant communicated something false;
3. The statement was "highly offensive to a reasonable person"; and
4. The defendant was at fault and knew or was reckless to the falsehood of the statement.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses.

For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. Other defenses may be available, but Ohio courts have not yet said what they are.

Note: This page covers information specific to Pennsylvania. For general information concerning false light see the general False Light section of this guide.

Pennsylvania recognizes the tort of "false light." Plaintiffs can sue for false light when false information is spread about them that is offensive. The specific things a plaintiff must prove are listed below under Elements of a False Light Claim.

While false light in Pennsylvania is similar to defamation, there are several differences. First, statements need to be publicized more widely for false light than defamation. Second, defamation requires harm to reputation or other social consequences, while false light does not. Third, material must be offensive for false light, while it need not be for defamation.

Elements of a False Light Claim

To establish a false light claim, a plaintiff must show that the defendant (1) made statements about the plaintiff (2) to the public that are (3) offensive and (4) false. Each of these requirements is described in greater detail below.

Identification of Plaintiff

The statement in question must identify the plaintiff in particular. For example, falsely criticizing all doctors will not allow any particular doctor to sue you.

Public Disclosure

For a plaintiff to win, he or she must show that the defendant made the statement to the public. The statement must be made either to the public at large (e.g., over the Internet) or to so great a number of people that it is "substantially certain to become . . . public knowledge." Curran v. Children's Serv. Ctr. Inc., 578 A.2d 8, 12 (Pa. Super. Ct. 1990) (quoting Restatement (Second) of Torts § 652D comm. a). In Curran, the plaintiff lost because a "pink slip" he personally received was not sufficient public disclosure for a false light claim.

Offensiveness

The statement must be "highly offensive to a reasonable person." Larsen v. Philadelphia Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct. 1988) (quoting Restatement (Second) of Torts § 652E). In other words, it is not enough that the plaintiff is offended; it must be reasonable to take offense. For instance, in Parano v. O'Connor, a court held that a plaintiff could not reasonably be offended by a newspaper article describing him as "uncooperative" and "adversarial." 641 A.2d 607, 608 (Pa. Super. Ct. 1994).

Falsehood

A plaintiff must show that something false has been said about him or her. The falsehood could misrepresent the plaintiff's characteristics, conduct, or beliefs. If the publication is true, then the plaintiff cannot win.

Fault

A plaintiff must also show that the defendant was at fault when he or she caused the false implication. In Pennsylvania, the plaintiff must show that the defendant acted with "knowledge of" a statement's falsity or acted with "reckless disregard" of its falsity. Santillo v. Reedel, 634 A.2d 264 (Pa. Super. Ct. 1993). In other words, to be liable for false light, the defendant must make a statement he knows is false or must be very careless as to whether the statement is true of false.

Privileges and Defenses

If you are sued for false light, you may have several defenses that will protect you, even if the plaintiff has an otherwise winning case. See the section on Defamation Privileges and Defenses for a general discussion of potential defenses. For instance, opinions are constitutionally protected; a false light claim must be based on the implication of a false fact. There is also an important common law protection that may be protect you when you comment on issues of public concern:

Media Defendants

Under Pennsylvania law, the media is insulated from liability for false light when it reports on issues of public concern related to public officials. Neish v. Beaver Newspapers, Inc., 581 A.2d 619, 624-25 (Pa. Super. Ct. 1990). Courts deem public officials as having "relinquish[ed] . . . insulation of scrutiny of [their] public affairs." Id.

What kinds of media are protected? Neish concerned a reporter for a traditional newspaper. If you work in a non-traditional media setting, an important question is whether the media protection described above will protect you. Unfortunately, Pennsylvania courts have not yet said how far the protection for media defendants will extend.

Note: This page covers information specific to Texas. For general information concerning false light see the general False Light section of this guide. 

The tort of "false light" is not recognized in Texas; you cannot sue or be sued on such a claim. See Cain v. Hearst Corp., 878 S.W.2d 577, 579-80 (Tex. 1994).

 

Note: This page covers information specific to Virginia. For general information concerning false light see the general False Light section of this guide. 

The tort of "false light" is not recognized in Virginia; you cannot sue or be sued on such a claim. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (Va. 2000). 

Note: This page covers information specific to Washington. For general information concerning false light see the general False Light section of this guide.

Washington courts have not explicitly recognized the tort of "false light." However, unlike several other states, Washington has not explicitly rejected the tort of false light either. In one case, the Washington Supreme Court appeared skeptical about whether allowing false light claims would be a good idea due to its similarity to defamation. See Eastwood v. Cascade Broad. Co., 722 P.2d 1295, 1298-99 (Wash. 1986). 

Note: This page covers information specific to Arizona. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

A.R.S. § 12‑752 allows you to counter a SLAPP suit against you by filing a motion to dismiss. The statute also provides that the court shall grant the moving party costs and reasonable attorney fees, if the court grants the motion to dismiss.

Activities protected by the Arizona Anti SLAPP Statute

The Arizona anti-SLAPP statute applies to legal actions involving “a party’s exercise of the right of petition.” A.R.S. § 12‑751 defines “exercise of the right of petition” as

any written or oral statement that falls within the constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort or that is all of the following:

1. Made before or submitted to a legislative or executive body or other governmental proceeding.
2. Made in connection with an issue that is under consideration or review by a legislative or executive body or any other governmental proceeding.
3. Made for the purpose of influencing a governmental action, decision or result.

The statute further defines “governmental proceeding” to include proceedings by an official, officer, or body of the state, political subdivision of the state, or federal government. Id. The definition excludes judicial proceedings. Id.

If your statement does not fall within the definition of “exercise of the right of petition,” it will not be covered by the Arizona anti‑SLAPP statute. See Tennenbaum v. Arizona City Sanitary District, 799 F. Supp. 2d 1083 (D. Ariz. 2011) (holding that the Arizona anti‑SLAPP statute does not apply to a letter sent by legal counsel for the city Board of Directors or presentation at an open forum of the Board defending actions of the Board to the public because they were not part of a “recall effort” or “made before . . . a governmental proceeding” or “made for the purpose of influencing a governmental action, decision, or result”); Varela v. Perez, No. CV‑08‑2356‑PHX‑FJM, 2009 U.S. Dist. LEXIS 116027 (D. Ariz. Nov. 25, 2009) (holding that the Arizona anti‑SLAPP statute does not apply to “the filing of a criminal complaint with law enforcement”).

The statute specifically provides that it does not:

1. Affect, limit or preclude the right of the moving party to any remedy otherwise authorized by law.
2. Apply to an enforcement action that is brought in the name of this state or a political subdivision of this state.
3. Create any privileges or immunities or otherwise affect, limit or preclude any privileges or immunities authorized by law.
4. Limit or preclude a legislative or executive body or a public agency from enforcing the rules of procedure and rules of order of the body or agency.

A.R.S. § 12‑752(E).

How to use the Arizona Anti-SLAPP statute

The Arizona anti‑SLAPP statute gives you the ability to file a motion to dismiss within 90 days after service of the complaint or, in the court's discretion, at any later time on terms that the court deems proper. A.R.S. § 12‑752(C). (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a motion to dismiss under the anti-SLAPP statute.)

The statute provides that, "[w]hen possible," the court must give "calendar preference" to an action filed under the statute and that the court must conduct an expedited hearing after the motion is filed and notice of the motion has been served as provided by court rule. A.R.S. § 12‑752(A).

The court will grant the motion to dismiss unless the responding party shows that your exercise of the right of petition "did not contain any reasonable factual support or any arguable basis in law" and that your "acts caused actual compensable injury to the responding party." A.R.S. § 12‑752(B). "In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating facts on which the liability or defense is based." Id.

If you request it, the court will also make findings about "whether the lawsuit was brought to deter or prevent the moving party from exercising constitutional rights and is thereby brought for an improper purpose" such as to harass or delay or increase the cost of litigation. Id. If the court finds that the lawsuit was brought for these purposes, then the statute states that you are "encouraged" to pursue additional sanctions "as provided by court rule." Id.

What Happens If You Win A Motion To Dismiss Or Quash

If you prevail on your motion to dismiss, the statute provides that the court "shall" award you "costs and reasonable attorney fees, including those incurred for the motion." The statute states that "costs" means "all costs that are reasonably incurred in connection with a motion to dismiss pursuant to this section" including "filing fees, record preparation and document copying fees, documented time away from employment to confer with counsel or attend case related proceedings, expert witness fees, travel expenses and any other costs that the court deems appropriate."

However, if you do not prevail and the court finds that your motion to dismiss is "frivolous or solely intended to delay," the court "shall" award "costs and reasonable attorney fees to the prevailing party on the motion." In determining whether the motion to dismiss is frivolous, the court may consider whether the case involves novel issues of law. See Tennenbaum, 799 F. Supp. 2d at 1090.

If you succeed in fending off a SLAPP lawsuit in Arizona, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Arizona does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to California. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use California's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue." Cal. Civ. Proc. Code § 425.16. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.  In addition, if a party to a SLAPP suit seeks your personal identifying information, California law allows you to make a motion to quash the discovery order, request, or subpoena.

Activities Covered By The California Anti-SLAPP Statute

Not every unwelcome lawsuit is a SLAPP. In California, the term applies to lawsuits brought primarily to discourage speech about issues of public significance or public participation in government proceedings. To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an "act in furtherance of [your] right of petition or free speech under the United States or California Constitution in connection with a public issue." Although people often use terms like "free speech" and "petition the government" loosely in popular speech, the anti-SLAPP law gives this phrase a particular legal meaning, which includes four categories of activities:

1. any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
2. any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
3. any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
4. any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Cal. Civ. Proc. Code § 425.16(e)(1-4). As an online publisher, you are most likely to rely on the third category above, which applies to a written statement in a public forum on an issue of public interest.

Under California law, a publicly accessible website is considered a public forum. See Barrett v. Rosenthal, 146 P.3d 510, 514 n.4 (Cal. 2006). The website does not have to allow comments or other public participation, so long as it is publicly available over the Internet. See Wilbanks v. Wolk, 121 Cal. App. 4th 883, 897 (Cal. Ct. App. 2001).

Many different kinds of statements may relate to an issue of public interest. California courts look at factors such as whether the subject of the disputed statement was a person or entity in the public eye, whether the statement involved conduct that could affect large numbers of people beyond the direct participants, and whether the statement contributed to debate on a topic of widespread public interest. Certainly, statements educating the public about or taking a position on a controversial issue in local, state, national, or international politics would qualify. Some other examples include:

• Statements about the character of a public official, see Vogel v. Felice, 127 Cal. App. 4th 1006 (2005);
• Statements about the financial solvency of a large institution, such as a hospital, see Integrated Healthcare Holdings, Inc. v. Fitzgibbons, 140 Cal. App. 4th 515, 523 (2006);
• Statements about a celebrity, or a person voluntarily associating with a celebrity, see Ronson v. Lavandeira, BC 374174 (Cal. Super. Ct. Nov. 1, 2007);
• Statements about an ideological opponent in the context of debates about the Israeli-Palestinian conflict, see Neuwirth v. Silverstein, SC 094441 (Cal. Super. Ct. Nov. 27, 2007); and
• Statements about the governance of a homeowners association, see Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).

In contrast, California courts have found other statements to be unrelated to an issue of public interest, including:

• statements about the character of a person who is not in the public eye, see Dyer v. Childress, 147 Cal. App. 4th 1273, 1281 (2007); and
• statements about the performance of contractual obligations or other private interests, see Ericsson GE Mobile Communs. v. C.S.I. Telcoms. Eng’rs. 49 Cal. App. 4th 1591 (1996).

Although the anti-SLAPP statute is meant to prevent lawsuits from chilling speech and discouraging public participation, you do not need to show that the SLAPP actually discouraged you from participating or speaking out. Nor do you need to show that the plaintiff bringing the SLAPP intended to restrict your free speech.

Protections for Personal Identifying Information Sought in a SLAPP suit

In addition to providing a motion to strike, California law also allows a person whose identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash -- that is, to void or modify the subpoena seeking your personal identifying information so you do not have to provide that information. Cal. Civ. Pro. Code § 1987.1.

How To Use The California Anti-SLAPP Statute

The California anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.

One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a motion to strike, the clerk of the court will schedule a hearing on your motion within thirty days after filing. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

In ruling on a motion to strike, a court will first consider whether you have established that the lawsuit arises out of a protected speech or petition activity (discussed above). Assuming you can show this, the court will then require the plaintiff to introduce evidence supporting the essential elements of its legal claim. Because a true SLAPP is not meant to succeed in court, but only to intimidate and harass, a plaintiff bringing such a lawsuit will not be able to make this showing, and the court will dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to strike, and the lawsuit will move ahead like any ordinary case.

If the court denies your motion to strike, you are entitled to appeal the decision immediately.

In addition to creating the motion to strike, the statute also allows a person whose personal identifying information is sought in connection with a claim arising from act in exercise of anonymous free speech rights to file a motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information. 

When you make your motion to quash, the court "may" grant your request if it is "reasonably made." In reviewing your motion, the court will probably require the plaintiff to make a prima facie showing, meaning he or she must present evidence to support all of the elements of the underlying claim (or, at least, all of the elements within the plaintiff's control).  See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1171 fn. 12 (Cal. App. 6 Dist. 2008). If the plaintiff cannot make that showing, the court will probably quash the subpoena and keep your identity secret.

If you are served with a SLAPP in California, you can report it to the California Anti-SLAPP Project and request assistance. The California Anti-SLAPP Project also has two excellent guides on dealing with a SLAPP suit in California, Survival Guide for SLAPP Victims and Defending Against A SLAPP. In addition, the First Amendment Project has an excellent step-by-step guide to the legal process of defending against a SLAPP in California.

What Happens If You Win A Motion To Strike

If you prevail on a motion to strike under California's anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Cal. Civ. Proc. Code § 425.16(c).

Additionally, if you win your motion to strike and believe that you can show that the plaintiff filed the lawsuit in order to harass or silence you rather than to resolve a legitimate legal claim, then consider filing a "SLAPPback" suit against your opponent. A "SLAPPback" is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. See Cal. Civ. Proc. Code § 425.18 (setting out certain procedural rules for "SLAPPback" suits). Section 425.18 contemplates bringing a SLAPPback in a subsequent lawsuit after the original SLAPP has been dismissed, but you might be able to bring a SLAPPback as a counterclaim in the original lawsuit. You should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.

If your successful motion to quash arises out of a lawsuit filed in a California court, the judge has discretion to award expenses incurred in making the motion. The court will award fees if the plaintiff opposed your motion "in bad faith or without substantial justification," or if at least one part of the subpoena was "oppressive." Cal. Civ. Pro. Code § 1987.2(a). But note that if you lose your motion to quash, and the court decides that your motion was made in bad faith, you may have to pay the plaintiff's costs of opposing the motion.

If you successfully quash a California identity-seeking subpoena that relates to a lawsuit filed in another state, the court "shall" award all reasonably expenses incurred in making your motion - including attorneys' fees - if the following conditions are met:

• the subpoena was served on an Internet service provider or other Section 230 computer service provider;
• the underlying lawsuit arose from your exercise of free speech on the Internet; and
• the plaintiff failed to make his prima facie showing.

Cal. Civ. Pro. Code § 1987.2(b).

Note: This page covers information specific to Colorado. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

While Colorado has no dedicated anti-SLAPP statute, Colorado courts have developed procedures that may provide some relief if you believe you are facing a SLAPP suit. If the lawsuit against you is based on your exercise of your "First Amendment right to petition the government for redress of grievances," the Colorado court will subject the plaintiff's claims against you to elevated scrutiny, making it easier for you to get those claims dismissed. Protect Our Mountain Environment, Inc. v. The District Court In and For the County of Jefferson, 677 P.2d 1361, 1368 (Colo. 1984) (a.k.a. "POME"; the special motion is generally referred to as a "POME motion," after the name of this case). With some possible exceptions, you will not be able to recover your attorneys' fees or court costs after a successful POME motion.

Activities Covered By Colorado's POME Motion

The POME decision on its face covers a very narrow range of conduct. Specifically, it protects the First Amendment right to petition the government for relief of legitimate grievances without fear of retaliation. In POME, an environmental activism group opposed a proposed real-estate development. The group brought a case against both the developer and the county board that had approved the project. The trial court and subsequent appellate court both ruled against the environmental group. The developer then sued the environmental group, claiming that the group had abused the legal process by challenging the proposed development.

The Colorado Supreme Court, in its decision on the developer's lawsuit against the environmental group, ruled that the First Amendment right to petition requires protection against this kind of lawsuit. Thus, in Colorado, if someone sues you because you previously filed a legitimate (non-frivolous) lawsuit, or otherwise petitioned the government for action, a POME motion might help you get the new lawsuit dismissed.

Subsequent cases have helped to clarify what sorts of "petitioning" are protected by POME. For example, attending public hearings to oppose a construction project is protected. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Repeated lawsuits in a contentious divorce are also within POME's purview. In re Foster, 2011 WL 2139136 (Colo., May 23, 2011). However, the outer limits of POME's protections remain unclear.

A 1986 Colorado Supreme Court decision suggests that at least some other lawsuits (like some libel claims) may require POME scrutiny as well. Concerned Members of Intermountain Rural Elec. Ass'n v. District Court, County of Jefferson, 713 P.2d 923 (Col0. 1986). See also James H. Moore & Associates Realty v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994) (implying that POME may apply to other First Amendment rights). However, a May 2011 trial court ruling (which is not binding in other cases) states that POME only applies if you are being sued for "misuse or abuse of the administrative or judicial processes of the government."  It is therefore an open question as to whether POME would apply to defamation claims or lawsuits that do not alleged abuse of governmental process.

How To Use Colorado's POME Procedure

If you are sued over conduct (like a past lawsuit) that you believe may be protected by POME, you can file a motion to dismiss under C.R.C.P. 12(b)(5), raising the defense that your past conduct was protected by the First Amendment. At that point, the person suing you will have to satisfy POME's three-part test:

• That your past lawsuit, etc. was "devoid of reasonable factual support" or "lacked any cognizable basis in law";
• That your primary purpose was to "harass," or to "effectuate some other improper objective"; and
• That your past petitioning activity "had the capacity to adversely affect a legal interest" of the person now suing you.

If the person suing you cannot satisfy all three parts of the test, the case against you will be dismissed. In the hearing on your POME motion, both sides can present all relevant materials and information.

What Happens If You Win A POME Motion

Generally, you will NOT eligible for an award of attorneys' fees if you win a POME motion. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859 (Colo. 2004). Colorado does have a statute through which a defendant can receive costs and fees, but only if the lawsuit is dismissed in response to a standard motion to dismiss under CRCP 12(b). For this reason, you may wish to pursue other defenses before turning to POME; if you can win a motion to dismiss without relying on POME, you may be able to recover your costs and fees. See CRSA § 13-17-201.¹

SLAPP-ing back

If you are facing a SLAPP-suit that does not fall within POME's protections, you may consider filing an abuse of process claim in response. Such a claim would require you to show

• An ulterior purpose for the lawsuit (such as, silencing your First Amendment rights),
• Willful action that is improper "in the regular course of the proceedings," and
• Actual damages.

See James H. Moore & Associates Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 373 (Colo. App. 1994). Remember that pursuing any legal claim can be a long, expensive process. Note also that your abuse of process claim would itself be subject to POME's standard.

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¹ You might be eligible for a potential award of attorneys' fees following a successful POME motion if neither you nor the plaintiff have presented evidence to the court beyond what is included in the plaintiff's complaint.  In this situation, the statute providing for an award of fees and costs following a successful Rule 12(b) motion may apply.  However, because you will be unable to control the scope of the evidence presented by the plaintiff in response to a POME motion, it is unlikely that this situation will occur.

Note: This page covers information specific to Florida. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

Florida has two narrow anti-SLAPP statutes, but neither is likely to protect bloggers and non-traditional journalists engaging in online publishing activities. Fla. Stat. § 768.295 protects against SLAPPs brought by government entities in retaliation for exercising one's right to petition the government. Fla. Stat. § 720.304 protects a homeowner's right to petition the government when acting to "address matters concerning [his or her] homeowners' association." It applies to SLAPPs brought by individuals, business associations, and government entities.

Activities Covered By The Florida Anti-SLAPP Statutes

Fla. Stat. § 768.295 applies to SLAPPs brought by the government in response to the exercise of "the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities" of Florida.

Fla. Stat. § 720.304 (4) applies only to homeowners in a homeowners' association. It protects a homeowner's exercise of "the right to instruct his or her representatives or the right to petition for redress of grievances before the various governmental entities" of Florida. The statute, which applies to SLAPPs brought by individuals, business associations, and government entities, further explains that it is aimed at protecting against lawsuits arising out of a homeowner's "appearance and presentation before a governmental entity on matters related to the homeowners' association."

The CMLP has not identified any relevant case law concerning how either of these statutes apply to online speech activities. Based on the language of the statute, however, it seems unlikely that either one would protect online activity that occurs outside of official government proceedings. On the other hand, these statutes might protect you if you made statements on a government-operated forum, or if you used your online platform to call on the government to address an issue of public concern (or, in the case of the latter statute, an issue related to a homeowners' association).

How To Use The Florida Anti-SLAPP Statute

If you are served with a complaint that you believe to be a SLAPP (as described in the section above), you should seek legal assistance immediately. Under Florida's anti-SLAPP laws, you can file a motion to dismiss or a motion for summary judgment under section 768.295 (5) in the case of a government SLAPP or section 720.304 (4)(c) in the case of a homeowner-related SLAPP. In either situation, after the party suing you has filed its response, the court will hear your motion "at the earliest possible time."

What Happens If You Win Your Motion

If you prevail on a motion to dismiss or a motion for summary judgment under the anti-SLAPP statutes, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. In addition, the court may award you any damages sustained as a result of the lawsuit. Further, if the court rules for you under the homeowner anti-SLAPP law, it may award you treble damages (i.e., 3X your actual damages).

If you succeed in fending off a SLAPP in Florida, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Florida does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Georgia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use Georgia's anti-SLAPP law to counter a SLAPP filed against you, but only in limited situations. Ga. Code Ann., § 9-11-11.1 allows a defendant to move to dismiss a SLAPP, provided that the exercise of free speech that prompted the lawsuit is about "an issue under consideration or review by a governmental body." If the court grants your anti-SLAPP motion, you may recover expenses and attorneys' fees from the SLAPP filer.

Activities Covered By The Georgia Anti-SLAPP Statute

To challenge a lawsuit as a SLAPP in Georgia, you need to show that the plaintiff is suing you for an act "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern." Ga. Code Ann., § 9-11-11.1(b). The statute further defines this as

any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

Ga. Code Ann., § 9-11-11.1(c). This definition limits your protection under the anti-SLAPP statute to (1) statements made in an official government proceeding, (2) statements relating to an issue currently under consideration or review in an official government proceeding, and (3) statements calling for such official review or consideration.

Categories 2 and 3 are the most important for online publishers. It is important to note what is not included here: If someone sues you for making statements on your website or blog about a topic or issue of ordinary public interest that is not under government consideration or review, and you are not calling for such consideration or review, then you are not entitled to bring an anti-SLAPP motion to dismiss under section 9-11-11.1.

For example, in Berryhill v. Georgia Community Support & Solutions, 281 Ga. 439 (2006), Shirley Berryhill allegedly made statements in web postings and emails complaining about the poor treatment and care provided to her handicapped son by a healthcare facility. The Georgia Supreme Court held that, although Ms. Berryhill's statements pertained to a matter of public concern, she could not invoke the anti-SLAPP statute because her statements did not relate to an existing official proceeding or request the initiation of an official investigation or proceeding.

How To Use The Georgia Anti-SLAPP Statute

When a plaintiff files a lawsuit against someone for an act which reasonably could be viewed as "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern" (as defined above), the anti-SLAPP law requires the plaintiff and his or her attorney to file written verifications under oath certifying that the claim is well grounded in fact and is warranted by existing law or a good faith argument for the modification of existing law. Ga. Code Ann., § 9-11-11.1(c).

If you are sued, and you believe that your speech fits the criteria outlined in the section above, you should bring this verification requirement to the attention of the plaintiff or his or her attorney. If the plaintiff fails to make the required verifications within ten days of being notified, the court must dismiss the case.

If the plaintiff submits the required verifications, you can file a motion to dismiss the case for improper verification in violation of Ga. Code Ann., § 9-11-11.1(b). Once you have made the motion, the court must hear it within thirty days, barring court emergencies. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

In deciding the motion, the court will first consider whether your speech fits the criteria described in the section above. If it finds that you are eligible to make the motion, the court will then examine the verifications and documents submitted by the plaintiff. After this review, if the court finds that the plaintiff or attorney either did not believe that the legal claim was legitimate or brought the lawsuit against you for an improper purpose, then the court will grant your motion to dismiss. Alternatively, the court will grant your motion to dismiss if the judge finds that your statements were made in good faith. See Atlanta Humane Society v. Harkins 278 Ga. 451, 455-56 (Ga. 2004). If the plaintiff's case is strong, however, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.

When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

What Happens If You Win A Motion To Strike or Dismiss

If you prevail on a motion to dismiss under Georgia's anti-SLAPP law, the court will dismiss the lawsuit against you, and you can ask the court to impose sanctions on the other side. These sanctions may include your expenses in defending against the suit, including reasonable attorneys' fees.

In addition, if you succeed in fending off a SLAPP in Georgia, you may be able to bring a claim for malicious prosecution or abuse of process against the SLAPP filer. While Georgia does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Illinois. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use Illinois's anti-SLAPP statute, known as the Citizen Participation Act (CPA), to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike or dismiss a complaint filed against you based on "[a]cts in furtherance of the constitutional rights to petition, speech, association, and participation in government." If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

Activities Covered By The Illinois Anti-SLAPP Statute

To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for "any act or acts in furtherance of [your] rights of petition, speech, association, or to otherwise participate in government." 735 Ill. Comp. Stat. 110/15 (scroll down). Such actions are "immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome."

The Illinois Supreme Court has interpreted the CPA narrowly. According to the 2012 case Sandholm v. Kuecker, there are two scenarios in which the CPA does not provide relief:

1. If the defendant's conduct was "not genuinely aimed at procuring favorable government action, result, or outcome," the CPA does not apply. 735 Ill. Comp. Stat. 110/15. This test focuses on the defendant's conduct. 
2. The second test looks at the plaintiff's intent in bringing the lawsuit. According to the Illinois court in Sandholm, "if the plaintiff's intent in bringing the suit is to recover damages for alleged defamation [or other intentional torts] and not to stifle or chill defendants' rights of petition, speech, association, or participation in government," the CPA does not apply.  Sandholm, at ¶ 42. Later in the decision, the Illinois court summarized its ruling: "If a plaintiff's complaint genuinely seeks redress for damages from defamation or other intentional torts and, thus, does not constitute a SLAPP . . . plaintiff's suit would not be subject to dismissal under the [CPA]." Id. at ¶ 53.

Sandholm did not explicitly clarify the full extent of defendants' conduct that falls within the CPA: There remains some uncertainty about how broadly to construe the "petition, speech, association, or to otherwise participate in government" language. There is a plausible argument that the CPA covers a broad category of speech that seeks some kind of government action. The defendants in Sandholm had mounted a public campaign against a local high school coach, including a website built by the defendants as well as comments left on third-party news and commentary web sites. The court assumed that, but for the plaintiff's-intent test, the defendants' conduct would have qualified under the statute.

The CMLP has not identified any further Illinois case law interpreting this language or applying it to online publishing activities. If you know about any relevant cases, please contact us.

How To Use The Illinois Anti-SLAPP Statute

The CPA gives you the ability to file a motion to strike or dismiss a complaint brought against you for exercise of the aforementioned rights. The court must hear the motion within ninety days of your filing it, and it must grant the motion unless it finds that the SLAPP filer has produced "clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act." 735 Ill. Comp. Stat. 110/20 (scroll down).

While the motion is pending, your opponent generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

The CPA also allows a party who believes it has been the subject of a SLAPP to get a speedy decision on its motion to dismiss and to file an expedited appeal if the court denies the motion.  Section 20(a) of the CPA states:

On the filing of any motion as described in Section 15, a hearing and decision on the motion must occur within 90 days after notice of the motion is given to the respondent. An appellate court shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's failure to rule on that motion within 90 days after that trial court order or failure to rule. 

When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

What Happens If You Win A Motion To Dismiss

If you prevail on a motion to strike or dismiss under the CPA, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs incurred in connection with the motion. See 735 Ill. Comp. Stat. 110/25 (scroll down).

If you succeed in fending off a SLAPP in Illinois, you may be able to bring a claim for malicious prosecution against the SLAPP filer. While Illinois does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. Previously, an Illinois appeals court held that bringing a SLAPP does not amount to malicious prosecution under Illinois law, see Levin v. King, 648 N.E.2d 1108, 1113 (Ill. App. Ct. 1995), but that ruling occurred before the Illinois legislature enacted the CPA. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Indiana. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use Indiana's anti-SLAPP statute to counter a SLAPP suit filed against you. The statute allows you to file a special motion to dismiss a complaint filed against you based on an "act in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-1(a). If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

Activities Covered By The Indiana Anti-SLAPP Statute

To challenge a lawsuit as a SLAPP, you need to show that the plaintiff is suing you for an act or omission "in furtherance of [your] right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest." Ind. Code § 34-7-7-5 (1). You also need to establish that your action was "taken in good faith and with a reasonable basis in law and fact." Ind. Code § 34-7-7-5 (2).

Indiana courts have interpreted the "right of petition or free speech . . . in connection with a public issue or an issue of public interest" to include media coverage of newsworthy events. "Newsworthiness" is a flexible concept, and it is sometimes difficult to predict what topics a court will deem to fit the definition. But, in all likelihood, news reports and even informal posts about current events and significant economic, political, and social issues would fit the bill.

In contrast, statements and postings of a more personal character are less likely to be "in connection with a public issue or an issue of public interest." For example, in Hamilton v. Prewett, 860 N.E.2d 1234, 1247 (Ind. App. 2007), an Indiana appeals court held that the anti-SLAPP law did not protect a website operator who parodied a local business man because the website did not address a "public issue."

To prevail on a motion to dismiss under the anti-SLAPP statute, you will also need to show that your action was "lawful." See Ind. Code § 34-7-7-9 (d). Therefore, if your speech constitutes defamation, extortion, or some other unlawful act, the anti-SLAPP law does not protect you.

How To Use The Indiana Anti-SLAPP Statute

The Indiana anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition or free speech (as defined above). The court must hear and rule on the motion within 180 days of your filing it.

When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

When filing a motion to dismiss, you must specify the public issue that prompted your speech or petition activity. See Ind. Code § 34-7-7-9(b). You also need to provide evidence establishing that your act was taken in good faith and with a reasonable basis in law and fact. After the motion is filed, the court will establish a schedule for taking discovery relevant to the motion -- that is, exchanging documents, taking deposition, and answering written questions on the issue of whether your action was lawfully taken in furtherance of your right of petition or speech.

What Happens If You Win A Motion To Dismiss

If you prevail on a motion to strike or dismiss under the Indiana anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. See Ind. Code § 34-7-7-7.

If you succeed in fending off a SLAPP-type lawsuit in Indiana, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Indiana does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Massachusetts. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use Massachusetts' anti-SLAPP statute, found at M.G.L. c. 231, § 59H, to counter a SLAPP suit filed against you, at least under some circumstances. The statute allows you to file a special motion to dismiss a complaint filed against you based on your "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." The statute, by its terms, does not apply to speech activity that is not connected to petitioning the government, but Massachusetts courts have interpreted petitioning activity to include some online publishing activities. If a court grants a motion to dismiss under the anti-SLAPP statute, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

Activities Covered By The Massachusetts Anti-SLAPP Statute

To challenge a lawsuit as a SLAPP in Massachusetts, you need to show that the plaintiff is suing you for "exercise of [your] right of petition under the constitution of the United States or of the commonwealth." M.G.L. c. 231, § 59H. The statute defines "a party’s exercise of its right of petition” to include a written or oral statement that is:

• "made before or submitted to" a government body;
• "made in connection with an issue under consideration or review" by a government body;
• "likely to encourage consideration or review of an issue" by a government body; 
• "likely to enlist public participation in an effort to effect such consideration" by a government body; or
• "any other statement falling within constitutional protection of the right to petition government."

To make use of Massachusetts' anti-SLAPP motion, you will need to show that your speech activity fits into one of these categories. You will also need to prove that your exercise of the right of petition was the the sole cause of the plaintiff's lawsuit against you. If the plaintiff's lawsuit involves other issues, such as contractual obligations, you likely will not succeed on an anti-SLAPP motion. See Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935, 942 (Mass. 1998).

Be aware that the statute does not protect "free speech" in the abstract, but only statements that fit within the five categories outlined above. Nonetheless, a good deal of online speech could fit into these categories, especially if aimed at influencing government policy or building support for a campaign to influence government policy.

However, an important Massachusetts Supreme Judicial Court case suggests that reporters who publish objective, factual news accounts won't qualify for the protections of the anti-SLAPP law, even if those accounts relate to matters and issues under review by government bodies and are aimed at enlisting public participation around those issues. See Fustolo v. Hollander, SJC-10485 (Mass. Feb. 1, 2010). In Fustolo, a real estate developer sued a reporter for a community newspaper for defamation over articles reporting on his properties and community opposition to his development plans. The complaint alleged that the articles caused "[w]idespread opposition . . . in connection with [his] development plans and variance petition" and "[a]s a direct and proximate result, [h]e was compelled to withdraw the application for variances prior to a hearing scheduled to take place before the Boston Board of Appeal on July 25, 2006.

Despite this connection with government scrutiny of the plaintiff's development plans, the Massachusetts SJC held that the articles did not qualify as "petitioning activity" on the reporter's "own behalf." Among other factors, the court noted that the articles in question were objective and did not reflect the reporter's personal opinions. It also determined that the reporter's subjective personal interest in the development issues she wrote about was not relevant to determining whether the articles themselves were petitioning activity.  The court noted, however, that merely receiving compensation for her work did not deprive the reporter of the protections of the Massachusetts anti-SLAPP law.

Another potentially important case for website operators is MacDonald v. Paton, 782 N.E.2d 1089 (Mass. App. Ct. 2003).  In this case, Elsa Paton operated a website that reported on local affairs in Athol, Massachusetts and the surrounding community. The site functioned as an interactive public forum on issues relating to Athol town governance, including education funding and municipal use of tax dollars. It included information on education reform, a citizen letters section, cartoons, quotes, a link inviting public participation by email, and satirical articles. Mark MacDonald, a former Athol selectman, sued Paton and others after a local newspaper published an article referring to him as a "Gestapo agent," and Paton published a "dictionary entry" for the term "Nazi" that referenced MacDonald. A Massachusetts appeals court held that Paton's publication of the statement was "petitioning activity" within the meaning of the anti-SLAPP statue because "the Web site served as a technological version of a meeting of citizens on the Town Green, a space where concerned individuals could come together to share information, express political opinions, and rally on town issues of concern to the community." 

The Supreme Judicial Court's decision in Fustolo v. Hollander, discussed above, casts substantial doubt on the continued validity of MacDonald v. Paton, at least to the extent it suggested that providing a forum for others to speak could be "petitioning activity" on one's "own behalf" under the Massachusetts anti-SLAPP law.

If you are sued in federal court in Massachusetts, you might not be able to invoke the anti-SLAPP statute. Some federal courts in Massachusetts have held that the anti-SLAPP statute is a procedural rule that is inapplicable in federal court. See, e.g., Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312, 316 (D. Mass. 2003). Other courts might disagree, however.

How To Use The Massachusetts Anti-SLAPP Statute

The Massachusetts anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you for exercise of your right of petition.

If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to dismiss under the anti-SLAPP statute within sixty days of being served with the complaint. A court may allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.

One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. When you file a special motion to dismiss, the court must hear and rule on the motion "as expeditiously as possible." M.G.L. c. 231, § 59H. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.

In ruling on a motion to dismiss, a court will first consider whether you have established that the lawsuit arises solely out of your right to petition (defined above). Assuming you can show this, the court will then require the plaintiff to introduce evidence showing that the "exercise of [your] right to petition was devoid of any reasonable factual support or any arguable basis in law" and that your acts caused actual injury. M.G.L. c. 231, § 59H. If the plaintiff cannot show this, the court must grant your motion to dismiss. On the other hand, if the plaintiff can make this showing, the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.

What Happens If You Win A Motion To Dismiss

If you prevail on a motion to dismiss under the Massachusetts anti-SLAPP statute, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. M.G.L. c. 231, § 59H.

If you succeed in fending off a SLAPP in Massachusetts, you may be able to bring a claim of malicious prosecution against the SLAPP filer. While Massachusetts does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.

If you file a special motion to dismiss under Massachusetts' anti-SLAPP law and the court denies the motion, you have an immediate right to appeal the denial.  See Fabre v. Walton, 436 Mass. 517 (2002).

Note: This page covers information specific to Michigan. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

On August 19, 2010, the Michigan House of Representatives passed House Bill No. 5036 which provides that if a defendant in a lawsuit makes a motion to dismiss, the court shall dismiss the case if either of the following applies:

a. The action was based on the defendant's exercise of constitutionally protected right to petition the government and the communication was aimed at achieving some governmental or electoral action, result, or outcome, or

b. The action is based on the defendant's exercise of the constitutional right to free speech.

The plaintiff can avoid dismissal of the complaint if they can make a prima facie case that the purpose of the lawsuit is not to harass or intimidate or interfere with free speech and one or both of the following:

a. The defendant made a statement that was false with reckless disregard for the truth or knowing it was false, or

b. The defendant revealed something in the communication that they were prohibited by law from revealing. 

As of February 2011, it does not appear that the state senate had passed the bill or that it has otherwise become law in Michigan.  If you have information about the legislation, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

If you succeed in fending off a SLAPP-type lawsuit in Michigan,you may be able to bring a claim of malicious prosecution against the original plaintiff. While Michigan does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Nevada. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

Nevada's Anti-SLAPP statute is codified as Nev. Rev. Stat. 41.635-70. There is little case law interpreting it. However, Nevada courts have held that Nevada's Anti-SLAPP statute should be read similarly to California's, upon which it is based.

Activities Covered By The Nevada Anti-SLAPP Statute

According to the language of Nevada's Anti-SLAPP statute, a defendant may file a special motion to dismiss "if an action is brought against a person based upon a good faith communication in furtherance of the right to petition." Nev. Rev. Stat. 41.660(1). One case, John v. Douglas County School District, 219 P.3d 1276 (2009), found that the Nevada statute should be construed just as the California statute, upon which it was based. However, in Metabolic Research, Inc. v. Ferrell, D.C. No. 2:09-cv-02453 (D. Nev. 2009), the U.S. District Court for Nevada determined that the statute only protects those citizens who are engaging in the right to petition-and only when petitioning a government official.

According to John v. Douglas County School District, Nevada's anti-SLAPP statute bars claims from people who attempt to abuse other citizen's rights who attempt to petition the government and allows for claims against citizens who do not petition the government in good faith. The purpose is to prevent citizens from being the subject of costly litigation in an attempt to abridge their right to free speech under both the Nevada and U.S. Constitutions. John, 219 P.3d at 1282. A "good faith communication" includes:

1. Communication that is aimed at procuring any governmental or electoral action, result or outcome;
2. Communication of information or a complaint to a legislator, officer or employee of the Federal government, this state or a political subdivision of Nevada, regarding a matter reasonably of concern to the respective governmental entity; or a
3. Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law, which is truthful or is made without knowledge of its falsehood.

Nev. R. Stat. 41.637.

The types of suits that have been successfully dismissed under Nevada's Anti-SLAPP statute are:

• Statements by public utility board members who discussed the viability of a contract: Rebel Communications, LLC v. Virgin Valley Water Dist., No. 2:10-CV-0513-LRH-PAL (D. Nev. Mar. 20, 2012).
• State litigation, an advisory opinion from the Financial Institutions Division, and a complaint filed with the Financial Institutions Division: Nevada Association Services, Inc. v. Premsrirut, No. A-11-637300-C, 2011 WL 7803899 (Nev. Dist. Ct. Aug. 24, 2011).
• A complaint made about an employee of a political subdivision (a school district in Nevada), and an article published in a school newspaper: Archey v. Nelson, Case No. 35671, 2010 WL 3711513 (Nev. Dist. Ct. Aug. 10, 2010).

How To Use The Nevada Anti-SLAPP Statute

If a SLAPP suit is filed against you, you may request a special motion to dismiss the complaint. Additionally, the attorney general or chief legal officer of the political subdivision of the state may defend the person against whom the suit has been filed. If you are served with what you believe to be a SLAPP suit, you should seek legal assistance immediately in order to maneuver the complicated legal process and to avoid missing critical deadlines. The special motion to dismiss must be filed within sixty (60) days of service of the complaint.

Once filed, the special motion to dismiss is considered at the summary judgment standard, and all discovery will be stayed. A judge will rule on the motion within 30 days. However, if the motion is denied, you do not have the ability to file for an interlocutory appeal. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir. 2012).

What Happens If You Win A Motion To Dismiss

If you are successful, the court will award reasonable costs and attorney's fees, unless the Attorney General, or the chief legal officer or the attorney of a political subdivision, provided the defense. You may also bring a separate action to recover compensatory damages, punitive damages, and attorney's fees and costs of bringing the separate action. Nev. R. Stat. 41.670.

It is important to note that Nevada's Anti-SLAPP statute is a "free from judgment" statute, not a "free from litigation" statute. The Ninth Circuit recently interpreted the statute in a similar way as California's statute, stating that those who prevail on an anti-SLAPP motion are immune from civil liability, but are not immune from a lawsuit. Metabolic Research, 693 F.3d at 802. Those defendants facing litigation can request fees and costs at the conclusion of the case. Id.

The Citizen Media Law Project would like to thank the Randazza Legal Group for preparing this section. The contents of this page should not be considered to be legal advice.

Note: This page covers information specific to New Jersey. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

New Jersey does not have an anti-SLAPP statute. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

Although New Jersey has no anti-SLAPP statute, New Jersey courts have shown concern about the impact of SLAPPs. As a result, they have allowed a defendant who successfully defeats a SLAPP-type suit to seek damages from the SLAPP filer on a claim of malicious use of process, akin to California's "SLAPPback" claim. Thus, if you successfully fend off a SLAPP-type suit in New Jersey, you may want to consider a malicious use of process claim. If you are interested in this route, you should consult an attorney to see whether such a claim may be viable in your case.

How to Make a Malicious Use of Process Claim in New Jersey

New Jersey's malicious use of process claim consists of four elements that you must prove:

• The SLAPP filer brought a claim against you without probable cause;
• The SLAPP filer acted with malice;
• The SLAPP suit was resolved in your favor; and
• You suffered a "special grievance."

You could establish the first and third element by showing that you succeeded in getting a SLAPP-type suit dismissed, assuming that the court indicated in the process that the SLAPP filer's claim was lacking legal and/or factual bases. You could prove malice by showing that the SLAPP filer sued you in retaliation for your exercise of your right of petition or free speech. See LoBiondo v. Schwartz, 323 733 A.2d 516, 534 (N.J. Super. Ct. App. Div. 1999). Lastly, New Jersey courts have ruled that being SLAPPed constitutes a "special grievance." See Baglini v. Lauletta, 768 A.2d 825, 836-37 (N.J. Super. Ct. App. Div. 2001); LoBiondo, 733 A.2d at 534.

New Jersey courts have not yet applied the malicious use of process claim to SLAPPs brought against bloggers or non-traditional journalists. Given the language the courts have used in describing the threat of SLAPPs to citizens' rights of petition and free speech, however, it seems entirely possible that the courts would be willing to extend the claim to these types of SLAPPs.

Note: This page covers information specific to New York. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

New York's anti-SLAPP laws, found at N.Y. Civ. Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211(g), 3212(h), offer protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body (like zoning permits) over efforts of the defendant to report on, comment on, rule on, challenge, or oppose such application or permission. The statute does not protect "free speech" in the abstract; it only protects bloggers, non-traditional journalists, and other online publishers when they address this narrow class of issues (i.e., the granting or denial of a public permit or application).

Activities Covered By The New York Anti-SLAPP Statute

To use New York's anti-SLAPP law, you must show two things. First, you must show that the plaintiff suing you is a "public applicant or permittee." Second, you must show that the plantiff's claim against you is an "action involving public petition and participation."

The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.

The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.

How To Use The New York Anti-SLAPP Statute

The New York anti-SLAPP statute gives you the ability to file a motion to dismiss a complaint brought against you by a public applicant or permittee over your efforts to report on, comment on, challenge, or oppose an application to the government.

If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may be able to recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

In ruling on a motion to dismiss under the anti-SLAPP laws, a New York court will determine whether the plaintiff is a "public applicant or permittee" and whether the lawsuit is an "action involving public petition and participation," as described above. If you can establish these two things, then the court will require the plaintiff to demonstrate that its lawsuit "has a substantial basis in law." If the plaintiff fails to do so, then the court will grant your motion and dismiss the case. On the other hand, if the plaintiff's case is strong, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.

Note that, unlike in many states, New York's anti-SLAPP motion does not halt discovery (i.e., fact gathering for trial). Thus, you may incur additional litigation expenses while the court hears and decides your motion.

What Happens If You Win A Motion To Dismiss

If you prevail on a motion to dismiss under the New York anti-SLAPP law, the court may award you one or more of the following kinds of damages: costs and attorneys' fees, other compensatory damages, and punitive damages. To receive costs and attorneys' fees, you must show that the plaintiff's lawsuit against you lacked a basis in fact and law. To get compensatory damages (i.e., damages that compensate you for any other harm you suffered as a result of the SLAPP), you must also show that the plaintiff was maliciously attempting to impair your right to free speech or petition. Further, if you can show that if that the attempt to impair your rights was the only reason the plaintiff sued you, you may be entitled to punitive damages.

Note that even if you are able to establish that you meet the requirements for any or all of the types of damages listed above, the court does not have to award those damages. All anti-SLAPP damages, including costs and attorneys' fees, are awarded at the court's discretion under New York law.

Note: This page covers information specific to North Carolina. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in North Carolina. If you know about an anti-SLAPP law in North Carolina, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

If you succeed in fending off a SLAPP-type lawsuit in North Carolina, you may be able to bring a claim of malicious prosecution against the original plaintiff. While North Carolina does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Ohio. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Ohio. If you know about an anti-SLAPP law in Ohio, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

If you succeed in fending off a SLAPP-type lawsuit in Ohio, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Ohio does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Pennsylvania. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

Pennsylvania has a narrow anti-SLAPP statute, found at 27 Pa. Cons. Stat. §§ 7707, 8301-05, that only applies to those petitioning the government over environmental issues. While the statute does not protect "free speech" in the abstract, bloggers and non-traditional journalists who address environmental issues may be able to take advantage of it. The statute provides for a special motion and hearing to establish entitlement to immunity. If a court rules in your favor on this motion, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.

Activities Covered By The Pennsylvania Anti-SLAPP Statute

To challenge a lawsuit as a SLAPP in Pennsylvania, you need to show that the plaintiff is suing you over an "an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation." The statement must also be "aimed at procuring favorable governmental action."

Pennsylvania courts have interpreted this language to encompass both direct communications with the government and statements to third parties that are ultimately aimed at procuring favorable government action on an environmental issue. Thus, statements calling government or public attention to any alleged environmental violation or seeking to influence the government in its consideration or review of an environmental issue are protected. Some examples of protected communications made to non-government actors include: "a letter to the editor of a local newspaper expressing concern about the possibility of contamination at a proposed development, a statement made to a newspaper reporter about the possibility of contamination at a proposed development, or a signboard which protests the development of a wetland." Penllyn Greene Associates, L.P. v. Clouser, 890 A.2d 424, 433 n.11 (Pa. Cmmw. Ct. 2005).

There are, however, exceptions to this immunity, spelled out in 27 Pa. Cons. Stat. § 8302 (b). You are not entitled to immunity if:

• your statements were "knowingly false, deliberately misleading or made with malicious and reckless disregard for the truth or falsity";
• your statements were "made for the sole purpose of interfering with existing or proposed business relationships"; or
• your statements are "later determined to be a wrongful use of process or an abuse of process."

How To Use The Pennsylvania Anti-SLAPP Statute

The Pennsylvania anti-SLAPP statute gives you the ability to file a special motion requesting a determination of immunity under the Act. After you file the motion, the court must hold a hearing to make this determination.

At the hearing, the court will inquire into whether the lawsuit is based on "a communication to a government agency relating to enforcement or implementation of an environmental law or regulation" (defined above). Assuming you can show this, the court will require the plaintiff to introduce evidence showing that your statements fall into one of the three exceptions outlined above. If the plaintiff cannot do this, the court will dismiss the lawsuit against you. On the other hand, if the plaintiff's case is strong, the court will deny your motion. If the court denies your motion, you may appeal the judge's ruling immediately, and the plaintiff will not be able to engage in "discovery" (i.e., fact gathering for trial) until after the appeals court decides the appeal.

When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.

What Happens If You Win Your Motion

If you prevail on your motion under the Pennsylvania anti-SLAPP statue, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. If you are only partially successful, the court may award you either full or partial fees and costs, at its discretion. See 27 Pa. Cons. Stat. § 7707.

If you succeed in fending off a SLAPP in Pennsylvania, you may be able to bring a claim of malicious use of civil process against the SLAPP filer. While Pennsylvania does not explicitly recognize a "SLAPPback" claim, the elements of this claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Texas. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

The Texas Citizens Participation Act, H.B. No. 2973, allows you to counter a SLAPP suit against you based on your statements in exercise of your right of free speech, petition, or association. The statute provides for a special motion to dismiss, and allows (with some exceptions) for a stay of discovery proceedings while your motion is being considered. If your motion to dismiss is successful, the court will award you attorneys' fees, court costs, and possibly punitive damages against the party that filed the lawsuit.

The statute allows for dismissal of suits based on any type of communication, in any medium, that is: related to a "matter of public concern"; or pertaining to or in connection with any governmental proceeding or issue being considered by any governmental branch; or between individuals “who join together to collectively express, promote, pursue, or defend common interests."

Activities Protected By The Texas Anti-SLAPP Statute

To challenge a lawsuit under the Citizens Participation Act, you must show that it is based on your act or acts of "communication" (defined as the "making or submitting" of any "statement or document in any form or medium") in connection with your rights of association, petition, or free speech. The statute broadly defines these rights:

• (a) "Right of association" refers to people collectively "express[ing], promot[ing], pursu[ing], or defend[ing] common interests."
• (b) "Right of free speech" refers to communications related to "a matter of public concern."
• (c) "Right to petition" refers to a wide range of activities relating to governmental proceedings or issues being considered by governmental bodies.

Although dependent on your subject matter, the right of free speech is the section of the statute that will most likely apply to statements made online. The statute defines a "matter of public concern" as as issue related to health or safety; environmental, economic, or community well-being; the government; a public figure or official; or a good, product or service in the marketplace. If a lawsuit against you involves online statements on any of these topics, the statute may provide you relief.

The Act specifically excludes any "enforcement actions," such as criminal prosecutions, brought in the name of the state of Texas, as well as any legal actions against people "primarily engaged in the business of selling or leasing goods or services," if the statement at the heart of the lawsuit arises out of that sale and is directed at actual or potential customers. The Act further excludes lawsuits related to bodily injury and wrongful death claims.

How To Use The Texas Anti-SLAPP Statute

You must file a special motion to dismiss under the Citizens Participation Act within 60 days of being served with the lawsuit. A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Upon learning of a lawsuit against you that you think may be a SLAPP, you should consult an attorney; while legal help is expensive, if your motion to dismiss succeeds the court will grant you attorneys' fees.

One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to dismiss, the court must rule on your motion within thirty days, unless the court's docket is overbooked. Once your motion to dismiss is filed, discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion – that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions.

The court may allow some limited discovery as long as it is relevant to the motion to dismiss, but the allowance of such discovery does not extend the time for the court to rule on the motion. In the first appellate decision from Texas interpreting the Citizens Participation Act, the Court of Appeals for the Fifth District held that when a trial court judge deferred ruling on anti-SLAPP motion for more than thirty days after it was filed in order to allow limited discovery to take place, the lower court constructively denied the motion and the defendant had an immediate right to appeal at the end of the thirty-day period. Avila v. Larrea, No. 05-11-01637-CV, slip op. at 11-12 (Tex. App. Dec. 18, 2012).

Texas courts follow a two-step process when deciding a motion to dismiss under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show “by a preponderance of the evidence” that the plaintiff's claim is "based on, relates to, or is in response to" your exercise of the speech/petition/association rights described above. Once you successfully show that your online writing involves the exercise of those rights, the burden shifts to the plaintiff for step two. The plaintiff must establish "by clear and specific evidence" a prima facie case for each part of his or her original claim; if the plaintiff fails to show this, the court will dismiss the claim.

Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.

What Happens If You Win (or Lose) A Motion To Dismiss

If you prevail, in whole or in part, in your motion to dismiss under the Citizens Participation Act, the court "shall" award you "court costs, reasonable attorney's fees, and other expenses. . . as justice and equity may require." The court "shall" further award you damages from the plaintiff "sufficient to deter the party who brought the legal action from bringing similar actions." In short, the court will tailor your total monetary award to suit both your costs and the specific attributes of the individual plaintiff.

Note that if the court finds that your motion to dismiss under the Act is "frivolous or solely intended to delay," the judge "may" award court costs and attorney's fees to the plaintiff; this is permissive, not required, and the plaintiff may not recover further punitive damages.

If you succeed in fending off a SLAPP lawsuit in Texas, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Texas does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Virginia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

The CMLP has not identified any relevant statues or cases concerning Strategic Lawsuits Against Public Participation (SLAPPs) in Virginia. If you know about an anti-SLAPP law in Virginia, please contact us. You can find general information in the section on Responding to Strategic Lawsuits Against Public Participation (SLAPPs). If you receive a SLAPP, you should immediately get legal assistance. You also may want to refer to the section on Responding to Lawsuits for more information.

If you succeed in fending off a SLAPP-type lawsuit in Virginia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Virginia does not explicitly recognize a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to Washington. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

You can use the Washington Act Limiting Strategic Lawsuits Against Public Participation, found at Wash. Rev. Code § 4.24.525, to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike any claim against you that is based on your public statements about an issue of public concern. The anti-SLAPP law allows for a stay of all discovery, pending hearings, and motions, with certain exceptions. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees, litigation costs, and ten thousand dollars in damages.

Activities Covered By The Washington Anti-SLAPP Statute

To challenge a lawsuit under Washington's anti-SLAPP act, you must show that the claim(s) against you is based on your written or spoken acts "involving public participation and petition". Washington defines statements involving "public participation and petition" in 5 ways:

• (1) Statements made in a "legislative, executive, or judicial proceeding or other governmental proceeding authorized by law,"
• (2) Statements made regarding any issues under consideration by any branch of the government,
• (3) Statements that are reasonably likely to encourage public participation and interest in an issue being considered by the government,
• (4) Statements made "in a place open to the public or a public forum in connection with an issue of public concern," or
• (5) "Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition."

Wash. Rev. Code § 4.24.525 (4)(a-e). As an online publisher, you are most likely to rely on the fourth category above. It applies to written statements in a public forum on an issue of public concern.

Washington courts have not yet explicitly ruled on whether the Internet is a public forum; however, Washington's anti-SLAPP law is explicitly modeled on California's statute, and federal courts in Washington have looked to California law in interpreting Washington's statute. In California, a publicly accessible website is considered a public forum. While California law is not binding on Washington courts, it might be persuasive.

Many different kinds of statements may relate to an issue of public concern. The statute itself does not define "public concern," but courts in Washington have found that the national health care crisis, or internal happenings in a fire department qualify. Here too, California law can be persuasive to Washington courts; see CMLP's page on California's anti-SLAPP statute for more examples of protected, and unprotected, speech.

Washington's law explicitly does not apply to prosecutions brought by the state. Wash. Rev. Code § 4.24.525 (3).

How To Use The Washington Anti-SLAPP Statute

The Washington anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. (Note that if the plaintiff serves you with an amended complaint, the 60-day deadline will run from service of the amendment.) A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.

One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to strike, the court must hold a hearing on your motion within thirty days, unless the court's docket is overbooked. Until your motion is decided, all discovery and other hearings will be stayed (unless the plaintiff can show good cause for continuing some discovery).

Washington courts follow a two-step process when deciding a motion to strike under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show by a preponderance of the evidence that the plaintiff's claim is based on your speech protected as involving public participation. (See above.) Once you successfully show that your online writing involves public participation, the burden shifts to the plaintiff for step two. The plaintiff must clearly show “by clear and convincing evidence a probability” of winning the lawsuit; if the plaintiff fails to show this, the court will dismiss the claim.

Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal.

What Happens If You Win (or Lose) A Motion To Strike

If you win your motion to strike under Washington's anti-SLAPP statute, the court will dismiss the lawsuit (or the parts of the lawsuit found to be SLAPPs). You will also be entitled to receive your attorneys' fees, your court costs, and an automatic statutory damage award of $10,000. The court may also sanction the plaintiff or the plaintiff's attorney.

Normally, nothing happens if you lose your motion to strike (other than the lawsuit continuing against you). However, if the court finds that your motion under the anti-SLAPP law was entirely frivolous or solely intended to delay the lawsuit, the court can award attorneys' fees, court costs, and an automatic statutory damage award of $10,000 to the plaintiff.

If you succeed in fending off a SLAPP lawsuit in Washington, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Washington does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

Note: This page covers information specific to The District of Columbia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.

The District of Columbia Anti-SLAPP Act of 2010, D.C. Code 16-5502, allows you to counter a SLAPP suit against you based on your statements involving matters of public concern by filing a special motion to dismiss. The Act also allows for the stay of discovery proceedings when the special motion to dismiss is pending, with certain exceptions. Finally, if a party to a SLAPP suit seeks your personal identifying information, the Act allows you to make a special motion to quash the discovery order, request, or subpoena.

The D.C. Anti-SLAPP Act of 2010 applies to suits based on written or oral statements regarding (1) an issue being considered by a governmental body; (2) governmental or official proceedings; or (3) issues of public interest made in a public forum. It also applies to suits concerning any expressive conduct involving petitioning the government or communicating with the public regarding issues of public interest. Certain commercial statements are specifically outside the protections of the Act.

The D.C. Anti-SLAPP statute has been invoked in several cases in the District of Columbia. If you know about any additional relevant cases, please contact us.

Activities protected by the D.C. Anti SLAPP Statute

To challenge a lawsuit under the D.C. Anti-SLAPP Act, you must show that it is based on your act or acts "in furtherance of the right of advocacy on issues of public interest." It defines "an act in furtherance of the right of advocacy on issues of public interest" as

(A) Any written or oral statement made:

(i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
(ii) In a place open to the public or a public forum in connection with an issue of public interest; or

(B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.

The Act defines an "issue of public interest" as "an issue related to health or safety; environmental, economic, or community well being; the District government; a public figure; or a good, product or service in the market place." The Act specifically excludes "private interests, such as statements directed primarily toward protecting the speaker's commercial interests rather than toward commenting on or sharing information about a matter of public significance" from the definition of an "issue of public interest."

Similarly, the D.C. Anti-SLAPP statute specifically does not apply to suits which are:

brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises is:

(1) A representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person's goods or services; and
(2) The intended audience is an actual or potential buyer or customer.

Until judicial guidance is available, the scope of commercial statements excluded from the protection of the protection of the Act will remain subject to interpretation.

Protections for Personal Identifying Information Sought in a SLAPP suit

In addition to allowing a defendant in a SLAPP lawsuit to seek dismissal of the suit, the D.C. Anti SLAPP statute also provides some protections if your personal identifying information is sought, "pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest." On its face, this provision is not limited to parties to the lawsuit, and thus might potentially be used by witnesses or other targets of discovery that are not parties.

As used in this provision, "an act in furtherance of the right of advocacy on issues of public interest," has the same definition as discussed above.

"Personal identifying information" includes information such as your name, address, and social security number. More specifically, the Act defines "personal identifying information" by reference to section 127a(3) of the District of Columbia Theft and White Collar Crimes Act of 1982 (D.C. Law 4-164, D.C. Code § 22-3227.01(3)). By this reference, "personal identifying information" also includes information such as financial account numbers, government identification numbers (like those on driver's licenses and passports), signatures, biometric data, and employment history.

How to use the District of Columbia Anti-SLAPP statute

The D.C. Anti-SLAPP Act of 2010 gives you the ability to file a special motion to dismiss within 45 days after service of the claim. (You may also have other bases to move to dismiss under other rules or statutes; you should consult an attorney as to whether deadlines for other motions are affected by the filing of a special motion to dismiss under the Anti-SLAPP Act.) The Superior Court of the District of Columbia has denied at least one special motion to discuss under the D.C. Anti-SLAPP Act for failing to file the motion in a timely manner, although the court noted that, in other cases, "the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty five day framework." Newmyer v. Sidwell Friends School, No. 2011 CA 003727 M (D.C. Super. May 22, 2012); see also Sherrod v. Breitbart, 843 F. Supp. 2d 83, 86 (D.D.C. 2012) (denying defendant's motion to dismiss under the D.C. Anti-SLAPP Act in part because the motion to dismiss was filed more than forty five days after service of the claim).

The special motion to dismiss must make a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion will be granted unless the plaintiff (the party responding to your motion) shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to dismiss will be denied.

The court must hold an "expedited hearing" on the special motion to dismiss and issue a ruling "as soon as practicable" after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice, meaning that the plaintiff cannot refile her claim against you.

After you file your special motion to dismiss, the Act provides that discovery proceedings on the claim will be stayed, or postponed, until the court disposes of the motion -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions. However, if it "appears likely" that targeted discovery will enable the plaintiff to defeat the special motion to dismiss and that the discovery will not be unduly burdensome, the court may order "specialized discovery." The court's order may be conditioned upon the plaintiff paying any expenses you incur in responding to such discovery.

In addition to creating the special motion to dismiss, the Act also allows a person whose personal identifying information is sought in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest to file a special motion to quash -- that is, to void or terminate the subpoena, request, or discovery order seeking your personal identifying information so you do not have to provide that information.

To succeed in your motion to quash, you must make a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, as defined above. If you make such a prima facie showing, the motion to quash will be granted unless the plaintiff shows that the claim is likely to succeed on its merits. If the plaintiff shows that the claim is likely to succeed on its merits, the motion to quash will be denied.

If your special motion to dismiss is denied, you may want to appeal. The District of Columbia Court of Appeals has held that immediate appeal is not available for denials of a special motion to dismiss under the D.C. Anti SLAPP statute. Newmyer v. Sidwell Friends School, No. 2011 CA 3727 (D.C. Dec. 5, 2012). That means that you cannot appeal the denial immediately when the denial order is entered, but rather must wait until the end of the entire trial to appeal the denial of your special motion to dismiss. The issue of whether immediate review is available to appeal denials of special motions to dismiss under the Act is at issue in a case pending before the United States Court of Appeals for the District of Columbia Circuit in Sherrod v. Breitbart, No. 11-7088.

Retroactivity

At least one federal court has held that the D.C. Anti-SLAPP Act does not apply retroactively to lawsuits filed before the effective date of the Act, March 31, 2011, although the case is currently on appeal to the United States Court of Appeals for the District of Columbia Circuit. See Sherrod v. Breitbart, 843 F. Supp. 2d 83, 84 85 (D.D.C. 2012). However, the Superior Court of the District of Columbia has held in at least one case that the Act applies retroactively. Lehan v. Fox Television Stations, Inc., No. 2011 CA 004592 B, 2011 D.C. Super. LEXIS 14 (D.C. Super. Nov. 30, 2011).

What Happens If You Win A Motion To Dismiss Or Quash

If you prevail, in whole or in part, on your special motion to dismiss or special motion to quash, the Act provides that the court "may" award you "the costs of litigation, including reasonable attorney fees." Note that the statutory language is permissive; while the court may award you these costs, it is not required to do so. The Act also restricts the court's ability to award the plaintiff attorneys' fees and costs if you do not prevail. In that case, the Act allows the court to award the plaintiff costs only if it finds that your motion is "frivolous" or "solely intended to cause unnecessary delay." The Superior Court of the District of Columbia has awarded attorneys' fees to the plaintiff in at least one case in which it found the special motion was frivolous, i.e. "‘wholly lacking in substance' and not ‘based upon even a faint hope of success on the legal merits.'" Newmyer, No. 2011 CA 003727 M (quoting In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005)).

If you succeed in fending off a SLAPP lawsuit in the District of Columbia, you may be able to bring a claim of malicious prosecution against the original plaintiff. While the District of Columbia does not have a special form of process for a "SLAPPback" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.

 

The D.C. Anti-SLAPP Act in the Federal Courts

The United States District Court for the District of Columbia has issued conflicting opinions on whether the D.C. Anti-SLAPP Act applies in federal court in lawsuits brought under the court's diversity jurisdiction. Cf. Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does apply to federal diversity cases); 3M Co. v. Boulter, 842 F. Supp. 2d 85, 111 (D.D.C. 2012) (holding that the D.C. Anti-SLAPP statute does not apply to federal diversity cases); 3M Co. v. Boulter, No. 11-cv-1527 (RLW), 2012 U.S. Dist. LEXIS 151231 (D.D.C. Oct. 22, 2012) (same). Several cases that may resolve this issue are currently pending on appeal before the United States Court of Appeals for the District of Columbia Circuit.

The Citizen Media Law Project would like to thank Caitlin Vogus for her contributions to this article, and for her extensive work on the Legal Guide over the past several years.

It is not clear whether Arizona recognizes a claim for publication of private facts.  Although the Court of Appeals of Arizona discussed possible elements of a publication of private facts claim in Rutledge v. Phoenix Newspapers, Inc., 715 P.2d 1243 (Ariz. App. 1986), the Court noted that Arizona precedent regarding the existence of such a claim was not settled.  Id. at 1246 n. 3; see also Cluff v. Farmers Ins. Exchange, 460 P.2d 666, 669 (Ariz. App. 1969) (noting that Arizona "possibly" recognizes a claim for publication of private facts).

Elements of a Private Facts Claim

The only Arizona Supreme Court case to discuss the elements of a private facts claim indicated that "[a] person who unreasonably and seriously interferes with another's interest in not having his affairs known to others" might be held liable for invasion of privacy.  Reed v. Real Detective Pub. Co., 162 P.2d 133, 137 (Ariz. 1945). However, at least one court has indicated that this description of the claim is outdated.  Rutledge, 715 P.2d at 1246 n.3.  If Arizona were to recognize a claim for publication of private facts, the Arizona Supreme Court would likely follow the generally accepted elements for a such a claim.

The Arizona Supreme Court has recognized that privacy rights are absent or limited “in connection with the life of a person in whom the public has a rightful interest, [or] where the information would be of public benefit.” Accordingly, the Court has held in a related context that public servants have no right to privacy concerning the performance of their public lives or duties. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 789 (Ariz. 1989) (claim for false light invasion of privacy).

Relying on Public Records

The Arizona Supreme Court has not addressed the question of whether liability for publication of private facts may be imposed for dissemination of information in the public record.  However, in the context of a claim for false light invasion of privacy, at least one Arizona court has recognized a privilege against liability for reporting information from the public record as long as the report is a fair and accurate abridgment of the records used. Sallomi v. Phoenix Newspapers, Inc., 771 P.2d 469, 472 (Ariz. App. 1989). 

Consent

The Arizona Supreme Court has not specifically addressed the question of whether the consent of the person whose information is published is a defense to a private facts claim.  The Court has, however, recognized in another privacy-related context that that consent is a defense, and also that a plaintiff who has become a “public character” may be found to have waived his privacy rights. Reed v. Real Detective Pub. Co., 162 P.2d 133, 138 (Ariz. 1945).  It is not clear if a "public character" is the same as a "public figure" for the purposes of defamation law (scroll down).

Statute of Limitations

The statute of limitations for any privacy claim in Arizona is 2 years. A.R.S. § 12-542.

California recognizes a legal claim for publication of private facts. For the most part, the law in California is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of California law that are different from the general description.

Elements of a Private Facts Claim

In California, the elements of a publications of private facts claim are: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern. California is notable for also requiring a plaintiff to show that the defendant published private facts "with reckless disregard for the fact that reasonable men would find the invasion highly offensive." Briscoe v. Reader's Digest Ass'n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).

This requirement gives you extra protection against a private facts claim. It means that a plaintiff must show more than that you were simply wrong in believing publication of the facts in question was not offensive; the plaintiff must show that you entertained serious doubts about its offensiveness and decided to publish the facts in question anyway. In a court, this would involve examination of your state of mind at the time of the publication.

Under California law, the plaintiff must affirmatively prove that the facts published were not a matter of legitimate public concern; otherwise, the claim fails. The courts consider three factors when deciding whether facts are of legitimate public concern: (1) the social value of the facts published; (2) the depth of the intrusion into ostensibly private affairs; and (3) the extent to which the plaintiff voluntarily assumed a position of public notoriety. Most facts about celebrities and public officials are considered matters of legitimate public concern. Private facts about ordinary people involved in events or occurrences of public significance are of legitimate public concern if they bear a reasonable relationship to the newsworthy topic. Courts applying California law have found the following information, among other things, to be newsworthy (i.e., of legitimate public concern):

• publication of an actress's address;
• photos showing potential abuse of military prisoners;
• reports of recent crimes (but not necessarily including names of witnesses and victims);
• facts surrounding the disappearance of a man believed to have been murdered by the Manson family, and the fact that the plaintiff was the last person to see him alive;
• the sexual orientation of a man who helped thwart an assassination attempt on President Ford;
• the name of a young woman who had kept her pregnancy secret, given birth, and asked her brother (also named) to abandon the baby at a hospital under false pretenses;
• images of automobile accident victims being rescued and treated; and
• information and records reflecting misconduct by the children of a candidate for public office.

In contrast, courts applying California law have found the following things, among others, to be potentially non-newsworthy:

• the fact that the first female student body president of a college was a transsexual;
• embarrassing stories from a prominent body surfer's personal history;
• the name of a woman who had discovered her murdered roommate and seen the murder suspect in her apartment, when the suspect was still at large; and
• the identity of a participant in the federal witness protection program.

For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: California.

Relying on Public Records

In California, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. For example, in Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004), the California Supreme Court held that a news organization could not be held liable for broadcasting truthful information obtained from official court records about the plaintiff's past criminal history. So far, California courts have only applied this rule to information obtained from court records, but the protection could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

California recognizes consent as a defense to a publication of private facts claim. California courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in California is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations in California for publication of private facts claims is not entirely clear. A number of California court decisions applying California law have held that the one-year statute of limitations for libel actions applies to claims for invasion of privacy, which includes claims for publication of private facts. The statute of limitations for libel actions is found at Cal. Civ. Proc. Code § 340.

Florida recognizes a legal claim for publication of private facts. For the most part, the law in Florida is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Florida law that are different from the general description.

Elements of a Private Facts Claim

In Florida, the elements of a publications of private facts claim are: (1) the publication; (2) of private facts; (3) that are offensive; and (4) are not of public concern.

Florida law does not impose liability for publication of facts that are of legitimate public concern. The Florida Supreme Court has recognized that this "newsworthiness" exception presents a "formidable obstacle" for a plaintiff bringing an invasion of privacy lawsuit. Hitchner v. Cape Publication, Inc., 549 So. 2d 1374, 1377 (Fla. 1989). This exception to liability is very broad; without question, this covers things like current events of public significance and information about the actors who take part in them. It also covers "soft news" and other human interest portrayals and accounts.

The courts have recognized, however, that individuals maintain a zone of privacy relating to certain sensitive personal matters. As a general rule, private facts about public officials and celebrities are more likely of legitimate public interest than private facts about ordinary people who get involuntarily caught up in newsworthy events.

Courts applying Florida law have found the following things, among others, to be newsworthy (i.e., of legitimate public concern):

• facts relating to child abuse allegations, which came from a confidential file released to the press in violation of a Florida statute, when the reporter was using the facts to call into question a criminal court's decision rather than "attempting to sensationalize a private nongovernment matter";
• a newspaper story detailing the abduction of a woman by her estranged husband and his holding her hostage, and publication of a photograph of the woman, clad only in a dish towel, after she was rescued by the police;
• a "canned" news film depicting the plaintiff, who was an innocent bystander during a gambling raid on a cigar store;
• a factual account of the murder of the plaintiff's husband;
• a depiction of the plaintiff as a murder witness in Bob Dylan's song about the murder trial of Ruben "Hurricane" Carter;
• a television news broadcast showing the plaintiff, a lobbyist, in a hotel bar, when the TV program was documenting how state employees spent time during a bomb threat incident that evacuated the capitol building; and
• a conversation at Bush campaign headquarters, in which the plaintiff, a political campaign worker, shared bizarre ideas like the benefits of having society guarded by a clone army, when the purpose of the article was to help readers understand the nature of support for President Bush.

In contrast, one Florida court held that a plaintiff stated a cause of action for publication of private facts when she alleged that a TV program had broadcast an interview with her about her unfortunate plastic surgery experience without disguising her voice and concealing her face as promised. The court rejected the argument that the information disclosed in the interview was newsworthy, concluding that "while the topic of the broadcast was of legitimate public concern, the plaintiff's identity was not." Doe v. Univision Television Group, Inc., 717 So.2d 63, 65 (Fla. Dist. Ct. App. 1998).

For additional information and discussion of Florida cases, see the Reporters Committee's Photographers' Guide to Privacy: Florida and the Florida Bar's Reporter's Handbook.

Relying on Public Records

In Florida, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Florida courts have applied this protection to information obtained from court records (and from proceedings in open court), but it could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Florida recognizes consent as a defense to a publication of private facts claim. Florida courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Florida is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for publication of private facts claims in Florida is four years. See Fla. Stat. § 95.11(3)(p).

Georgia recognizes a legal claim for publication of private facts. For the most part, the law in Georgia is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Georgia law that are different from the general description.

Elements of a Private Facts Claim

In Georgia, the elements of a publication of private facts claim are: (1) the disclosure of private facts must be a public disclosure; (2) the facts disclosed to the public must be private, secluded or secret facts and not public ones; and (3) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.

Georgia law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Wilson v. Thurman, 445 S.E.2d 811, 813 (Ga. Ct. App. 1994). Georgia courts have repeatedly affirmed that reporting about issues concerning crime and criminal investigations are matters of public interest and cannot support a claim of invasion of privacy.

For example, courts applying Georgia law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

• the identity of a man who recalled observing a noteworthy automobile at a double-homicide crime scene and informed police, his neighbors and the press about his observation;


• a truthful description of a vicious attack of a high school student by a group of his fellow students;


• a state investigation report concerning allegations of sexual harassment by a state employee that was disclosed to the media pursuant to an Open Records Act request;


• the name of a woman who shot and killed an intruder who attempted to assault her sexually; and


• the depiction of an inmate at a corrections facility that was broadcast by the media in connection with a story about improper use of prison labor by county officials.

In contrast, a Georgia appellate court affirmed the award of damages to a plaintiff whose identity as an AIDS patient was disclosed in a television program about AIDS. The court cited legislative enactments that protected persons against the disclosure of confidential AIDS information and reasoned that in each prior case which had rejected a claim for publication of private facts based upon the public interest of the subject matter, the information disclosed concerned a “criminal incident or investigation.” Multimedia WMAZ v. Kubach, 443 S.E.2d 491, 494-95 (Ga. App. Ct. 1994).

For additional information and discussion of Georgia cases, see the Reporters Committee's Photographers' Guide to Privacy: Georgia.

Relying on Public Records

In Georgia, you generally cannot be held liable for publishing truthful information obtained from government records open to public inspection. Courts have applied this protection to information obtained from court records and statements made before a public body, but it could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Georgia recognizes consent as a defense to a publication of private facts claim. Georgia courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record verbal consent using an audio or video recording device. The age of majority in Georgia is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for publication of private facts claims in Georgia is two years. See Ga. Code Ann. § 9-3-33 (2006).

Illinois recognizes a legal claim for publication of private facts. For the most part, the law in Illinois is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Illinois law that are different from the general description.

Elements of a Private Facts Claim

In Illinois, the elements of a publications of private facts claim are: (1) publicity was given to private facts; (2) the facts were private and not public facts; and (3) the matter made public would be highly offensive to a reasonable person.

Illinois law does not impose liability for invasion of privacy when the invasion is deemed newsworthy or is a matter of legitimate public concern. Persons performing official duties for the government have no right of privacy as to information concerning discharge of those duties. Cassidy v. Am. Broad. Cos., 377 N.E.2d 126, 132 (1st. Dist. 1978). In addition, courts applying Illinois law have found the following things, among others, to be newsworthy:

• a newspaper article on the dangers of drugs that disclosed the identity of a teen who overdosed on drugs;
• a dramatization made by a publisher of a newspaper article describing the murder of a woman; and
• the broadcast of an undercover police officer in the performance of his official duties.

In contrast, an Illinois court has held that a jury reasonably could find that a photograph of a woman's dead son (killed by gunshot wound in a gang-related incident) and her statements to his expired corpse in a private hospital room were not of legitimate public concern, even though the general topic of gang violence was newsworthy. It reasoned that the jury could determine that the newspaper did not need the plaintiff's intimate statements to her son or his photograph to convey the human suffering behind gang violence. See Green v. Chicago Tribune, 675 N.E.2d 249 (Ill. App. Ct. 1996).

Relying on Public Documents

In Illinois, you generally cannot be held liable for publishing truthful information gleaned from public records which include, for example, criminal records and divorce decrees. The protection could apply to information obtained from other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Illinois recognizes consent as a defense to a publication of private facts claim. Illinois courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Illinois is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations in Illinois for publication of private facts claim is one year. See 735 Ill. Comp. Stat. 5/13-201.

Whether Indiana recognizes a legal claim for publication of private facts is unsettled. Before 1997, Indiana's lower courts recognized a such a claim. But, in Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997), two Justices of the Indiana Supreme Court ruled that Indiana law did not recognize a legal claim for publication of private facts, while three other Justices agreed with the result in the case but not with their reasoning. Later courts have disagreed on whether this claim still exists in Indiana.

To the extent that Indiana law still recognizes a publication of private facts claim, it is generally similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Indiana law that are different from the general description.

Elements of a Private Facts Claim

If Indiana still recognizes a private facts claim, the elements are: (1) a public disclosure of private information concerning the plaintiff that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (2) to persons who have no legitimate interest in the information; (3) in a manner that is coercive and oppressive.

Indiana law does not impose liability for publication of facts that are of legitimate public interest. Nobles v. Cartwright, 659 N.E.2d 1064, 1073 (Ind. Ct. App. 1995). Courts applying Indiana law have found the following things to be of legitimate public interest (i.e., newsworthy):

• a suspected arsonist's loan status disclosed by a bank to an arson investigator;


• debts owed by the employees of a company disclosed by a creditor to the employer; and


• the details of an extramarital affair related to a sexual harassment claim against agents of the State Lottery Commission of Indiana made public by the media.

Relying on Public Records

In Indiana, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection, but there is little case law on this subject. This protection applies most commonly to information obtained in court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Indiana recognizes consent as a defense to a publication of private facts claim. Indiana courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Indiana is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

Assuming that Indiana still recognizes a publication of private facts claim, the statute of limitations in Indiana is two years. See Ind. Code § 34-11-2-4.

Massachusetts recognizes a legal claim for publication of private facts based on Mass. Gen. Laws ch. 214, § 1B, which proscribes "unreasonable, substantial or serious interference" with one's privacy. For the most part, the law in Massachusetts is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Massachusetts law that are different from the general description.

Elements of a Private Facts Claim

In Massachusetts, a publication of private facts claim requires proof of a publication of facts of a "highly personal or intimate nature" which are "of no business of the public." In contrast to several other jurisdictions, the disclosure need not be made to the public at large and a disclosure to two people has been found sufficient to warrant relief under § 1B. Offensiveness to a reasonable person is not one of the statutory criteria under § 1B, but Massachusetts courts consider publication of private information "of no business to the public" to be "offensive." See Cefalu v. Globe Newspaper Co., 391 N.E.2d 935, 939 (Mass. App. Ct. 1979). Massachusetts courts have rejected a number of invasion of privacy claims based on conduct taking place in public locations because the facts in question were not private. See the general description for more information on the elements of a private facts claim.

Massachusetts law does not impose liability for publication of information that is of legitimate public concern or newsworthy. Peckham v. Boston Herald, Inc., 719 N.E.2d 888, 892-94 (Mass App. Ct. 1999). For example, courts applying Massachusetts law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

• a photograph of a girl taken shorty after she died in a car accident;


• a biography of an inventor;


• passages from an autobiographical book depicting sexual relations with the author's former boyfriend, when the passages related to an examination of when undesired physical intimacy crosses the line into non-consensual sexual relations in the context of the author's unique health condition;


• a report about an applicant for a school superintendent's position who has reached an advanced point in the hiring process;


• a report about allegations of sexual harassment against the owner of a youth hostel open to the public; and


• a television network's broadcast of the plaintiff's arrest for murder.

In contrast, Massachusetts courts have found that confidential medical information is not a matter of legitimate public concern and have upheld an invasion of privacy claim based on a report publishing unsubstantiated ten-year-old investigation material about the plaintiff, a public figure.

Relying on Public Records

In Massachusetts, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Massachusetts courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Massachusetts recognizes consent as a defense to a publication of private facts claim. Massachusetts courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Massachusetts is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for publication of private facts claims in Massachusetts is three years. See Mass. Gen. Laws ch. 260, § 2A.

 

Michigan recognizes a legal claim for publication of private facts. For the most part, the law in Michigan is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Michigan law that are different from the general description.

Elements of a Private Facts Claim

In Michigan, a cause of action for public disclosure of private facts requires the disclosure of (1) private information that is not already a matter of public record or otherwise open to the public eye; (2) that is of no legitimate concern to the public; and (3) the publication of which would be highly offensive to a reasonable person.

Michigan law does not impose liability for publishing facts that are of legitimate public concern or newsworthy. Courts applying Michigan law have found the following things to be of legitimate public concern (i.e., newsworthy):

• a newspaper article about the plaintiff's husband's death by fire along with another woman, including biographical information about the plaintiff and her children and mentioning that her husband had been seen in a bar with the other woman before the fire;

• a report disclosing the address of a foreign judge who had received death threats from a well-known drug cartel because the death threats placed his neighbors in danger; and

• information about the disciplinary measures imposed on the plaintiff, a police officer, who allegedly failed to properly perform his duties;

In contrast, a Michigan appellate court held that, even though the topic of abortion is a matter of public interest, the identities of patients actually undergoing the procedure were not. See Doe v. Mills, 536 N.W.2d 824 (Mich. Ct. App. 1995). Similarly, another court held that, while the general topic of a newspaper article -- unique love relationships -- was of legitimate public concern, the specific facts disclosed about the plaintiff -- including that she had several abortions, engaged in partner swapping, and was involved in a surrogate parenting relationship with her former husband and her maid of honor -- were not necessarily newsworthy. See Winstead v. Sweeney, 517 N.W.2d 874 (Mich. Ct. App. 1994).

Relying on Public Records

In Michigan, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. This includes court records and other government records that place information before the public eye.

Consent

Michigan recognizes consent as a defense to a publication of private facts claim. Michigan courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in Michigan is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

There is no statute of limitations for an invasion of privacy claim in Michigan, but a publication of private facts claim would likely be governed by the general three-year statute of limitations for negligence claims. Mich. Comp. Laws § 600.5805(8).

Missouri was one of the first states to recognize a legal claim for the publication of private facts. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). For the most part, the law in Missouri is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Missouri law that are different from the general description.

Elements of a Private Facts Claim 

In Missouri, a publication of private facts claim requires proof of: (1) publication or "publicity" (2) absent any waiver or privilege, (3) of private matters in which the public has no legitimate concern, (4) so as to bring shame or humiliation to a person of ordinary sensibilities." Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488 (Mo. Ct. App. 1990).

Missouri law defines "publicity" as a disclosure made to the general public or likely to reach the general public. Missouri courts have treated the oral disclosure of private facts in a public setting as sufficient "publicity" to give rise to potential liability. See Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959).

Missouri law recognizes a distinction between newsworthy events and "private matters" in which the public has no legitimate concern. While a topic might be newsworthy, however, this does not mean that every individual's connection or participation in that matter is newsworthy. For example, the Missouri Supreme Court held that while a plaintiff's unusual medical condition may have been a matter of public interest and thereby newsworthy, her identity was a private matter. See Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942). Likewise, the success of a hospital's in vitro fertilization program was newsworthy, but the identity of plaintiffs participating in the program was a private matter. See Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488 (Mo. Ct. App. 1990). Missouri courts have consistently ruled that medical conditions and hospital stays are private facts.

Where the police, public bodies, or legal institutions are involved, the matter will likely be one of public interest. Buller v. Pulitzer Pub. Co., 684 S.W.2d 473 (Mo. Ct. App. 1984). 

Certain details about an individual's life may fall into the public interest through legal action, police activity, or the action of other public bodies (even if that individual had no intention of making them known to the public). In Williams v. KCMO Broadcasting Div. Meredith Corp., 472 S.W.2d 1 (Mo. Ct. App. 1971), a man was filmed being put into a police car after he was arrested with five others. During a broadcast of the footage, commentary stated that three of the men would be charged in connection with a crime. Even though the plaintiff did not participate in a crime and was released without being charged, the court held that he did not have a cause of action for invasion of privacy.

If another media outlet has already disclosed information about an individual, that information will not be considered private for the purposes of a subsequent publication by another publisher. However, this does not apply to information not contained in the original publication. See Barber v. Time, Inc., 159 S.W.2d 291 (1942).

Missouri law requires plaintiffs to show that a publication shows a "serious, unreasonable, unwarranted and offensive invasion of private affiars" before damages can be awarded. Barber v. Time, Inc., 159 S.W.2d 291 (1942). Because of this requirement, a Missouri court noted that the state "places a heavier burden on the plaintiff than do many of the other jurisdictions." Williams v. KCMO Broad. Div. Meredith Corp., 472 S.W.2d 1 (Mo. Ct. App. 1971). 

Relying on Public Records

In Missouri, you generally cannot be held liable for publishing truthful information that is a matter of public record. A federal court applying Missouri law held that a publication of private facts claim could not be based on information revealed in open court proceedings. See McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir. 1976). A Missouri court applied this protection to information revealed in an open meeting of a city council. See Boeke v. Williams, 721 S.W.2d 794 (Mo. Ct. App. 1986). It would likely apply to information obtained from other public government records as well. 

Waiver

Missouri appears to recognize waiver (or consent) as a defense to a publication of private facts claim. However, courts have not addressed this issue in depth. 

Statute of Limitations

Missouri does not provide a statute of limitations period specific to the filing of an invasion of privacy actions, but has a general statute of limitations of five years. Mo. Rev. Stat. § 516.120. This five-year statute of limitations likely applies to causes of action for the publication of private facts. In defamation cases, Missouri applies a statute of limitations of two years. Mo. Rev. § 516.140. Missouri courts have applied this two-year statute of limitations when plaintiffs have attempted to sue for false light or invasion of privacy, but the court determines that the plaintiff's claim is actually one for defamation. See Sullivan v. Pulitzer Broad. Co., 709 S.W.2d 475 (Mo. 1986).

New Jersey recognizes a legal claim for publication of private facts. For the most part, the law in New Jersey is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of New Jersey law that are different from the general description.

Elements of a Private Facts Claim

In New Jersey, the elements of a publication of private facts claim are: (1) the matter or matters revealed were actually private; (2) dissemination of such facts would be offensive to a reasonable person; and (3) there is no legitimate public interest in being apprised of the facts publicized.

New Jersey law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Courts applying New Jersey law have found the following things, among others, to be of legitimate public concern (i.e., newsworthy):

• a book chapter describing a crime that took place more than ten years previously, in a case brought by victims of the crime;


• a student newspaper article about a University investigation of misconduct on the part of University staff, including the results of the investigation;


• a newspaper article about the sale of a large home that was a local historic landmark, including information about the sale price, the number of rooms, and the owner's occupation; and


• a radio talk show host's disclosure that the plaintiff, a "media monitor," had been in a mental institution, when the plaintiff had engaged in an ongoing and heated public debate with the talk show host about the propriety of the host's views.

For additional information and discussion of New Jersey cases, see the Reporters Committee's Photographers' Guide to Privacy: New Jersey.

Relying on Public Records

In New Jersey, you generally cannot be held liable for publishing truthful information gathered from "public records." Not all government records will qualify as "public records," and the extent of the privilege is not clear. So far, New Jersey courts have applied this privilege to information obtained from court records (and from proceedings in open court), as well as to a claim for disability benefits filed with an administrative agency. In any event, information gathered from any kind of government record that is open to public inspection is unlikely to be a private fact because it is already exposed to the public eye.

Consent

New Jersey recognizes consent as a defense to a publication of private facts claim. New Jersey courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in New Jersey is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s). See the general description for a more detailed discussion of release forms.

Statute of Limitations

New Jersey applies the one-year statute of limitations for defamation claims to publication of private facts claims as well. See N.J. Stat. Ann. 2A:14-3.

North Carolina does not recognize a legal claim for the publication of private facts. See Hall v. Salisbury Post, 372 S.E.2d 711 (N.C. 1988). However, the North Carolina Supreme Court has suggested that a plaintiff might be able to bring an intentional infliction of emotional distress claim under some circumstances involving the publication of embarrassing private facts.

 

Ohio recognizes a legal claim for publication of private facts. For the most part, the law in Ohio is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This section addresses only those aspects of Ohio law that are different from the general description.

Elements of a Private Facts Claim

In Ohio, the elements of a publication of private facts claim are: (1) a public disclosure; (2) the facts disclosed must concern the private life of an individual, not his or her public life; (3) the matter disclosed must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the disclosure must have been made intentionally, not negligently; and (5) the matter disclosed must not be of legitimate concern to the public.

Ohio law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Examples of things that Ohio courts have considered to be of legitimate public concern or newsworthy include:

• a drug raid, including the arrest of an innocent bystander that was broadcast on television;
• the name and address of a murder suspect's father;
• the manner in which the police handle domestic violence complaints;
• information concerning a county government's Medicaid fraud investigation; and
• allegations of domestic abuse against a police chief.

For additional information and discussion of Ohio cases, see the Reporters Committee's Photographers' Guide to Privacy: Ohio.

Relying on Public Records

In Ohio, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Ohio courts have applied this protection to information obtained from court records, police personnel files, and Internal Affairs Department files, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Ohio recognizes consent as a defense to a publication of private facts claim. Ohio courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Ohio is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for invasion of privacy claims in Ohio is four years. See Ohio Rev. Code Ann. § 2305.9(D).

Pennsylvania recognizes a legal claim for publication of private facts. For the most part, the law in Pennsylvania is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of Pennsylvania law that are different from the general description.

Elements of a Private Facts Claim

In Pennsylvania, the elements of a publication of private facts claim are: (1) publicity given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.

Pennsylvania law does not impose liability for publication of factually accurate information that is "newsworthy" or of legitimate public concern. Pennsylvania courts consider information newsworthy when it concerns "relatively current events such as in the common experience are likely to be of public interest." Jenkins v. Dell Publ'g Co., 251 F.2d 447, 451 (3d Cir. 1958).

Courts applying Pennsylvania law have found the following things to be of legitimate public concern or newsworthy:

• the identity of a person running for public office;
• the use of public tax dollars to pay a privately retained psychologist;
• the terms of an employment discrimination settlement;
• the prosecution of a former police officer, charged with heinous crimes against a minor;
• a couple's marriage and subsequent divorce; and
• a photograph of a Pittsburgh Steelers fan with his fly undone.

In contrast, one court held that a photograph of a woman in a bathtub was not newsworthy because many people engage in bathing on a daily basis and the media generally does not consider it worth reporting publicly. McCabe v. Vill. Voice, Inc., 550 F.Supp. 525, 530-31, n.10 (D.C.Pa. 1982).

For additional information and discussion of Pennsylvania cases, see the Reporters Committee's Photographers' Guide to Privacy: Pennsylvania.

Relying on Public Records

Pennsylvania law recognizes a constitutional privilege for publishing truthful facts contained in public records. So far, Pennsylvania courts have applied this protection to information obtained from court records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Pennsylvania recognizes consent as a defense to a publication of private facts claim. Pennsylvania courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Pennsylvania is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for a publication of private facts claims in Pennsylvania is one year. See Pa. Cons. Stat. § 5523(1).

Texas recognizes a legal claim for publication of private facts. For the most part, the law in Texas is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. Here, we will address only those aspects of Texas law that are different from the general description.

Elements of a Private Facts Claim

In Texas, in order to recover for public disclosure of private facts, a plaintiff must show that (1) publicity was given to matters concerning his or her private life; (2) the publication of these facts would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized was not of legitimate public concern.

Texas law does not impose liability for publication of information that is of legitimate public concern or newsworthy. A federal court applying Texas law has indicated that "reports of the investigation of crimes or matters pertaining to criminal activity have almost without exception been held to be newsworthy or matters of public interest as a matter of law." Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007)

Texas courts have found the following things, among others, to be of legitimate public concern or newsworthy:

• information that plaintiff was a gay, HIV-positive police officer;
• an incident involving the taping of high school students changing clothes by their band director; and
• details about a blackmailing scheme, through which a husband and wife team extorted thousands of dollars from the wife's lovers.

In addition, a photograph that was published in a newspaper that accidentally revealed a high school soccer player's genitalia was protected because the photograph accurately depicted a public, newsworthy event. The court reasoned the First Amendment of the U.S. Constitution and the Texas Constitution provided the newspaper with immunity from liability for damages. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 905 (Tex. App. 1991)

For additional information and discussion of Texas cases, see the Reporters Committee's Photographers' Guide to Privacy: Texas.

Relying on Public Records

In Texas, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Texas courts have applied this protection to information revealed in open court proceedings and contained in police records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

Texas recognizes consent as a defense to a publication of private facts claim. Texas courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Texas is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for a publication of private facts claim in Texas is two years. See Tex. Civ. Prac. & Rem. Code § 16.003(a).

Virginia does not recognize a legal claim for the publication of private facts. See WJLA-TV v. Levin, 564 S.E.2d 383, 395 n.5 (Va. 2002).

 

Washington recognizes a legal claim for publication of private facts. The law in Washington is likely similar to that described in the general page on publication of private facts, but few Washington cases deal directly with this legal claim. This page addresses those aspects of Washington law, to the extent it is known, that are different from the general description.

Elements of a Private Facts Claim

In Washington, the elements of a publication of private facts claim are: (1) public disclosure (2) of a matter concerning the private life of another (3) that would be highly offensive to a reasonable person, and (4) that is not of legitimate concern to the public.

Washington law does not impose liability for publication of information that is of legitimate public concern or newsworthy. In one case, a Washington court indicated that the circumstances of the death of a young woman found naked on the side of the road were a matter of "immediate public concern" even though neither the woman nor her parents were public figures. See Moloney v. Tribune Publ'g Co., 613 P.2d 1179 (Wash. Ct. App. 1980). Washington courts probably would follow the courts of other states in determining what is a matter of legitimate public concern. See the general description for a sense of what others courts have said about this issue.

Relying on Public Records

In Washington, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection because such information is already exposed to the public eye. One case has refused to impose liability for publishing information contained in a police investigation report. See Moloney v. Tribune Publ'g Co., 613 P.2d 1179 (Wash. Ct. App. 1980).

Consent

No Washington cases address whether consent is a defense to a publication of private facts claim, but the general trend in all states is to recognize such a defense. Washington courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record verbal consent using an audio or video recording device. The age of majority in Washington is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations for a publication of private facts claim in Washington is not settled.

The District of Columbia recognizes a legal claim for publication of private facts. For the most part, the law in D.C. is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. This page addresses only those aspects of D.C. law that are different from the general description.

Elements of a Private Facts Claim

In D.C., the elements of a publications of private facts claim are: (1) publication; (2) of private facts; (3) in which the public has no legitimate concern; and (4) the publication of which would cause suffering, shame, or humiliation to a person of ordinary sensibilities.

D.C. law does not impose liability for publication of facts that are "matters of legitimate public or general interest." Dresbach v. Doubleday & Co., 518 F. Supp. 1285, 1287 (D.D.C. 1981). This "newsworthiness" exception is not limited to dissemination of news about current events or public affairs, but also protects "information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period." Vassiliades v. Garfinckel's,492 A.2d 580, 589 (D.C. 1985).

Individuals retain a zone of privacy relating to their private lives, however, and the defense will not protect the disclosure of facts unless there is a "logical nexus" (i.e., reasonable relationship) between the disclosed facts and the topic of public interest. As a general rule, private facts about public officials and celebrities are more likely of legitimate public interest than private facts about ordinary people who get involuntarily caught up in newsworthy events.

Courts applying D.C. law have found the following things, among others, to be newsworthy (i.e., of legitimate public or general interest):

• information about the plaintiff's family life as a child, in the course of a book about the plaintiff's brother murdering their parents twenty years before;
• information about an attorney's personal assets and business ventures; and
• a report about the alleged drug use of a police officer and its cover-up.

Courts applying D.C. law have found the following things to be potentially non-newsworthy:

• a child's description of a specific instance of sexual abuse; and
• "before-and-after" photographs of the plaintiff which revealed that she had undergone plastic surgery, in the context of a medical doctor's public presentation on the benefits of plastic surgery.

For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: District of Columbia.

Relying on Public Documents

In the District of Columbia, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. In Wolf v. Regardie, 553 A.2d 1213, 1221 (D.C. 1989), the D.C. Court of Appeals refused to impose liability on a defendant who published financial information gathered from "court files, tax ledgers, and agency records of this City and the federal government." The protection could apply to information obtained from other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.

Consent

The District of Columbia recognizes consent as a defense to a publication of private facts claim. D.C. courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in D.C. is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.

Statute of Limitations

The statute of limitations in D.C. for publication of private facts claims is not entirely clear. A number of federal court decisions applying D.C. law have held that the one-year statute of limitations for defamation actions applies to claims for invasion of privacy, which includes claims for publication of private facts. D.C. Code § 12-301.

This page covers legal information specific to the State of Arizona. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Arizona state courts have not explicitly recognized a common law right of publicity, although at least one older state case recognized a claim for invasion of privacy based upon "mental pain and annoyance" caused by the unauthorized display of one's picture. Reed v. Real Detective Pub. Co., 162 P.2d 133, 128 (Ariz. 1945). It is not clear whether this right of privacy survives in modern Arizona law. However, the United States District Court for the District of Arizona has held that there is "no reason why a claim for invasion of the right of publicity should not be recognized in Arizona." Pooley v. Nat'l Hole-In-One Ass'n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000).

Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians. A.R.S. §§ 12-761, 13-3726.

THE COMMON LAW RIGHT

What the Common Law Right of Publicity Protects

Although the case law is sparse, the right of publicity in Arizona at least protects a “celebrity’s name and likeness.” Pooley at 1112.  In Pooley, a promotional video depicted a professional golfer teeing off and walking across the golf course while a voice-over identified him by name.  The United States District Court for the District of Arizona held that this was sufficient grounds for a cause of action.

What Constitutes a Common Law Violation

In Pooley, a professional golfer shot a hole-in-one for a million dollars.  Years later, a marketing organization used video footage of his feat, without his permission, to advertise its own “Million Dollar Hole-in-One” promotional product.  The United States District Court for the District of Arizona applied a four factor test to determine whether or not the plaintiff had a cause of action for infringement of his right of publicity: “(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  Pooley at 1111–1112.  The court held that the plaintiff could bring a claim for infringement of his right of publicity. 

Certain “incidental” uses are exempt from right of publicity claims as they fail to convey a commercial advantage to a defendant. In particular, uses such as “news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses” is not considered “use for purposes of trade,” and therefore these uses are incidental.  Pooley at 1112.  The United States District Court for the District of Arizona has considered several factors in determining whether a use is incidental, such as:

(1) whether the use has a unique quality or value that would result in commercial profit to the defendant; (2) whether the use contributes something of significance; (3) the relationship between the reference to the plaintiff and the purpose and subject of the work; and (4) the duration, prominence or repetition of the name or likeness relative to the rest of the publication.

Pooley at 1112. In Pooley, defendants argued that the use of the plaintiff’s name and likeness was incidental because it only lasted for several seconds of an eight minute video.  The court disagreed, finding that the plaintiff’s identity was “crucial” (italics in original) to the commercial, as it was necessary to show golfers and potential buyers of the defendant’s event that million dollar hole-in-one shots were possible.  The court also explained that the commercial’s depiction and identification of an amateur golfer shooting a hole-in-one did not change their analysis, as the video did not explain that the amateur too had won a million dollars.  Instead, the “plaintiff was specifically selected because of his distinction and his wide market appeal.”

If a plaintiff consents to the use of their image, then that use is exempt from a right of publicity claim.  In Pooley and in Lemon v. Harlem Globetrotters Int'l, Inc., 437 F. Supp. 2d 1089, 1100 (D. Ariz. 2006), the federal district court in Arizona indicated that the plaintiff has the burden of proof to show lack of consent, rather than the burden being on the defendant to establish that consent was granted.

Transfer of rights by death or assignment

If Arizona’s early conception of the right to control one’s image as a subset of the general right of privacy remains good law, the right of publicity would likely not descend under Arizona law. A.R.S. § 14-3110 indicates that privacy rights do not survive the death of the person.  Similarly, such rights would likely not be assignable, as Arizona courts have held that privacy claims cannot be assigned.  Martinez v. Green, 131 P.3d 492, 495 (Ariz. Ct. App. 2006). It is not clear whether a right of publicity would be descendible or assignable if Arizona has abandoned this concept.

Defenses

The First Amendment can protect speech that would otherwise infringe on a plaintiff’s right of publicity.  The United States District Court for the District of Arizona draws a distinction between “commercial” and “communicative” speech, noting that only for the latter do a defendant’s First Amendment protections outweigh the plaintiff’s right of publicity.  Pooley at 1113.  In Pooley, the court explained that when the use of an identity is “strictly to advertise a product or service,” the First Amendment does not protect that use.  In Pooley the court held that although the hole-in-one was a public event and news in its own right, the subsequent incorporation of the plaintiff’s identity into a promotional video was “strictly commercial.”  Pooley at 1114.  The court explained that the golfer’s identity was used in “the context of an advertisement,” and not “simply to communicate an idea.”  Moreover, the court was concerned that the video suggested, inaccurately, that the plaintiff was associated with the defendant.

Note that consent, which in some other states is considered an affirmative defense in right of publicity cases, relates to the plaintiff’s brden of proof in Arizona – see above.

A common-law right of publicity claim in Arizona is likely to be subject to the state's two-year statute of limitations for personal injury cases. A.R.S.  § 12-542. 

Damages and other remedies

In Pooley, the United States District Court for the District of Arizona suggests that injunctive relief and damages are both available to a plaintiff bringing a claim for right of publicity.  Pooley at 1111.

In Lemon, the United States District Court for the District of Arizona holds that “the plaintiff may recover the proportion of the defendant's net profits that is attributable to the unauthorized use,” and notes that is the defendant’s burden to demonstrate which sales are attributable to other factors and what expenses need be deducted from revenue.  Lemon at 1103.  However, the context implies that the court may view this as one way to calculate damages, and other techniques (such as the “fair market value” of a plaintiff’s identity) may be used as well.   Lemon at 1103. 

A group of plaintiffs bringing claims for infringement of their rights of publicity need to be able to show that they have each suffered individual damages.  In Lemon, the court declared a report calculating damages “irrelevant” because it presented total damages in a manner that could not be accurately broken out for each plaintiff, but allowed the suit to proceed because  other evidence provided a basis for determining what damages had been suffered by each plaintiff.  Lemon at 1103-1107.

THE STATUTORY RIGHT

Arizona has two statutes recognizing a right of publicity for soldiers, but no corresponding statute for civilians.  A.R.S. §§ 12-761, 13-3726.  § 12-761 recognizes a civil cause of action for infringement of the right of publicity for any soldier, alive or deceased, and § 13-3726 makes it a class 1 misdemeanor to infringe the right of publicity of a deceased soldier.

There are several exceptions listed in the statutes which are not considered violations of a soldier's right of publicity:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3 of this subsection.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise.

Publishers concerned that their activities may infringe on a soldier’s right of publicity should read the statutes and also review Frazier v. Boomsma, 07-CV-8040-PHX-NVW, 2008 WL 3982985 (D. Ariz. Aug. 20, 2008).  In Frazier, the United States District Court for the District of Arizona held that enforcing A.R.S. § 13-3726 against a man selling protest t-shirts with the names of dead soldiers would violate the First Amendment, and left open the possibility that the statute is unconstitutional on face.  

A.R.S. § 12-761 states that a soldier’s right of publicity survives death and lists (in order) who may then enforce that right. A.R.S. § 13-3726, as stated above, applies only to deceased soldiers.  Claims under A.R.S. § 12-761 must be brought within five years of the offending publication.

This page covers legal information specific to the State of California. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes. California has two systems of Right of Publicity law: a statute, and a common law right. 

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Generally speaking, the Right of Publicity protects a person's right in his or her name and likeness. California's statute, Cal. Civ. Code § 3344, protects a person's:

• name, 
• voice, 
• signature, 
• photograph, and 
• likeness.

The term “voice” applies only to a person’s actual voice, not to imitations. See Midler v. Ford, 849 F.2d 460, 463 (9th Cir. 1988). However, as noted below, the common law right of publicity might apply to voice imitators. 

The term “photograph” includes still or moving pictures, but the person in question must be “readily identifiable” (meaning someone could “reasonably determine” that the photo depicts the plaintiff). However, pictures of crowds, such as on public streets or at sporting events, do not run afoul of the statute as long as no people are “singled out as individuals” in the photo. § 3344(b)(3).

The term “likeness” is the most difficult of the five protected categories to precisely define. Courts have used the “readily identifiable” test to conclude that drawings, if sufficiently detailed, can constitute a “likeness.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 692-93 (9th Cir. 1998). In another case, the court ruled that a robot, if sufficiently detailed, could be a “likeness.” Wendt v. Host Intern., Inc., 125 F.3d 806, 810 (9th Cir. 1997). Less detailed robots, though, may fall short of the “likeness” mark. White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).

What Constitutes a Statutory Violation

California's statute protects against uses of a person's likeness for advertising purposes. Specifically, the statute prohibits “knowing” use of a person’s name/likeness/etc.,

on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent[.] (Cal. Civ. Code § 3344(a))

The mere fact that a person’s likeness is used in connection with a commercial product or service does not violate the statute. Rather, the statute focuses specifically on advertising uses of a person’s likeness:

[I]t shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required[.] (Cal. Civ. Code § 3344(e))

Courts have thus interpreted the statute to impose a three-step test:

1. Was there a “knowing” use of the plaintiff’s protected identity?  
2. Was the use for advertising purposes? 
3. Was there a direct connection between the use and the commercial purpose?

See, e.g., Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998). If the answer to all three questions is “yes,” then there has been a violation of the statute.

The statute also contains an explicit exception for uses “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” § 3344(d).

Rights of the Deceased

California has a separate statute protecting posthumous rights of publicity, found at Cal. Civ Code § 3344.1. The right lasts for 70 years after death, and is considered a freely transferable, licensable, descendible property right. The substance of the right is largely the same, with the following exceptions:

• The holder of a deceased person's right of publicity must register the claim with California's Secretary of State, and the rights-holder cannot recover damages for any use that occurs before registration. § 3344.1(f)(1).
• To qualify under the statute, the deceased person's right of publicity must have had "commercial value at the time of his or her death, or because of his or her death." § 3344.1(h).
• There is an exemption for any uses in a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value," or an advertisment for any of these works. § 3344.1(a)(2).

THE COMMON LAW RIGHT

The Traditional Four-Step Test

Courts generally describe California’s common-law right as a four-step test, in which a plaintiff must allege:

1. The defendant’s use of plaintiff’s “identity”; 
2. The appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; 
3. Lack of consent; and 
4. Resulting injury.

See White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).

What the Common Law Right Protects

Though the second prong of the standard four-step test mentions “name or likeness,” courts held that the common law right is actually much broader: the focus instead is on the term “identity.” See Abdul-Jabbar v. General Motors, 85 F.3d 407, 413-14 (9th Cir. 1996).

Courts have interpreted “identity” broadly, covering more uses than does the statutory right of publicity. For example, imitating someone’s voice is not a violation of the statute, but it may violate the common law right. See Waits v. Frito-Lay, 978 F.2d 1093, 1098-1100 (9th Cir. 1992). A picture of a distinctly-decorated race car can be a common-law violation, even if the driver himself is not visible. Motschenbacher v. R.J. Reynolds Tobacco, 498 F.2d 821, 827 (9th Cir. 1974). A robot can constitute a common-law violation, even if not sufficiently detailed to violate the statute. White v. Samsung, 971 F.2d 1395, 1397-99 (9th Cir. 1992).

What Constitutes a Violation of the Common Law Right

Unlike the statute, the common law right is not explicitly limited to commercial uses of a plaintiff’s identity. However, the “less commercial” a use, the more that First Amendment concerns come into play. (See section on First Amendment Limitations below.) Purely commercial speech, such as advertising, does nothing more “than propose a commercial transaction”; if a defendant’s use falls outside the realm of the purely commercial, California’s common law right of publicity is less likely to apply.

DAMAGES

A plaintiff can simultaneously pursue claims for violations of both the common law and the statute. Cal. Civ. Code § 3344(g). The statute entitles a victorious plaintiff to the “actual damages suffered,” as well any of the defendant’s profits that “are attributable to the use.” Punitive damages “may” be awarded under the statute; California law limits punitive damages to cases of “oppression, fraud, or malice.” Cal. Civ. Code § 3294. The winning side in a statutory case “shall” receive his/her attorney’s fees and costs.

Damages are not limited strictly to the financial harm suffered by a plaintiff. Courts may also take into account “injury to peace, happiness, and feelings,” as well as “injury to goodwill, professional standing, and future publicity value.” See Waits v. Frito-Lay, 978 F.2d 1093, 1102-03 (9th Cir. 1992).

LIMITATIONS ON BOTH THE STATUTORY AND COMMON LAW RIGHTS

Relationship with Copyright Law

A right of publicity claim (either statutory or under the common law) fails if it is too similar to a copyright claim; in such a case, the state right-of-publicity law is preempted by federal copyright law. For example, in Laws v. Sony Music, 294 F.Supp.2d 1160 (C.D. Cal. 2003), Sony licensed one of the plaintiff’s songs and sampled it in a new recording. The plaintiff tried to bring a right of publicity claim, but the court ruled that Sony’s use of a licensed recording fell under copyright law, thus preempting the state claim. Generally speaking, if the allegedly-infringing use of a person’s identity primarily involves use of copyrighted work, there is a chance that the state-law claim will be preempted.

First Amendment Limitations

The First Amendment also limits the extent to which rights of publicity can limit speech about matters of public interest. As one case put it, “[u]nder the First Amendment, a cause of action for appropriation of another’s name and likeness may not be maintained against expressive works, whether factual or fictional.” Daly v. Viacom, 238 F. Supp. 2d. 1118, 1123 (N.D. Cal. 2002).

As mentioned above, the California statute contains exceptions for uses related to news, public affairs, sports, and politics. Courts often focus on this statutory safe harbor, instead of the First Amendment directly, when confronting statutory right-of-publicity claims. See, e.g., Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 415-17 (Cal. Ct. App. 2001).

The First Amendment is more often directly relevant in common law right of publicity cases, since there is no statutory safe harbor. But since cases often involve both common law and statutory claims, the First Amendment analyses often cover both the statute and the common law. For example, in Daly v. Viacom, the court ruled that use of the plaintiff’s likeness in advertisements for a television show, using footage from the show in which the plaintiff appeared, was protected as part of an expressive work. That case involved both common law and statutory claims.

The 9th Circuit has suggested that cases involving "noncommercial" uses (meaning, the use contains some expression and does not "simply advance a commercial message") receive heightened First Amendment scrutiny. If the plaintiff is a public figure, he/she "can recover damages for noncommercial speech from a media organization . . . only by proving 'actual malice' " in so far as the noncommercial use was "intended to create [a] false impression in the minds of [the] readers." Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186-87 (9th Cir. 2001). The full extent of the "actual malice" standard's applicability in right of publicity cases remains unclear, however.

Statute of Limitations

Both the statutory and common law right of publicity claims are subject to a two-year statute of limitations. Christoff v. Nestle USA, Inc., 213 P.3d 132, 135 (Cal. 2009). The Ninth Circuit has held that, for material appearing on a website, the statute is not retriggered every time aspects of the website are amended or revised; rather, the statute is only retriggered if "the statement itself is substantively altered or added to, or the website is directed to a new audience." Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012).

This page covers legal information specific to the District of Columbia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Washington D.C. courts recognize a common law claim for misappropriation of another's name or likeness. D.C. courts do not distinguish between right of publicity and misappropriation but merge the two under a claim for misappropriation. D.C. has no corresponding statute.

THE COMMON LAW RIGHT

What the Common Law Right Protects

Washington D.C. has adopted the Restatement (Second) of Torts § 652C for a claim of misappropriation/right of publicity, which provides that "[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."

The required elements for a misappropriation claim are:

1. An unauthorized use of the plaintiff's identity or persona, that is
2. For the use or benefit of the defendant.

Evidence that the defendant profited from the unauthorized use of the plaintiff's name or likeness is insufficient to prove liability in a misappropriation action. Instead, the plaintiff must prove not only that the defendant derived a benefit from the plaintiff's identify but also that there is a public interest or other value in that name or likeness. If there is no recognizable value associated with the name or likeness of the plaintiff, a misappropriation claim will fail. In Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985), a plastic surgeon displayed "before and after" photographs of a patient's face. While the photos were on display for the public, the court held that a claim for misappropriation failed because the patient's identity was not revealed and because the patient did not prove that there was public interest or other value in her face or likeness.

However, a misappropriation claim may succeed even if the plaintiff's name or likeness does not have specific commercial value, if it nevertheless has some other kind of "value" that the defendant has turned to his own benefits and purposes. Tripp v. United States, 257 F. Supp. 2d 37, 43 (D.D.C. 2003) (finding that plaintiff's notoreity might have "value" for certain purposes).

In Polsby v. Spruill, 1997 U.S. Dist. LEXIS 11621 (D.D.C. Aug. 1, 1997), the plaintiff claimed that an author had based a main character in his novel on the plaintiff's life. The court ruled that the plaintiff had failed to meet her burden of proof because she had presented no evidence that the defendant knew her or knew about her prior to outlining his novel and because there were more differences than similarities between the plaintiff's life and the novel's main character's life.

Damages

In D.C., there are no cases interpreting damages for a misappropriation claim. If D.C. considers a misappropriation claim to be based on a privacy interest, damages may resemble those awarded for public disclosure of private facts. These may include general damages, special damages, or punitive damages.

General damages may be available to a plaintiff who has suffered emotional distress or personal humiliation if his private life is given publicity. Vassialiades, 492 A.2d at 594. Such damages are available only if such distress or humiliation would normally occur after an invasion on that individual's privacy. The harm also has to be of a normal and reasonable extent.

Special damages for a claim of invasion of privacy may include harm to a plaintiff's commercial interests. In Black v. United States, 389 F. Supp. 529, 538 (D.D.C. 1975), the plaintiff successfully recovered special damages on a publication of private facts claim after the FBI electronically eavesdropped and passed information to the Department of Justice.

Punitive damages are meant to punish for an invasion of privacy when a person's conduct is "malicious, wanton, reckless, or in willful disregard for another's rights." Vassialiades, 492 A.2d at 593. Courts are reluctant to award punitive damages; a high burden is placed on the plaintiff to show that punitive damages are supported by "evidence of record and the law." Id. at 593.

Limitations and Defenses

There are two First Amendment defenses that the D.C. courts recognize to a misappropriation claim: the newsworthiness privilege and the incidental use privilege.

The newsworthiness privilege applies to "advertisements for books, films, and other publications concerning matters of public interest." Lane v. Random House, 985 F. Supp 141, 146 (D.D.C. 1995). If a person's identity or likeness has "no real relationship" to the publication at issue, the newsworthiness privilege will fail.

The incidental use privilege protects against liability when an individual's name or likeness is used in connection with that person's public activities. Under this privilege, a person's likeness "is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities." Lane, 985 F. Supp at 147 (quoting Restatement (Second) of Torts § 652C, comment d (1977)). Further, incidental use "for a purpose other than taking advantage of a person's reputation or the value associated with his name will not result in actionable appropriation." Vassiliades, 492 A.2d at 592. In Klein v. McGraw-Hill, 263 F. Supp. 919 (D.D.C. 1966). the plaintiff became a public figure by making advances in the field of photography; the defendant publisher used the plaintiff's name and photograph in a book sold for profit. The court held that such use was incidental in light of the plaintiff's public activities.

Statute of Limitations

Under D.C. Code § 12-301, there is no specific statute of limitations for a misappropriation claim. The general statute of limitations is 3 years. D.C. Code § 12-301(8). If misappropriation is asserted in connection with another claim based on the same facts for which there is a prescribed statute of limitations, the court will likely apply that statute of limitations to the misappropriation claim. Mittleman v. United States, 104 F.3d 410 (D.C. Cir. 1997).

This page covers legal information specific to the State of Florida. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the right of publicity in Florida protects against unauthorized uses of a person's name or likeness for commercial purposes. Florida has two systems of rights of publicity: a statute, and a common law right.

Florida codifies its statutory right of publicity, treated primarily as a property right, at Section 540.08, with which you should familiarize yourself. Florida also recognizes a common law right of publicity under a right of privacy.

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Florida's statutory right of publicity creates a property right held by an individual in his or her name and likeness. See Loft v. Fuller, 408 So.2d 619 (Fla. Dist. Ct. App. 1981). Florida's statute, Fla. Stat. Ann. § 540.08, protects a person's:

• name
• portrait
• photograph, and
• likeness.

The term "photograph" includes still or moving pictures or reproductions of an individual. See Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); see also Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Badillo v. Playboy Entm't Group, Inc., 2006 WL 785707 (M.D. Fla. Mar. 28, 2006). The individual must be identifiable in the photograph, and not merely a member of the public who is unnamed and not otherwise identified in connection with the use of the photograph. Fla. Stat. Ann. § 540.08(4)(c).

This statute and its interpretations by Florida courts have not formally recognized the protection of an individual's voice, though it is possible that "likeness" would include this. See Neva, Inc. v. Christian Duplications Int'l, Inc.,  743 F. Supp. 1533 (M.D. Fla. 1990) (suggesting that an actor's voice in a recording might be within the scope of § 540.08).

What Constitutes a Statutory Violation

Florida's statute protects against unauthorized commercial uses of an individual's name or likeness. Specifically, the statute provides that,

"No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without ... express written or oral consent."

Fla. Stat. Ann. § 540.08(1).

In Tyne v. Time Warner Entertainment Co., the Florida Supreme Court held that to find a violation of the right of publicity statute, the use must be for the defendant's benefit and done to promote a product or service, not merely for expressive purposes. See Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); see also Almeida v. Amazon.com, Inc., 456 F.3d 1316 (11th Cir. 2006); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983). 

Simply using a person's likeness in connection with a commercial product or service does not violate the statute. Rather, the statute is designed to "prevent the unauthorized use of a name to directly promote the product or service of the publisher." Tyne v. Time Warner Entm't Co., L.P., 901 So.2d 802 (Fla. 2005); see also Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). Inclusion in a product sold for profit is insufficient to constitute an unauthorized use under this statute, as there must be a demonstration the association of the name with the product is valuable and exploitative. See Valentine v. C.B.S., Inc., 698 F.2d 430 (11th Cir. 1983); Fuentes v. Mega Media Holdings, Inc., 721 F. Supp. 1255 (S.D. Fla. 2010); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). The publication or printing of a product for advertising purposes has been found sufficient to constitute a statutory violation, even when there was no distribution. Weinstein Design Group, Inc. v. Fielder, 884 So. 2d 990 (Fla. Dist. Ct. App. 2004).

Florida's statute also contains exceptions for news media and prior consent, including:

• news media including newspapers, magazines, books, broadcasts, news reports, or presentations having a legitimate public interest and the use is not for advertising purposes, and
• publications connected with the resale or other distribution of literary, musical, or artistic productions or other property where the person has consented to the use of their likeness with the initial sale or distribution.

Fla. Stat. Ann. § 540.08(4).

Florida has also recognized Section 47 of the Restatement (Third) of Unfair Competition, finding exceptions for uses including "news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses." See Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d 1352 (N.D. Fla. 2010); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 204 F. Supp. 2d 1338 (M.D. Fla. 2002); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802 (Fla. 2005).

Rights of the Deceased

Florida provides that this right of publicity lasts for 40 years after the death of the individual, and is considered a freely transferable, licensable, descendible property right. The substance of the right is the same before and after death.

Any person, firm or corporation may be authorized in writing to license the commercial use of an individual's name or likeness. Fla. Stat. Ann. § 540.08(1). If no such entity is authorized in writing, then the right belongs to the individual's surviving spouse and children. Fla. Stat. Ann. § 540.08(1). An individual's spouse is determined by the domicile's law the time of the individual's death, regardless of the spouse's later remarriage. Children includes immediate offspring as well children legally adopted by the individual. Fla. Stat. Ann. § 540.08(6).

THE COMMON LAW RIGHT

What the Common Law Right Protects

In Florida, the common law right of publicity, including the right not to have a person's name published without his or her consent, was first recognized as part of a right of privacy. See Cason v. Baskin, 20 So. 2d 243 (Fla. 1944); see also Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).

The common law right of publicity extends to any individual whose name or likeness has been exploited through unauthorized use during his or her lifetime. See Gridiron.com v. National Football League Player's Ass'n, 106 F. Supp. 2d 1309 (S.D. Fla. 2000); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). The common law right is meant to protect the privacy and integrity of an individual's name and likeness, because "Nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it." Battaglia v. Adams, 164 So. 2d 195 (Fla. 1964).

Like the statutory right, the common law right of publicity recognizes exceptions for news reporting and for authorized publishers and distributors of a work to use an individual's name to truthfully identify the work's creator. See Zim v. Western Publishing Co., 573 F.2d 1318 (5th Cir. 1978); Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955). 

What Constitutes a Violation of the Common Law Right

As with the statutory right of publicity, a violation of the common law right of publicity is found when an individual's name or likeness is used without his or her consent for the benefit its value would confer on the defendant. See Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996); see also Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994).

DAMAGES

As the right of publicity has been formally recognized by statute in Florida, decisions generally cite the statutory right over the common law right. See Facchina v. Mutual Benefits Corp., 735 So. 2d 499 (Fla. 4th Dist. Ct. App. 1999). However, the statutory right does not displace common law rights, so a plaintiff can simultaneously pursue claims under both the statute and common law. See Fla. Stat. Ann. § 540.08(6).

Under the common law right of publicity, a plaintiff may be awarded nominal damages for the unauthorized use of his or her name without proving actual harm or damage. See Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir.1978); see also Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).

Under Florida's right of publicity statute, a plaintiff may bring an action for an injunction and to recover damages to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages." Fla. Stat. Ann. § 540.08(2). A victorious plaintiff may receive prejudment interest on the damages awarded. See Bosem v. Musa Holdings, 46 So. 3d 42 (Fla. 2010).

LIMITATIONS AND DEFENSES

Both the common law and statutory rights of publicity recognize consent as a defense when the individual consents to the use of his or her name or likeness. See v. Anheuser Busch, Inc., 348 F. App'x 547 (11th Cir. 2009); Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002); National Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983); Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).

In addition, all right of publicity claims are limited by the First Amendment. See Valentine v. CBS, Inc. 698 F.2d 430 (11th Cir. 1983); Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981). As discussed above, the statutory right of publicity includes a safe harbor for press coverage of legitimate public interest at § 540.08(4) and the common law recognizes similar protection of news reporters. See Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955).

The common law and statutory rights of publicity are subject to a four-year statute of limitations under Florida's general statute for claims whose limitations period is not specifically enumerated in other statutes. Fla. Stat. Ann. § 95.11.

This page covers legal information specific to the State of Georgia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Georgia's courts have developed a common law right of publicity. The state has no corresponding statute. Various court decisions refer to the "right of publicity," "misappropriation of likeness," and similar terms. The Supreme Court of Georgia's 1982 decision in Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc. is a good place to begin; you should familiarize yourself with that case.

What is protected?

Georgia's right of publicity protects a person's name and likeness. A few relevant appellate court decisions help contextualize "name and likeness." In King v. Heritage Products, the Georgia Supreme Court held:

[T]he appropriation of another's name and likeness, whether such likeness be a photograph or sculpture, without consent and for financial gain of the appropriator is a tort in Georgia.

King, 296 S.E. 2d 697, 703 (citations removed). In King, the defendants were producing and selling plastic busts of Dr. Martin Luther King, Jr., without the consent of Dr. King's estate. The Georgia Supreme Court held that conduct was a violation of Dr. King's right of publicity, which could be enforced by his estate.

In an earlier case, Cabaniss v. Hipsley, 151 S.E. 2d 496 (Ga. Ct. App. 1966), the Georgia Court of Appeals recognized the right of publicity as a part of the more general right to privacy. The Cabaniss court ruled that the unauthorized use of the plaintiff's photograph in an advertisement for the Atlanta Playboy Club violated the plaintiff's right of publicity, even if the photograph was published by mistake.

Most right of publicity cases in Georgia have involved photographs (as in Cabaniss) or obvious likenesses (as in the King busts). But as a common law doctrine, Georgia's right of publicity is not necessarily limited strictly to these categories. The state's courts could continue to expand the meaning of "name and likeness" in subsequent cases. In 2009, the U.S. Court of Appeals for the Eleventh Circuit (the federal judicial circuit in which Georgia is located) cited California's right of publicity law with approval in Toffoloni v. LFP Publishing, 572 F. 3d 1201, 1208 n.2 (11th Cir. 2009), so other states' right of publicity doctrine might be persuasive in Georgia courts.

Right of deceased persons

In King, the Georgia Supreme Court held that the right of publicity survives death, can be enforced by the deceased's estate, and is fully inheritable and devisable. The court did not specify the duration of the posthumous right of publicity, and to date no other court decision has dealt with the question of when (or if) the right expires.

What constitutes a violation?

Georgia's right of publicity protects against unauthorized uses of a person's identity "for financial gain." The King defendant's sale of plastic busts was considered commercial, as was the advertising use in Cabaniss. In Alonso v. Parfet, the Georgia Supreme Court further ruled that use of a person's name on "various forms and documents" used in the course of business could establish a violation. 325 S.E. 2d 152 (Ga. 1985).

But Georgia's right of publicity is limited by "newsworthiness." In the 1956 case Waters v. Fleetwood, the Georgia Supreme Court stated that

where an incident is a matter of public interest, or the subject matter of a public investigation, a publication in connection therewith can be a violation of no one's legal right of privacy.

91 S.E. 2d 344, 348. Though Waters focuses on the "right of privacy," courts have used the newsworthiness test in right of publicity cases. In Toffoloni, the Eleventh Circuit summarized the test as follows:

[W]here a publisher may be precluded by the right of publicity from publishing one's image for purely financial gain, as in an advertisement, where the publication is newsworthy, the right of publicity gives way to freedom of the press.

There is no clear test for determining what qualifies as "a matter of public interest," but with respect to this question the Eleventh Circuit has pointed to California case law as instructive, ruling that the use of the plaintiff's identity must be actually related to the incident or issue with which the public is concerned. Therefore, the Toffoloni defendants were held liable for publishing previously-taken nude photographs of a recent murder victim; the Eleventh Circuit ruled that the photographs "were in no conceivable way related" to the newsworthy event (the murder). In contrast, the Waters defendants were protected from liability when they published photographs of a murder victim's corpse, because those photographs were related to the matter of public interest. Therefore there must be some kind of reasonable connection between the newsworthy event and the use.

Remedies

Money damages are limited to "the value of the use of the appropriated publicity." Toffoloni, at 1206. Georgia treats the right of publicity as a "proprietary" right, meaning general damages for claims such as emotional distress are not available. (Other privacy-related torts, if applicable, might allow for collection of general damages.)

Injunctive relief is available to plaintiffs. Punitive damages may also be available, if there is evidence of "wrongdoing, fault, wrongful motive or state of mind" on the defendant's part. Cabaniss, at 508.

Statute of limitations

Georgia's right of publicity claim is subject to a two-year statute of limitations for personal injury claims. Rivell v. Private Health Care Sys., Inc., 887 F. Supp. 2d 1277, 1284 (S.D. Ga. 2012) (citing O.C.G. § 9-3-33).

This page covers legal information specific to the State of Illinois. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Illinois' right of publicity statute, the Right of Publicity Act, is codified at 765 ILCS 1075. You should familiarize yourself with the statute, especially sections 5 (which defines the key terms of the statute) and 35 (which lists the primary exceptions to the right of publicity). Illinois no longer recognizes a distinct common law right of publicity.

What is protected?

The Right of Publicity Act, at § 30, protects "an individual's identity."

Section 5 defines the key terms. An "individual" is defined as a "natural person," meaning that the Right of Publicity act does not protect the names of businesses or other legal entities.

The statute defines "identity" broadly:

"Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.

At least one federal district court has noted that the Act's definition of "identity" is broad and promotes "an expansive approach" when deciding what counts as identity. Muzikowski v. Paramount Pictures Corp, 2003 WL 22872117, at *6 (N.D. Ill., Dec. 3, 2003) (not reported). While there does not appear to be appellate case law on the subject, the statute's definition of "identity" suggests a two-step approach:

1. Did the defendant use an "attribute" of the plaintiff? 
2. Would that attribute "identify" the plaintiff to an ordinary, reasonable person?

Section 5 of the Act also defines "name," one of the listed attributes that can constitute "identity." The statute protects an individual's "actual name," as well as any "other name by which an individual is known that is intended to identify that individual." This would appear to provide protection to assumed names, stage names, and the like, as long as the individual is sufficiently "known" by that name.

Rights of deceased persons

Section 30(b) of the Right of Publicity Act protects an individual's identity for 50 years after death, if the person died after the date the statute went into effect. The Right of Publicity Act went into effect on January 1, 1999. Illinois' earlier common law right of publicity did not provide protection after death. Carlson v. Del Pub. Co., 213 N.E. 2d 39 (Ill. App. Ct. 1965). Therefore, the identities of people who died before 1999 are unprotected in Illinois.

What constitutes a violation?

The Right of Publicity Act protects against unauthorized "commercial" uses of an individual's identity. Section 5 defines use for a "commercial purpose" as a "public use" for the purpose of: (i) offering the sale of products, services, etc. (ii) advertising or promoting products, services, etc.; or (iii) fundraising.

Use of a person's identity in private documents, even if used for a commercial purpose, is not "public" and is not a violation of the Act. See MetLife v. Seldman, 734 F. Supp. 2d 304, 311-12 (E.D.N.Y. 2010).

Most of what qualifies as a "commercial" use is intuitive. Using a person's picture on product packaging, Leto v. RCA Corp., 341 F. Supp. 2d 1001 (N.D.Ill. 2004), and using a person's image to falsely imply endorsement of a product, Trudeau v. Lanoue, 2006 WL 516579 (N.D. Ill. March 2, 2006) (not reported) have both been found to be "commercial." If the use is tied to advertising, it risks right-of-publicity liability.

One federal district court has noted the differences between protection for commercial and non-commercial speech under the First Amendment, in connection with the question of whether First Amendment protection for non-commercial speech would trump the Right of Publicity Act.  Jordan v. Jewel Food Stores, Inc., 2012 WL 512584 (N.D. Ill. February 15, 2012). It is not clear from the decision, however, whether the judge connected the statutory definition of commercial use under the Right of Publicity Act to the constitutional concept of commercial speech.

Exceptions and the First Amendment

The Right of Publicity Act contains a number of specified exceptions designed to protect First Amendment interests. Specifically, § 35(b) lists five exceptions:

1. Using a person's identity to portray that person in a work of art (such as a painting, play, movie, song, etc.) is protected, as long as the work of art is not "in and of itself a commercial advertisement."
2. Uses for non-commercial purposes are exempt. This exception includes news reports, sports, public affairs, and political campaigns.
3. The statute allows use of an author's name in connection with her work (but only if the use is truthful).
4. Advertisements for any of the above exceptions are also exempt. Therefore, even though an advertisement is "commercial," if it is advertising an exempted use (such as a billboard for a protected film) there is no violation of the right of publicity.
5. There is also an exception for professional photographers, to allow them to display their work at their place of business.

Courts have described these various exceptions as important protections for First Amendment rights. See, e.g., Collier v. Murphy, 2003 WL 1606637 (N.D. Ill. March 26, 2003) (not reported). However, these exceptions do not define the limit of First Amendment protection; conduct that falls outside of the statutory exceptions may still be constitutionally protected. In Christianson v. Henry Holt and Co., 2007 WL 2680822 (C.D. Ill. June 29, 2007) (not reported), the defendants used a picture of the plaintiff on a book jacket, even though the plaintiff was not a subject of the book. The district court ruled that the defendants' conduct did not fall under the first or second exceptions listed above, because the plaintiff was not portrayed, or even mentioned, in the book. But the court then stated that "the fact that Plaintiff's claim does not fit within one of the elucidated exception[s] to the [Right of Publicity Act] does not end the inquiry," and went on to consider whether the use of the plaintiff's image was protected by the First Amendment as an expressive choice in the context of the book. Although the court eventually ruled against the defendants on this issue, finding no link between the subject of the book and the plaintiff's picture, the court's analysis indicates that a separate First Amendment defense may exist for some expressive uses of an individual's image.

Remedies

Section 40 of the Act provides from monetary relief. A victorious plaintiff can collect both their actual damages and the defendant's profits that result from the violation. The minimum monetary award is $1,000. A plaintiff can claim both "personal" damages and "commercial" damages. See Villalovos v. Sundance Associates, 31 Media L. Rep. 1274, 2003 WL 115243, at *5 (N.D. Ill. January 13, 2003). Punitive damages are also available for willful violations.

Section 50 allows courts to issue "appropriate" injunctive relief. The court can also, in its discretion, award the winning side attorney's fees and court costs. See § 55.

Statute of limitations

Right of publicity claims under the Illinois statute are subject to a one-year statute of limitations. Blair v. Nevada Landing P'ship, 859 N.E.2d 1188, 1192 (Ill. App. 2d Dist. 2006).

This page covers legal information specific to the State of Indiana. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Indiana has two systems of right of publicity law: a statutory right protecting a property interest, and a common law privacy right.

Indiana codifies its statutory right of publicity in Ind. Code § 32-36-1. You should first familiarize yourself with the statute.

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Indiana’s statutory right of publicity is found under Indiana Code Title 32, Section 36-1. The statute defines “right of publicity” as a property interest belonging to a “personality.” Under the Indiana statute, a “personality” is a living or deceased natural person (not a corporation or other legal entity) who possesses specific qualities with commercial value.  Specifically, the statute protects a personality’s:

• name,
• voice,
• signature,
• photograph,
• image,
• likeness,
• distinctive appearance,
• gestures, and
• mannerisms.

Ind. Code § 32-36-1-6. 

Indiana’s right of publicity statute protects against the use of these protected aspects “for a commercial purpose” during the  personality’s lifetime and after death. The right of publicity lasts for 100 years after the death of the individual and applies to those who died before the statute’s enactment in 1994. 

The statute defines “commercial purpose” as the use of an aspect of a personality’s right of publicity in any of the following ways:

• on or in connection with a product, merchandise, goods, services, or commercial activities.
• for advertising or soliciting purchases of products, merchandise, goods, services, or for promoting commercial activities.
• for the purpose of fundraising.

Ind. Code § 32-36-1-2. 

The term “name” means “the actual or assumed name of a living or deceased natural person that is intended to identify the person.” Ind. Code § 32-36-1-3. As a result, the statute would apply to performers’ stage names as well as their birth names.

Who Can Exercise the Statutory Right of Publicity? 

As property rights, a personality’s rights of publicity recognized under Indiana’s statute are freely transferable and descendible, in whole or in part, by:

• contract,
• license,
• gift,
• trust,
• testamentary document, or
• operation of the applicable state laws of intestate succession.

Ind. Code § 32-36-1-16. If, after death, a personality’s rights have not been transferred by one of the above means and he or she has no survivors, any rights that have not been vested are terminated. A personality or a person to whom the recognized rights of a personality have been transferred may bring action under the statute. Ind. Code § 32-36-1-17.

What Constitutes a Statutory Violation?

The statute only applies to “an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship.” Ind. Code § 32-36-1-1. A claim for a violation can be asserted only if the alleged act or event of violation occurred after June 30, 1994. A person, partnership, firm, corporation or an unincorporated association violates Indiana’s right of publicity statute when it:

• without written consent, uses an aspect of a personality’s right of publicity for a commercial purpose in Indiana;
• creates or causes the creation in Indiana of goods, merchandise, or other materials prohibited under the statute;
• transports or causes to be transported into Indiana goods, merchandise, or other materials created or used in violation of the statute; or
• knowingly causes advertising or promotional material created or used in violation of the statute to be published, distributed, exhibited, or disseminated within Indiana.

THE COMMON LAW RIGHT

What the Common Law Right Protects

Indiana common law recognizes an invasion of privacy claim for misappropriation of an individual’s name or likeness, with the Indiana Supreme Court noting that the tort focuses on an individual’s right to be left alone. Doe v. Methodist Hospital, 690 N.E.2d 681, 684 (Ind. 1997). A person’s name or likeness “embraces the concept of a person's character, which is legally protected against appropriation by another for his own use or benefit.” Felsher v. University of Evansville, 755 N.E.2d 589, 601 (Ind. 2001). For these reasons, a person can likely assert the common law right without evidence that their name, etc., has any particular commercial value.

In Doe, the Court defined the tort of invasion of privacy as the “unwarranted appropriation or exploitation of one's personality . . . in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilit[ies].” Doe, 690 N.E.2d at 685–6. 

Although “an appropriation claim involves a privacy issue in the nature of a property right,” because the tort protects a right of privacy, this cause of action cannot be brought by a corporation. Felsher, 755 N.E.2d at 593–4. 

What Constitutes a Violation of the Common Law Right?

Indiana courts have adopted the elements for misappropriation from the Restatement (Second) of Torts. Therefore, “an appropriation and use of a plaintiff’s name or likeness occurs whenever the defendant ‘makes use of the plaintiff's name or likeness for his own purposes or benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.’” Felsher v. University of Evansville, 727 N.E.2d 783 (Ind. Ct. App. 2000) (rev’d on other grounds) (quoting Restatement (Second) of Torts § 652I cmt. B (1977)).

In Felsher, the Indiana Supreme Court found that a professor had misappropriated the names and likenesses of the University of Evansville and university employees when he created websites and email addresses containing the plaintiffs’ names and used them “for the sole purpose of harming the [plaintiffs’] reputation[s].” 755 N.E.2d at 597. The Court held that the misappropriation was for the professor’s benefit because it “enabled him to pursue a personal vendetta.” Id. at 600. The Indiana Appeals Court has also noted that the unauthorized use of photographs of a person for commercial purposes is generally actionable as an invasion of privacy. Continental Optical Co v. Reed, 86 N.E.2d 306 (Ind. Ct. App. 1949).

DAMAGES

Statutory

For claims brought under Indiana’s statutory right of publicity, the statute provides for the following remedies, with some exceptions for news and entertainment media:

• actual damages that include profits stemming from the unauthorized use or $1,000, whichever is greater;
• treble or punitive damages for knowing, willful or intentional violations;
• reasonable attorney’s fees, costs and expenses;
• temporary or permanent injunctive relief; and
• impoundment, destruction or other disposition of violating goods or items from which violating goods could be reproduced or manufactured. 

Indiana’s statute explicitly states that the above remedies are supplemental to any other remedies provided by law. Ind. Code § 32-36-1-20.

Common Law

Under Indiana law, damages for an invasion of privacy claim can include, but are not confined to, “compensation for the embarrassment, humiliation and mental pain [that] a person of ordinary sensibilities would have suffered under the circumstances.” Continental Optical, 86 N.E.2d at 309. Indiana law also allows for special damages that naturally flow from the tort as well as injunctive relief. Id. at 309–10; Felsher, 755 N.E.2d at 599–601.

LIMITATIONS AND DEFENSES

Statutory

Indiana’s right of publicity statute explicitly states that it “does not affect rights and privileges recognized under any other law that apply to a news reporting or an entertainment medium,” such as free speech privileges. The statute further states that its use prohibitions do not apply to uses in any of the following:

• literary works, theatrical works, musical compositions, film, radio, or television programs.
• material that has political or newsworthy value;
• original works of fine art;
• advertisements for a news reporting or an entertainment medium that uses at least part of the medium’s own past edition and does not suggest that a personality endorses that medium; or
• advertisements for the above uses.

The statute also does not apply to the use of:

• a personality’s name to truthfully identify that personality as an author or performer in a rightfully reproduced, exhibited or broadcast work;
• a protected aspect as related to public interest; or
• a protected aspect if that aspect has commercial value only because of the personality’s criminal charge or conviction.

Ind. Code § 32-36-1-1.

Common Law

In Time, Inc. v. Sand Creek Partners, L.P., a federal district court stated that “[i]n general, when a person's picture is used to illustrate a non-commercial, newsworthy article, his interest in the use of his likeness or image must be evaluated in light of constitutional interests found in the First Amendment.” 825 F. Supp. 210, 212 (S.D. Ind. 1993). In Time, after broadly construing “newsworthiness,” the court held that the photographs of two widely known celebrities on their wedding way illustrated a newsworthy event of widespread public interest; therefore, the newsworthiness that the images depicted outweighed any privacy rights of the celebrities. Id. at 212–13.

The Indiana Appeals Court recognized that the right of privacy can be waived. Continental Optical, 86 N.E.2d at 309. In Continental Optical, the court noted that the right is waived by consent, either express or implied, and may also be relinquished by an individual who “enters a business or calling which gives the public a legitimate interest in his character, activities and affairs.” Id.

STATUTE OF LIMITATIONS

A common law claim for misappropriation is subject to a two-year statute of limitations. Ind. Code § 34-11-2-4 (stating that an action for injury to person or character must be brought within two years); Johnson v. Blackwell, 885 N.E.2d 25 (Ind. Ct. App. 2008) (applying a two-year statute of limitations to an invasion of privacy claim). A two-year statute of limitations would also likely apply to statutory right of publicity claims. Ind. Code § 34-11-2-4 (stating that an action for injury to personal property must be brought within two years).

This page covers legal information specific to the State of Massachusetts. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Massachusetts codifies its Right of Publicity law at Chapter 214, § 3A of the General Laws. You should first familiarize yourself with that statute. Massachusetts does not recognize a separate common law right of publicity.

What is protected?

Section 3A protects a person's "name, portrait or picture". There is a paucity of cases specifying the precise limits of this phrase; in other contexts, however, courts have acknowledged that the Massachusetts statute is very similar to New York's. See, e.g., Old Colony Donuts, Inc. v. American Broadcasting Companies, Inc., 368 F. Supp. 785, 788-89 (D. Mass. 1974). Thus, New York cases interpreting these terms may be persuasive to Massachusetts courts.

Rights of deceased persons

Massachusetts has no appellate case law on this point. However, at least one Massachusetts trial court has ruled that the right of publicity only applies to living persons. Hanna v. Ken's Foods, Inc., 2007 WL 1695311, at *1 n. 4 (Mass. App. Ct., June 12, 2007) (unpublished opinion) (noting that the trial court dismissed plaintiff's § 3A claim on living-persons ground that plaintiff was not a living person, and that the issue was not appealed).

What constitutes a violation?

To violate § 3A, a use of a person's identity must be:

• within Massachusetts; 
• for advertising or trade purposes; and 
• without written consent.

The statute focuses on a person's "interest in not having the commercial value of one's name, portrait or picture appropriated for the benefit of another." Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749 (1980). Thus, courts applying § 3A look to whether the defendant's actions exploited the value of the plaintiff's identity.

Section 3A contains some specific exceptions. One gives added protection to professional photographers: photographers may exhibit their photographs at their "establishment," until the subject of the photograph provides written notice. If the photographer continues to display the subject's photograph after receiving such notice, the photographer may be liable for violating § 3A. Other statutory exceptions include the right to use an author's name in connection with her work, and the right to use a person's identity to sell goods, if that person uses her identity in connection with the manufacture or distribution of those goods.

In practice, the primary limit on the right of publicity is known as "incidental use." If the defendant's use of a person's identity is only incidental to other purposes, and not intended to profit off of the person's "reputation, prestige, or other value," there is no violation of § 3A. Id. In Tropeano, the seminal Massachusetts Supreme Judicial Court case establishing the "incidental use" standard, the defendant magazine used a picture of several people (including the plaintiff) to illustrate a news story. The story was not an advertisement of any kind, and there was no evidence that the defendants intended to profit from the plaintiff's identity (notably, the plaintiff was not identified in the photograph). Thus, the use of the plaintiff's photo was "incidental," regardless of the magazine's profit-seeking motive.

A number of trial courts, both state and federal, have used Tropeano's incidental use test to dismiss claims that arise from various news stories and other non-advertising purposes. See, e.g., Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004), aff'd sub nom., Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005) (dismissing § 3A claim arising from photo & caption in book); Morrell v. Forbes, Inc., 603 F. Supp. 1305 (D. Mass. 1985) (dismissing § 3A claim arising from photo in news magazine).

In deciding how broadly to construe the "advertising or trade" language, Massachusetts courts have been skeptical of analogies to New York case law. Massachusetts's statute does not apply to "peace of mind"-type privacy harms; the focus is strictly on the commercial value of a person's identity, and whether the defendant has appropriated that value. This is arguably distinct from New York's statute, which is codified under a broader "right of privacy." Tropeano, 379 Mass. at 748-49. Thus, while (as mentioned above) New York cases may be persuasive to Massachusetts courts in some circumstances (such as defining "name, portrait or picture"), New York analogies for interpreting "advertising or trade" may be less useful.

Damages

Section 3A provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. If a plaintiff is able to show the necessary commercial use of her identity (see above), the damage award may include compensation for "mental distress." See Polich v. Rafferty, 1997 WL 89152, at *10 (Mass. Super. Ct., February 10, 1997) (unreported).

Section 3A also states that if the defendant "knowingly" used the plaintiff's protected identity, the trial court has discretion to award treble damages.

Statute of limitations

Right of publicity claims in Massachusetts are subject to a three-year statute of limitations. Mass. Gen. Laws c. 260, § 2A.

This page covers legal information specific to the State of Michigan. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Although no state appellate court in Michigan has yet explicitly recognized a common law right of publicity, the U.S. Court of Appeals for the Sixth Circuit has opined that such a right would be recognized under Michigan law. In addition, Michigan's state appellate courts have recognized comparable protection in the nature of a property right under its "appropriation" tort. The state has no corresponding statute.

Publications and political organizations concerned about infringing on a plaintiff's right of publicity should note that state appellate courts have interpreted the First Amendment to protect a broad range of speech from appropriation claims. For more detail, consult the First Amendment section below.

What is protected?

The Sixth Circuit has suggested that Michigan would recognize a right of publicity to protect a person's ‘identity' in addition to their name and likeness. It would therefore be possible to violate Michigan's common law right of publicity without employing a person's photo or name. In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the U.S. Court of Appeals for the Sixth Circuit held that the use of an identifying catchphrase ("Here's Johnny") by a portable toilet company was enough to constitute an appropriation of Johnny Carson's identity under Michigan law. In fact, the court in Carson noted that the use of Johnny Carson's full name, John William Carson, would not have infringed on his right of publicity as it is distinct from his identity as celebrity.

In Battaglieri v. Mackinac Ctr. for Pub. Policy, 261 Mich. App. 296 (2004), the Court of Appeals of Michigan explained that under Michigan's tort of appropriation, "any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another."

What constitutes a violation of the common law right of publicity?

The U.S. Court of Appeals for the Sixth Circuit has suggested that Michigan would use a two part test to determine whether or not a violation of the right of publicity has occurred, in which the plaintiff must demonstrate:

1. "A pecuniary interest in her identity"
2. "That her identity has been commercially exploited by a defendant"

Parks v. LaFace Records, 329 F.3d 437, 460 (6th Cir. 2003). In Parks, civil rights hero Rosa Parks brought suit against the rap group Outkast for using her name in a song title. The court held that her claim passed both prongs of the test, because she had used her name in the past for promotional purposes, and because Outkast used her name to sell records.

It is unclear how meaningful the requirement of the first prong is. Some cases suggest it may bar a non-celebrity from bringing suit. In Edwards v. Church of God in Christ, No. 220348, 2002 WL 393577 (Mich. App. 2002), the Court of Appeals of Michigan held that "no cognizable tort for negligent misappropriation of an unknown singer's voice exists in Michigan." The scope of this holding is ambiguous, but it at least raises the possibility that a plaintiff's fame may be a pre-requisite to recovery. In Carson, similarly, the Sixth Circuit Court of Appeals focused on Johnny Carson's status as a celebrity, and noted that it was the basis for the pecuniary value of his identity, explaining that "a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity."

On the other hand, the very act of commercial exploitation may be sufficient to prove a plaintiff's pecuniary interest in their identity, meaning that satisfying the second prong of the test satisfies the first. In Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. App. 2009), a model sued a website for publishing her photo and sending it to a magazine without permission. The Court of Appeals of Michigan held that the act of publishing and sending the photo indicated that the model's identity had value, although it also acknowledged that her history as a dancer and model further supported the contention.

Parks and Carson demonstrate that the second prong does not require the defendant to sell or license the name for profit. Simply attaching the name to a product can constitute commercial exploitation.

Rights of the Deceased

The U.S. Court of Appeals for the Sixth Circuit recognizes Michigan's right of publicity as a property right as opposed to a dignitary right, which means that the right survives the death of the person. Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 325 (6th Cir. 2001). In Herman Miller, furniture manufacturer Herman Miller partnered with famous design Charles Eames to create a line of distinctive chairs. After Eames died, the Eames estate contractually assigned Eames's right of publicity to Miller. A rival furniture company, Palazzetti, tried to use the Eames name to sell its own version of the chair, claiming that Eames's right of publicity vanished on his death. The court disagreed, and held that the right of publicity still existed even after the designer himself died.

The decision in Herman Miller cites cases from other jurisdictions noting that the right of publicity is assignable to others. The case does not specify how long the right of publicity extends after death, nor does it appear that subsequent cases in Michigan have addressed this question. One can waive the right of publicity by signing a release. Hauf v. Life Extension Found., 454 Fed. Appx. 425, 431 (6th Cir. 2011).

First Amendment Defenses

First Amendment defenses have been historically recognized in Michigan as a limitation on a plaintiff's ability to bring a claim for appropriation or right of publicity. In Pallas v. Crowley, Milner & Co., 33 N.W.2d 911 (Mich. 1948), an early case that does not specifically discuss rights of publicity, the Supreme Court of Michigan held that a model had a cause of action against an advertiser for using her photograph without permission. Significantly, the Pallas opinion noted that the publication was for advertising and not news reporting, suggesting that the latter would not infringe on a right of publicity.

More recent state appellate cases suggest that a broad array of publications is thus protected from appropriation claims. In Battaglieri, a union leader claimed that a think tank had appropriated his identity by using his name and quote in its fundraising letters. The Court of Appeals of Michigan held that the fundraising letters were protected by the First Amendment because they contained information about public policy, the leader's name was only mentioned in the context of such policy, and the quote itself was made at a press conference. In Bowens v. Aftermath Entm't, No. 250984, 2005 WL 900603 (Mich. App. 2005), a group of city officials sued a group of musicians for publishing footage of a meeting between the two parties, claiming appropriation. The footage, depicting a dispute about the content of a particular live performance, was released as an extra on a popular DVD anthologizing the tour. The Court of Appeals of Michigan held that because the dispute was reported in the media, and because the plaintiffs in their capacity as public officials had a "real relationship" to the dispute, the musicians were protected by the First Amendment. The defendant's commercial interest in the sales of DVD did not prevent them from asserting their rights under the First Amendment. In each case, the opinion is careful to tie the plaintiff's identity to the matter of public interest.

The U.S. Court of Appeals for the Sixth Circuit similarly recognizes a First Amendment defense to right of publicity claims. In Ruffin-Steinback v. dePasse, 267 F.3d 457 (6th Cir. 2001), individuals depicted in a mini-series about the band The Temptations claimed that NBC had infringed on their right of publicity. The court held that "that the use of plaintiffs' fictionalized likenesses in a work protected by the First Amendment and the advertizing incidental to such uses" would be protected from claims for right of publicity.

However, such defenses are not always successful. In Parks the court explained that "we must conduct another balancing of interests -- Parks' property right in her own name versus the freedom of artistic expression." Ultimately the court held that the song title "Rosa Parks" did not necessarily merit First Amendment protection, as a jury could find that it was too far removed from the content of the song.

Remedies

Damages for right of publicity action can go up to a defendant's profits from the use of the name, plus costs. The court can also enjoin the defendant from further use of the name. Carson v. Here's Johnny Portable Toilets, Inc., 810 F.2d 104, 105 (6th Cir. 1987). However, if the plaintiff does not present evidence of financial harm, they may not be able to recover damages, even if they can enjoin the defendant from future use of their identity. Andretti v. Borla Performance Indus., 426 F.3d 824, 831 (6th Cir. 2005).

A plaintiff cannot receive punitive damages in Michigan unless authorized by statute. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 765 (2004). As there is no Michigan statute addressing a right of publicity or appropriation, punitive damages are not available for such claims.

Statute of limitations

Although no Michigan court has addressed the issue given the unsettled nature of the right of publicity in Michigan, it is likely that a right of publicity claim in Michigan would be subject to Michigan's general three-year statute of limitations for personal injury actions. Mich. Comp. Laws 600.5805(10).

This page covers legal information specific to the State of New Jersey. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

New Jersey's state appellate courts recognize a common law right of publicity and a comparable protection on a privacy theory under the state's appropriation tort. The United States District Court for the District of New Jersey has noted that both state and federal courts use the concepts of right of publicity and appropriation "interchangeably" when applying New Jersey's law. Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 761 (D.N.J. 2011). The state has no corresponding statute.

What constitutes a violation of the common law right of publicity?

In Faber v. Condecor, Inc., 477 A.2d 1289, 195 N.J. Super. 81 (App.Div. 1984), the Appellate Division of the Superior Court of New Jersey held that the unauthorized use of a family photo to sell picture frames constituted use for trade purposes, and therefore gave rise to an appropriation claim. A recent unpublished opinion by the same court, Jeffries v. Whitney E. Houston Acad. P.T.A., A-1888-08T3, 2009 WL 2136174 (N.J. Super. Ct. App. Div. July 20, 2009), interpreted Faber to require four elements for an appropriation claim:

1) The defendant appropriated the plaintiff's likeness,
2) without the plaintiff's consent,
3) for the defendant's use or benefit, and
4) damage.

In general, unauthorized publication of an identity for promotional or commercial purposes constitutes appropriation under New Jersey law. Conversely, publication that does not convey such a commercial benefit is considered "incidental" to the publication and does not qualify as appropriation. In Jeffries, the court held that a parent teacher association's sale of a video of a large student performance was only an incidental use of an individual student's identity. Similarly, in Castro v. NYT Television, 851 A.2d 88, 370 N.J. Super. 282 (App.Div. 2004), the same court held that including footage of a group of hospital patients in a television docudrama did not constitute appropriation. In Castro, a group of patients sued various parties involved in the creation of a television show for commercially appropriating the patient's identities. The show, "Trauma: Life in the E.R.," included footage from interviews with the plaintiffs. The court held that because the footage was not used for "trade purposes," the plaintiffs could not bring the claim. The court noted that the plaintiffs did not "allege... that any videotape footage of them was used for any specific promotional purpose."

Note that analysis of whether a publication is incidental might also implicate First Amendment considerations (see First Amendment Defenses, below). In Faber, the court explained that a photo accompanying an article in a newspaper would be considered an "Incidental Use of Name or Likeness" and therefore would not give rise to a cause of action. A photo included as an advertisement, however, would not qualify as incidental.

One may consent to another's use of one's identity for commercial purposes. However, in Faber, the court held that waiver for a particular use of a photo does not constitute waiver for another use. The plaintiffs in Faber had consented to the use of their photo in an instructional guide. The court held that the plaintiffs could still bring a claim against a defendant who used the photo to sell picture frames.

The fourth element, damage, has rarely been addressed as a requirement for a claim in New Jersey's courts.

What is protected?

New Jersey has adopted the Restatement (Second) of Torts, which explains that "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."

It appears that a distinctive voice or performance would be protected. In Prima v. Darden Restaurants, Inc., 78 F. Supp. 2d 337 (D.N.J. 2000), the United States District Court for the District of New Jersey held that imitating a singer's voice could infringe on his right of publicity under New Jersey common law. In Prima, the widow of a famous singer claimed the use of her late husband's identity in a restaurant commercial constituted an appropriation. The commercial featured a song that her late husband had made famous, sung by a performer who "unmistakably" copied her husband's voice and manner. Similarly, in Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981), the court held that an Elvis impersonator's show constituted an appropriation, though in that case the show also employed Elvis's name and likeness.

A plaintiff may be able to recover for appropriation of a fictional identity. In McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994), the United States Court of Appeals for the Third Circuit held that an actor would be able to bring a claim under New Jersey law for the appropriation of the identity of his character, depending on the association between the actor and character.

The United States District Court for the District of New Jersey has said that the right of publicity is "generally" for plaintiffs with public personas. Jarvis v. A & M Records, 827 F. Supp. 282, 298 (D.N.J. 1993). However, a plaintiff need not be a celebrity to successfully claim damages. In Canessa v. J. I. Kislak, Inc., 235 A.2d 62, 97 N.J. Super. 327 (Law Div. 1967), the plaintiff, a veteran with eight children, enlisted the help of real estate agency to help him to find a home for his family. After purchasing a house, the plaintiff allowed a paper to publish a piece on him and his search. The real estate agency subsequently included the article in its promotional materials for its salesmen, which the plaintiff claimed was an unauthorized appropriation. The Law Division of the Superior Court of New Jersey agreed, explaining:

Entirely apart, however, from the metaphysical niceties, the reality of a case such as we have here is, in the court's opinion, simply this: plaintiffs' names and likenesses belong to them. As such they are property. They are things of value. Defendant has made them so, for it has taken them for its own commercial benefit.

The United States Court of Appeals for the Third Circuit has held that simply using one's name as "placeholder," such as "John Doe," does not give rise to a claim under New Jersey law by a person who shares that name. Botts v. N.Y. Times Co., 106 Fed. Appx. 109, 110 (3d Cir. 2004).

Transfer of rights by death or assignment

In Prima, the United States District Court for the District of New Jersey noted that New Jersey treats the right of publicity as a property right. "As such," the court explained, "it can be assigned for commercial purposes during a person's life, and can descend to the person's estate upon his death." Prima at 346.

First Amendment Defenses

Some forms of speech, such political speech or news/entertainment, are protected by the First Amendment. Consider the following examples of protected speech.

In Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 186 N.J. Super. 335 (App.Div. 1982), a home-buyer claimed that publishing his name, photo, occupation, and information about the home that he had purchased constituted an appropriation. The Appellate Division of the Superior Court of New Jersey noted that the newspaper publishing the information had a "limited privilege" connected to the First Amendment to publish news articles. The court held that because the information about the transaction was already public, and because the paper's "minimally violative" disclosure of the home-buyer's job was "solely incidental to the news aspects of the sale," the plaintiff could not bring an appropriation claim. In its later ruling in Castro, the Appellate Division cited the decision in Bisbee and noted "it is irrelevant whether a videotape is broadcast in connection with a television story about important public events or a subject that provides only entertainment and amusement."

In G.D. v. Kenny, 15 A.3d 300, 205 N.J. 275 (2011), the New Jersey Supreme Court held that the inclusion of plaintiff's name and image in political paraphernalia was not a commercial use, and therefore a plaintiff could not bring an appropriation claim. In G.D., a political organization and its marketing partner distributed leaflets describing a politician's prior drug conviction. The court held that such campaign materials are "the type of speech that is at the heart of First Amendment," and that the financial interests of the marketing firm did not render the materials commercial.

For a good example of the limits of the scope of First Amendment defenses to appropriation claims, consider Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986). In Tellado, the United States District Court for the District of New Jersey held that while the First Amendment would protect the publication of a soldier's photo in a book about the Vietnam War, it would not protect the publication of the photo in the marketing materials enclosed within the book. As the court explained, "the defendant's right of free expression is abridged only insofar as it is required to share some of its profits with the individual whose likeness is helping to stimulate those profits." Also consider Presley, in which the court drew an analogy between "creative comment precluding a right of publicity claim" and fair use. In Presley, the court held that the Elvis impersonator's show was mainly an exploitation and not sufficiently "creative" to qualify for protection.

Damages and other remedies

Damages are available for appropriation claims under New Jersey law. Faber at 1295. Whether or not one is a celebrity will affect the calculation of damages. Canessa at 350. Calculation of damages for an appropriation claim may be subject to the degree to which the plaintiff retains ownership of the identity. McFarland at 922. Canessa noted that "it seems to us that however little or much plaintiff's likeness and name may be worth, defendant, who has appropriated them for his commercial benefit, should be made to pay for what he has taken, whatever it may be worth." Canessa at 351.

There are few opinions addressing the question of calculating damages under New Jersey law in appropriation cases. In a recent unpublished opinion, Leibholz v. Hariri, Civ. No. 05-5148 (D.N.J. Apr. 15, 2011), the United States District Court for the District of New Jersey quoted the Restatement (Second) of Torts in its calculation of damages for an appropriation claim. For privacy torts, the court explained, the Restatement looks to:

(a) the harm to (the plaintiff's) interest in privacy resulting from the invasion; (b) (the plaintiff's) mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.

In Faber, the Appellate Division of the Superior Court of New Jersey held that the plaintiff could claim damages for the "mental anguish" they suffered from the unauthorized publication of a family photo. On the other hand, in McFarland, the United States Court of Appeals for the Third Circuit held that, under its interpretation of New Jersey law, "deprivation of property" and "lost earnings" could be considered under the right of publicity but suggested that psychological harm ought to be associated with an invasion of privacy claim. In this case, the federal court may have been drawing a distinction between right of publicity and appropriation, though again Hart indicates that both federal and state courts treat them "interchangeably."

New Jersey state courts have also issued injunctive relief for appropriation claims. Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458, 96 N.J. Super. 72, 80 (Ch. Div. 1967). Federal courts interpreting New Jersey law have done the same, including issuing a preliminary injunction. Presley at 1382.

Statute of limitations

As a property right, at least one New Jersey court has held that New Jersey's right of publicity claim is subject to the six-year statute of limitations for  invasion of property rights. Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 352 (Law Div. 1967).

This page covers legal information specific to the State of New York. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

New York has codified its right of publicity as part of its "Right of Privacy" statute, at Article 5 of the N.Y. Civil Rights Law. You should familiarize yourself with Sections 50 and 51, the primary statutory provisions for right of publicity actions. New York does not recognize a separate common law right of publicity.

Relationship between Sections 50 and 51

The two sections, 50 and 51, describe similar rights but provide for different enforcement mechanisms. Section 50 makes a right of publicity violation a misdemeanor, while Section 51 provides a private cause of action. Though right of publicity lawsuits in New York often reference both sections, Section 51 is the primary (and more detailed) provision for most purposes.

What is protected?

Section 51 provides protection for a person's: 

• name 
• portrait 
• picture, and 
• voice. 

Names: The right of publicity statute does not protect corporate or partnership names. Jaggard v. R.H. Macy, 26 N.Y.S. 829 (N.Y. Sup. Ct. 1941). New York courts have long recognized that "there are other remedies" for the unauthorized use of corporate names. Rosenwasser v. Ogoglia, 158 N.Y.S. 56 (N.Y. App. Div. 1916). This lack of protection for trade names has been held to bar a claim under Section 51 for misappropriation of assumed names, like "Dr. Seuss." Geisel v. Poynter Products, Inc., 195 F. Supp. 331, 355-56 (S.D.N.Y. 1968); but see DeClemente v. Columbia Pictures, 860 F. Supp. 30, 53 (E.D.N.Y. 1994) (suggesting that a stage name might be protected if it is "closely and widely identified" with its user).

Portraits and Pictures: Courts have construed the portrait/picture provisions of the statute somewhat broadly, to include "any recognizable likeness, not just an actual photograph." Burck v. Mars, Inc., 571 F. Supp. 2d 446, 451 (S.D.N.Y. 2008). The statute covers a representation if it "conveys the essence and likeness of an individual," even if the representation is not completely photo-realistic. Onassis v. Christian Dior-New York, 472 N.Y.S. 2d 254, 261 (N.Y. Sup. Ct. 1984). Sculptures, mannequins, and other three-dimensional "likenesses" may be covered. Young v. Greneker Studios, 26 N.Y.S. 2d 357 (N.Y. Sup. Ct. 1941).

Voice: "Voice" was added to § 51 (but not to § 50) in 1995. Thus, one must be cautious of pre-1995 cases like Maxwell v. N.W. Ayer, Inc, 605 N.Y.S.2d 174, which dismiss voice-related right of publicity claims.

Rights of deceased persons

New York does not recognize a posthumous right of publicity. Mirone v. MacMillan, 894 F.2d 579, 585 (2d Cir. 1990).

What constitutes a violation?

To violate § 51, a use of a person's identity must be:

• Within New York state; 
• For advertising or trade purposes; and 
• Without written consent. 

The focus on advertising and trade means that a use designed to solicit sales of products or services is forbidden. But this category of advertising uses is somewhat narrow; § 51 contains a long list of exceptions to the right of publicity, which include protections for:

• professional photographers against suits by their subjects; 
• the use of an author's name, in connection with the work of that author; 
• owners of copyrights in sound recordings; and 
• using a person's identity in connection with products, if the person manufactured or sold those products under their identity. 

There is also a significant newsworthiness exception. A defendant is not liable for using a person's identity in connection with a "newsworthy" article, such as a newspaper article. New York courts have interpreted "newsworthy" broadly, to include "a wide variety of articles on matters of public interest," not just "hard news" articles. Messenger v. Gruner + Jahr Printing, 94 N.Y. 2d 436, 441-42 (N.Y. 2000). Newsworthy uses of a person's identity do not violate the right of publicity statute, even though the publisher intends them to sell copies, attract advertising, or otherwise produce revenue.

Advertisements that promote an otherwise privileged use of a person's identity are also exempt from liability. So, for example, if a magazine legitimately publishes photographs of a model, it can use those pictures to attract subscribers. Lerman v. Flynt Distributing, 745 F.2d 123, 130-31 (2d Cir. 1984).

In some circumstances, the First Amendment "actual malice" doctrine may affect a case's outcome. Courts have held that defendants may forfeit the newsworthiness defense if the article in question contains a "severe" degree of falsity. Lerman v. Flynt Distributing, 745 F.2d 123, 132-33 (2d Cir. 1984) If the plaintiff is a public figure, though, the defendant can only be held liable if he published the falsehoods with actual malice. Id. at 135-38.

Damages

Section 51 provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. The damage award primarily compensates for emotional distress. See Garis v. Uncut-RawTV, No. CV 06–5031, 2011 WL 4404035, at *3-4 (E.D.N.Y, July 5, 2011).

Section 51 also provides for punitive or exemplary damages, if certain conditions are met. A plaintiff can recover exemplary damages if the defendant knew that the plaintiff had not consented to the use of her identity. Id. at 4-5. Courts may award exemplary damages if necessary to deter future violations of Section 51.

Statute of limitations

Claims under Section 51 of the Civil Rights Law are subject to a one-year statute of limitations.  N.Y. Civ. Prac. Law & Rules, § 215(3).

This page covers legal information specific to the State of North Carolina. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

North Carolina does not provide a statutory basis for right of publicity claims. In 2009, the North Carolina legislature proposed, but did not enact, legislation that addressed the right of publicity. 

North Carolina appellate courts have only applied the missapropriation branch of the invasion of privacy tort in two cases. The Supreme Court of North Carolina last addressed misappropriation of image in 1938. 

In Flake v. Greensboro News, 212 N.C. 780 (1938), the North Carolina Supreme Court recognized a cause of action for the unauthorized use of one's photograph or likeness in connection with an advertisement or other commercial enterprise. In Flake, the plaintiff brought suit on the basis of an advertisement published in a local newspaper that featured a picture of her dressed in a bathing suit. She showed evidence that the photograph was published in this instance without her consent. The court held that the unauthorized use of a plaintiff's photograph in connection with an advertisement or other commercial enterprise would give rise to a cause of action, but that absent a showing of special damages, only nominal and injunctive relief could be granted.

It is not clear from the opinion in Flake whether the court treats the right of publicity as a property or privacy-based right. The court explicitly did not reach the question of whether First Amendment or newsworthiness defenses might apply to such a cause of action in other contexts.

In Barr v. Southern Bell Tel. and Tel. Co., 13 N.C. App. 388 (1972), a telephone company published a phone directory including an advertisement for the plaintiff's rug cleaning company; however, although the telephone company included the plaintiff's name, it used the likeness of an unrelated third party in connection with the plaintiff's name. The plaintiff had signed an agreement that allowed for the commercial use of his image; however, the appellate court held that the publication of plaintiff's name in connection with the mistaken image exceeded the scope of this consent, and might justify a finding of invasion of privacy. The decision implies that consent is a defense, but that if a publication exceeds the scope of consent, that the publication may be actionable.

A right of publicity claim in North Carolina is likey subject to the state's general three-year statute of limitations for personal injury claims. N.C. Gen. Stat. § 1-52(16).

This page covers legal information specific to the State of Ohio. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the right of publicity in Ohio protects against unwarranted appropriation or exploitation of one's personality. Ohio has two systems of right of publicity law: a statutory right as a property interest, and a common law right as a right of privacy.

Ohio codifies its statutory right of publicity in Ohio Rev. Code Ann. § 2741. You should first familiarize yourself with the statute.

Ohio recognizes the unwarranted appropriation or exploitation of one's personality as an actionable invasion of privacy tort. Housh v. Peth, 133 N.E.2d 340, 341 (Ohio 1956). Ohio's right of publicity statute explicitly states that a right of publicity is a property right. Ohio Rev. Code Ann. § 2741.01(D). 

At common law, Ohio has not distinguished the right of publicity from the tort of misappropriation; courts commonly refer to the tort as "appropriation of one's name or likeness." A federal court applying Ohio law said that the "right of publicity is a creature of state law, and its violation gives rise to a cause of action for the commercial tort of unfair competition." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003).

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Ohio's statutory right of publicity is found under Ohio Rev. Code Ann. § 2741, "Right of Publicity in Individual's Persona." Ohio's right of publicity statute expressly states that its provisions are in addition to common law rights. Ohio Rev. Code Ann. § 2741.08.

The statute defines "right of publicity" as "the property right in an individual's persona to use the individual's persona for a commercial purpose." Ohio Rev. Code Ann. § 2741.01. The Ohio statute protects the following aspects of an individual's "persona," if those aspects have commercial value:

• Name
• Voice
• Signature
• Photograph
• Image
• Likeness
• Distinctive appearance

Ohio Rev. Code Ann. § 2741.01(A).  The statute does not define the term "commercial value." 

The statute defines "commercial purpose" as the use of an aspect of an individual's persona in any of the following ways:

• On or in connection with a place, a product, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
• To advertise or solicit the purchase of products, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
• To promote travel to a place.
• For fundraising.

Ohio Rev. Code Ann. § 2741.01.

Who Can Exercise the Statutory Right of Publicity   

The Ohio right of publicity statute protects living and deceased natural persons for the duration of a person's lifetime plus 60 years. Ohio Rev. Code Ann. § 2741.02. The statute applies to living individuals domiciled or residing in Ohio; it applies to deceased individuals only if  (1) the individual died on or after January 1, 1998, and (2) the individual's domicile or residence was in Ohio at the time of death. Ohio Rev. Code Ann. § 2741.03.

In addition to the 60-year post-mortem protection, the Ohio right of publicity statute specifically prohibits the unauthorized use of the persona of a deceased member of the Ohio National Guard or the U.S. armed forces for ten years after the date of death. Ohio Rev. Code Ann. §§ 2741.02(A)(3) and 2741.99. The Ohio statute provides both civil remedies and criminal penalties for violations of the provisions. Ohio Rev. Code Ann. § 2741.99.

Under the Ohio statute, the right of publicity is a property right and is freely transferable and descendible, in whole or in part, by:

• contract
• license
• gift
• trust
• will
• operation of the laws of intestate succession applicable to the state administering the majority of the real and personal property of an individual who died intestate, regardless of whether that state recognizes the right of publicity as a property right.

Ohio Rev. Code Ann. § 2741.04.

The statute requires that any consent to use an individual's right of publicity for a commercial purpose be made in writing, which includes written, electronic, digital or any other verifiable means of authorization. Ohio Rev. Code Ann. § 2741.05.  Consent may be given by any person or persons (including the individual whose right of publicity is at issue) who (1) collectively own more than 50% of the right of publicity, or (2) is expressly authorized in writing to grant consent by the collective owner(s) of more than 50% of the right. Ohio Rev. Code Ann. § 2741.05(A).

The following persons may bring a civil action to enforce the publicity rights set out in the Ohio statute: (1) a person or persons, including an individual whose right of publicity is at issue, who collectively own all of an individual's right of publicity, subject to any licenses regarding that right of publicity; (2) a person, including a licensee of an individual's right of publicity, who is expressly authorized in writing by the owner or owners of an individual's right of publicity to bring a civil action; (3) a person to whom ownership or any portion of ownership of an individual's right of publicity has been transferred. Ohio Rev. Code Ann. § 2741.06(A).

Before bringing an civil action, a person who holds partial ownership of an individual's right of publicity must give notice to that person and to any other person to whom ownership has been transferred. That individual, and any other transferees of the right, may object to the proposed civil action within time frames set forth in the statute. If holders of more than fifty percent (50%) of the right of publicity object in a timely fashion, the action may not proceed. Ohio Rev. Code Ann. §§ 2741.06(B), (C).

What Constitutes a Statutory Violation 

The elements of a civil claim under the Ohio right of publicity statute are:

• use of any aspect of an individual's persona,
• for a commercial purpose,
• during the individual's lifetime or the 60 years after the date of the individual's death,
• without written consent.

Ohio Rev. Code Ann. § 2741.02.

Mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).

 

THE COMMON LAW RIGHT

What the Common Law Right Protects

Ohio recognizes a common law cause of action for the unauthorized commercial use of a living person's name, likeness or identity as a right of privacy. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977). "The fundamental wrong is the appropriation for one's self of the benefits of another's name, likeness, or identity, and the wrong is the same whether or not that benfit is pecuniary." Id. at 458. That court held that the applicable principles of the tort were set out in the Restatement of Torts (Second) § 652C.

"The right of publicity is an intellectual property right of recent origin which is the inherent right of every human being to control the commercial use of his or her identity." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003) (internal citations omitted).

Ohio's common law right of publicity protects natural persons, but does not extend to deceased persons. See Reeves v. United Artists, 765 F.2d 79 (6th Cir. 1983), Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir. 1970).

The Supreme Court of Ohio has not expressly stated whether Ohio common law protection requires that the person's identity have commercial value. See Vinci v. Am. Can Co., 459 N.E.2d 507, 510 (Ohio 1984). However, one court has  stated that a plaintiff must plead that the misappropriated name or likeness has "intrinsic value, which was taken by defendant for its own benefit, commercial or otherwise." Jackson v. Playboy Enters., Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983)

 

What Constitutes a Violation of the Common Law Right

The elements of a common law claim of appropriation of a person's name or likeness are:

• Use of another person's name or likeness.
• For one's own benefit.

The use or benefit of a person's name does not have to be commercial.  Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 458 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977): "The interest which the law protects is that of each individual to the exclusive use of his own identity, and that interest is entitled to protection from misuses whether the misuse is for commercial purposes or otherwise."

A defendant must have appropriated the reputation, prestige, social, or commerical standing, public interest, or other values of a person's name or likeness. Brooks v. American Broadcasting Co., 727 F. Supp. 431 (N.D. Ohio 1991), aff'd, 999 F.2d 167 (6th Cir. 1991), cert. denied, 510 U.S. 1015 (1993).

 

DAMAGES

Statutory 

Remedies under Ohio's right of publicity statute include:

• injunctive and other relief (e.g. impoundment and destruction of items),
• actual damages,
• statutory damages,
• attorney's fees, costs, and expenses,
• treble damages, and
• punitive or exemplary damages.

Ohio Rev. Code Ann. § 2741.07.

As noted above, the statutory remedies are supplemental to any other remedies provided by state or federal statute or common law. Ohio Rev. Code Ann. § 2741.07.

In regards to statutory damages, a plaintiff may recover statutory damages in lieu of actual damages. The trier of fact has discretion to award statutory damages of  (1) not less than $2,500, and (2) not more than $10,000. Ohio Rev. Code Ann. § 2741.07(A)(1)(b). Factors to be considered in setting the amount of a statutory damage award include the:

• willfulness of the violation
• harm to the persona in question
• ability of the defendant to pay a civil damage award

Ohio Rev. Code Ann. § 2741.07(A)(1)(b).

Under the Ohio statute, a court may award treble damages against the owners or employees of any advertising medium in which an advertisement or solicitation is published or disseminated, is there is a finding that the owners or employees had knowledge of the unauthorized use of the persona. Ohio Rev. Code Ann. §§ 2741.02(E) and 2741.07(B)(2).

Common Law 

Civil remedies under Ohio common law include actual damages and injunctive relief.  The court in James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 124 (Ohio Ct. App. 2006), held that a plaintiff need not establish actual damages to prevail on a misappropriation of name claim, and a may seek to recover nominal, compensatory, and if appropriate, punitive damages for claims of misappropriation. 

LIMITATIONS AND DEFENSES 

All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.

Statutory  

The Ohio right of publicity statute specifically exempts use of an individual's persona in a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement not exempt; material that has political or newsworthy value; original works of fine art; or an advertisement or commercial announcement for a use permitted in any of these works. Ohio Rev. Code Ann. § 2741.09 (A)(1).

There are also newsworthy exemptions in the statute. For example, the statute specifically exempts use of:

• an individual's name to truthfully identify the individual as the author of or contributor to a written work, or the performer of a recorded performance where the written work or the recorded performance is otherwise lawfully reproduced, exhibited or broadcast;
• an aspect of an individual's persona in connection with the broadcast or reporting of an event or topic of general or public interest; and
• an individual's persona solely in the individual's role as a member of the public if the individual is not named or otherwise singled out.

Ohio Rev. Code Ann. § 2741.09 (A)(2),(3),(4), see also Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004) (right of privacy under Ohio law does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.)

Other exemptions include use of:

• an individual's persona by an institution of higher education if the individual is or was a student at, or a member of the faculty or staff of, the institution; and the use is for educational purposes or to promote the institution and its educational or institutional objectives; and
• an individual's persona that is protected by the First Amendment to the Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

Ohio Rev. Code Ann. § 2741.09(5),(6). 

The statute also permits use of a deceased individual's persona for a commercial purpose if the name of the individual was the name of a business entity or a trade name at the time of the individual's death. Ohio Rev. Code § 2741.02(B)(2). 

Common Law

As noted above, mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).

In Zacchini v. Scripps-Howard Broad. Co., the Supreme Court held that there is no consitutional privilege immunizing television stations from damages for an alleged infringement of the right of publicity which a performer has in his particular commercial activity. 433 U.S. 562, 578 (1977).

There is a legitimate public interest exception for the right of publicity. Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004). There is no misappropriation when a person's name or likeness is used in contact of general news reporting. Brooks v. American Broadcasting Co., 737 F. Supp. 431 (N.D. Ohio 1991). 

 

STATUTE OF LIMITATIONS 

Statutory  

An action must be brought within four years of a violation. Ohio Rev. Code Ann. § 2741.07(C).

Common Law  

A four year statute of limitations applies to Ohio's common law right of publicity actions under the invasion of privacy tort. Ohio Rev. Code Ann. § 2305.09(D).

 

This page covers legal information specific to the State of Pennsylvania. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the right of publicity in Pennsylvania protects against unauthorized uses of a person's name or likeness for commercial purposes. Pennsylvania has two systems of right of publicity law: a statutory right, and a common law right.

Pennsylvania codifies its statutory right of publicity in 42 Pa. Cons. Stat. § 8316. You should first familiarize yourself with the statute.

At common law, Pennsylvania has distinguished the right of publicity from the tort of misappropriation (called "invasion of privacy by appropriation of name or likeness"). However, it is unsettled in Pennsylvania if 42 Pa. Cons. Stat. § 8316 has absorbed the common law tort of invasion of privacy by appropriation of name or likeness. Please see below for more information on these distinctions. 

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Pennsylvania's statutory right of publicity is found under 42 Pa. Cons. Stat. § 8316. The official title of the statute is "Unauthorized Use of Name or Likeness," but it is commonly referred to as the "Right of Publicity" statute. "Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose" may bring an action for infringement. 42 Pa. Cons. Stat. § 8316. 

A "natural person," as defined by the statute, is "a living person or a deceased person who was domiciled within this Commonwealth at the time of such person's death." 42 Pa. Cons. Stat. § 8316(e).

The term "name" or "likeness" is defined in the statute as any attribute of a natural person that identifies him to an ordinary, reasonable viewer or listener. These attributes include:

• Name
• Signature
• Photograph
• Image
• Likeness
• Voice
• A substantially similar imitation of one or more of the above

42 Pa. Cons. Stat. § 8316(e).

The term "commercial value" means a "valuable interest in a natural person's name or likeness that is developed through the investment of time, effort and money." 42 Pa. Cons. Stat. § 8316(e); see also Lewis v. Marriott Intern. Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007)(arguing that revenue figure evidence show commercial success of plaintiff's wedding packages, and this supports the claim that plaintiff's investment of time, effort and money in promoting and selling wedding packages has "commercial value").

Who Can Exercise the Statutory Right of Publicity   

Though it does not expressly address transferability, the statute allows other parties, including individuals, firms and corporations, to bring an action on behalf of a person whose right of publicity has been violated. A party can act on behalf of a natural person if authorized in writing by that person to license the commercial or advertising purposes of his name or likeness. 42 Pa. Cons. Stat. § 8316(b)(4).

The statute also protects a deceased person if they were domiciled within Pennsylvania when they died. 42 Pa. Cons. Stat. § 8316(a),(e). The statute recognizes a thirty year post-mortem right of publicity. 42 Pa. Cons. Stat. § 8316(c); see also Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).

The statutory post-mortem right of publicity in Pennsylvania can be enforced by:

• A person, firm, or corporation authorized in writing to license the commercial or advertising use of the natural person's name or likeness by:
  • the natural person during his lifetime; or
  • a will or other testamentary device.
• An executor named in a will or designated by a court;
• The decedent's surviving spouse or, if there is no surviving spouse, other heir or group of heirs who have at least a 50% interest in the decedent's estate.

42 Pa. Cons. Stat. § 8316(b)(3).

What Constitutes a Statutory Violation 

The elements of a claim for violation of Pennsylvania's Right of Publicity statute are:

1. The natural person's name or likeness has commercial value; and
2. The name or likeness was used for any commercial or advertising purpose; and
3. The name or likeness was used without written consent of the natural person or the written consent of any party authorized to give consent.

42 Pa. Cons. Stat. § 8316(a).

Under Pennsylvania's Right of Publicity statute, a natural person's name or likeness can be identified by any attribute that identifies that natural person to an ordinary, reasonable viewer or listener. 42 Pa. Cons. Stat. § 8316(e).

The law does not apply when:

1. The person appears as a member of the public and is not named or otherwise identified,
2. The name or likeness is associated with a news report or presentation having public interest,
3. The name or likeness is an "expressive work" or "original work of fine art" [terms defined in the statute],
4. The name or likeness is associated with an announcement for a commercial or advertising purpose for certain permitted uses in paragraph (2) and (3) above,
5. It is associated with the identification of a natural person as the author or contributor to a written work, or the performer of a recorded performance under circumstances in which the written work or recorded performance is lawfully produced, reproduced, exhibited, or broadcast. 

42 Pa. Cons. Stat. § 8316(e)(2).

The statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).

Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action (1) to enjoin the unauthorized use, and/or (2) to recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a); see also Tillery v. Leonard & Sciolla, LLP, 437 F. Supp. 2d 312 (E.D. Pa. 2006).

 

THE COMMON LAW RIGHT

What the Common Law Right Protects

Pennsylvania recognizes a common law right of publicity. "The right of publicity inures to an individual who seeks to protect and control the commercial value of his name or likeness." Eagle's Eye, Inc. v. Ambler Fashion Shop, Inc., 627 F. Supp. 856, 862 (E.D. Pa. 1985). The court in Eagle's Eye called the right a "misappropriation of right of publicity," and claimed it was derived from the right of privacy, though noted it was "entirely" different from the right of privacy. Eagle's Eye at 862; see also Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007); Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3 (E.D. Pa. Mar. 2, 2007); World Wrestling Federation Entm't, Inc. v. Big Dog Holdings, Inc., 280 F. Supp. 2d 413, 443 (W.D. Pa. 2003)

The common law right of publicity grants a person or a group the exclusive right to control the commercial value of his/their name and likeness. Eagle's Eye at 862. The right of publicity in Pennsylvania protects individuals and groups (e.g., musical groups) by giving them the right to control the commercial use of their inherently distinctive names and likenesses. See Brockum Co. v. Blaylock, 729 F. Supp 438, 445–46 (E.D. Pa. 1990); Apple Corps Ltd. v. Button Master, P.C.P., Inc., No. 96-5470, 1998 WL 126935, at *13 (E.D. Pa. Mar. 19, 1998); Philadelphia Orchestra Ass'n v. Walt Disney Co., 821 F. Supp. 341, 344–45 (E.D. Pa. 1993); Hogan v. A. S. Barnes & Co., 114 U.S.P.Q. 314, 230 (Pa. Com. Pl. 1957) (finding violation of right of publicity, but calling it "unfair competition under another label).

The right only applies to natural persons. Fraternal Order of Police v. The Crucifucks, No. 96-2358, 1996 WL 426709, at *2 (E.D. Pa. July 29, 1996) However, in dicta, the District Court for the Eastern District of Pennsylvania, in a case about blues singer Bessie Smith, implied (by considering who had the capacity to sue for violations after the right after Smith's death under Pennsylvania law) that there is a postmortem exclusive right to use an individual's name and likeness. See Gee v. CBS, Inc., 471 F. Supp. 600, 617 (E.D. Pa. 1979) ("In short, far from being a hollow formality, the requirement that a qualified administrator or executor sue under the survival statute reflects the heart of the statute, which is that a cause of action survives in favor of the decedent's estate.")

A corporation can own an individual or group's right of publicity, as a corporate third-party licensee. Brockum Co. v. Blaylock, 729 F. Supp. 438, 446 (E.D. Pa. 1990). The licensee has the authority to enjoin the use of the licensor's name or likeness. Nice Man Merch., Inc. v. Logocraft Ltd., No. 91-7475, 1992 WL 59133, at *5 (E.D. Pa. Mar. 18, 1992); see also Apple Corps Ltd., No 96-5470, 1998 WL 126935, at *14 (E.D. Pa. Mar. 19, 1998). Although Pennsylvania recognizes the right of publicity of a group of persons, courts have held that the common law right of publicity does not protect the trademarks and images of corporations, partnerships or similar institutions. See Apple Corps Ltd., No 96-5470, 1998 WL 126935 (E.D. Pa. Mar. 19, 1998); Eagle's Eye, Inc., 627 F. Supp. 856.

What Constitutes a Violation of the Common Law Right

To establish a violation of the right of publicity, the plaintiff must prove that the defendant is appropriating the plaintiff's valuable name or likeness, without authorization, to defendant's commercial advantage. Philadelphia Orchestra Ass'n, 821 F. Supp. at 349. In order to infringe a group's right of publicity, the name appropriated must have a secondary meaning. Id.

An allegation of commercial value may not be required, as courts apply a presumption of commercial value based on the act of a defendant's decision to use a person's identity. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3. "Inherent in the act of a defendant using a person's name ... in a commercially advantageous manner is the presumption that the identity has commercial value." Fanelle v. Lojack Co., No. 99-4292, 2000 WL 1801270, at *11 (E.D. Pa. Dec. 7, 2000).

Some courts conflate the right of publicity with the separate concept of misappropriation/invasion of privacy by appropriation of name or likeness. One distinction between the torts is that violation of the right of publicity requires an element of commercial advantage, while invasion of privacy by appropriation of name or likeness does not. 

 

Right of Publicity vs. Invasion of Privacy by Appropriation of Name or Likeness

The Pennsylvania Supreme Court has expressly recognized a cause of action for "invasion of privacy" by "appropriation of name or likeness." See Corabi v. Curtis Publishing Co., 273 A.2d 899 (Pa. 1971), Vogel v. W. T. Grant Co., 327 A.2d 133 (Pa. 1974); Chan v. County of Lancaster, No. 10-cv-03424, 2011 WL 4478283 (E.D. Pa. Sept. 26, 2011). In addition, courts in Pennsylvania have relied upon § 652C of the Restatement (Second) of Torts for cases involving invasion of privacy by appropriation of name or likeness. AFL Phila. LLC v. Krause, 639 F. Supp. 2d 512, 529-30 (E.D. Pa. 2009). 

Many courts in Pennsylvania conflate the right of publicity with misappropriation of name or likeness. But although the two torts are similar under Pennsylvania law, the "right of publicity" is not identical to "invasion of privacy by appropriation of name or likeness." One distinction is that the invasion of privacy by appropriation of name or likeness does not require the appropriation to be commercial. AFL Phila. LLC, 639 F. Supp. 2d at 531.

In 2003, the Pennsylvania legislature enacted 42 Pa. Cons. Stat. § 8316. Since then, at least one district court has stated that the cause of action for invasion of privacy by misappropriation of identity has been "subsumed" by § 8316. Facenda v. NFL Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa.2007).  However, in a later decision, the same court held that it was hesitant to rule, absent guidance from the legislature or the Supreme Court of Pennsylvania, that this previously-recognized common law cause of action was subsumed by statute. Lewis v. Marriott Int'l, Inc., 527 F. Supp. 2d 422, 429 (E.D. Pa. 2007). "[A]s a matter of statutory construction, 'statutes are not presumed to make changes in the rules and principles of common law or prior existing law beyond what is expressly declared in their provisions.'" Id. Therefore, it remains unsettled whether § 8316 has superceded the tort of invasion of privacy by appropriation of name or likeness. 

A federal court in Pennsylvaniahas  stated that invasion of privacy by appropriation of name or likeness is a personal right created to protect one's privacy, while the right of publicity more closely resembles a property right created to protect commercial value. Rose v. Triple Crown Nutrition, Inc., No. 07-0056, 2007 WL 707348, at *3.

 

DAMAGES

Statutory 

Under the Pennsylvania Right of Publicity statute, an aggrieved person may bring an action to enjoin the unauthorized use and recover damages for any resulting loss or injury. 42 Pa. Cons. Stat. § 8316(a).

Common Law 

We have not found any cases discussing damages or injunctive relief. There have been cases where injunctive and monetary relief has been granted, but in an award combined with awards on trademark or other claims. See Apple Corps Ltd., No 96-5470, 1998 WL 126935; Brockum Co., 729 F. Supp at 445–46.

"Damages...are intended to protect the property right of an individual to the exclusive use of his own identity, notoriety, or skill," Worthy v. Carroll, No. 02-6882, 2003 WL 25706359, at *4 (E.D. Pa. July 16, 2003).

The court in Seale v. Gramercy Pictures, 964 F.Supp. 918, 929-30 (E.D. Pa. 1997) predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Unfair Competition § 46 as its standard for the right of publicity. The Restatement (Third) of Unfair Competition § 46 defines the right of publicity as follows: "One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purposes of trade is subject to liability for the relief appropriate under the rules stated in §§ 48 and 49 [injunctive and monetary relief]." Restatement (Third) of Unfair Competition § 46.

 

LIMITATIONS AND DEFENSES 

All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.

Statutory  

As noted above, the statute grants immunity to any person, firm or corporation in the business of producing, manufacturing, publishing or disseminating material for commercial and advertising purposes, unless they had actual knowledge of unauthorized use. 42 Pa. Cons. Stat. § 8316(d).

Pennsylvania's right of publicity statute is not preempted by federal copyright law because it requires a showing of commercial value, an additional element beyond a federal copyright infringement claim. Facenda, 542 F.3d at 1027; see also 42 Pa. Cons. Stat. § 8316(a),(e). 

Common Law

Court have recognized several common law exceptions for the common law right of publicity, including First Amendment defenses and protection for publications about newsworthy public figures.  

Federal courts have found that First Amendment considerations can outweigh enforcement of a publicity right. Seale, 949 F. Supp. at 337. The Supreme Court of Pennsylvania has held that "a public figure has no exclusive rights to his own life story" and others do not need consent or permission of the subject to write a biography of a celebrity. Corabi v. Curtis Pub. Co., 273 A.2d 899, 918 (Pa. 1971).

STATUTE OF LIMITATIONS 

Statutory  

Though not a statute of limitations per se, under Pennsylvania's right of publicity statute the right of publicity is descendible. However no action can be commenced more than thirty years after the death of the natural person who is the subject of the dispute. 42 Pa. Cons. Stat. § 8316(c). 

Depending on whether the right of publicity is treated as a property right or privacy right, it could be subject to different limitations. For example, claims of privacy are governed by a one year statute of limitation. 42 Pa. Cons. Stat. § 5523(1).  Property claims have a two year statute of limitations. For example, statutory trademark claims under the Lanham Act are subject to Pennsylvania's two-year statute of limitations. See Beauty Time, Inc. v. VU Skin Systems, Inc., 118 F.3d 140, 143 (3d Cir. 1997), Guardian Life Ins. Co. of America v. American Guardian Life Assur. Co., 943 F.Supp. 509, 517 (E.D. Pa. 1996).

Common Law  

With respect to the common law right of publicity, the applicable statute of limitations has not been interpreted under Pennsylvania law.

There is a two year "catchall" statute of limitations that might govern the right of publicity. 42 Pa. Cons. Stat. § 5524(7).  Claims of misappropriation (invasion of privacy) are governed by a one-year statute of limitations. 42 Pa. Cons. Stat. § 5523(1).

This page covers legal information specific to the State of Texas. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Generally speaking, the Right of Publicity in Texas protects against unauthorized uses of a person's name or likeness for commercial purposes. Texas has two systems of Right of Publicity law: a statutory posthumous right, and a common law right.

Texas codifies its statutory Right of Publicity at Title 4, Chapter 26 of the Property Code. You should first familiarize yourself with that statute. Texas has not distinguished its common law right of publicity from misappropriation, using those concepts interchangeably. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999) ("The tort of misappropriation of one's name or likeness is generally referred to as the ‘Right of Publicity.'").

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

Texas's statutory Right of Publicity is a property right that protects a person's right in his or her name and likeness after his or her death. The statute applies to anyone who died on or after January 1, 1937, whose identity has commercial value at or after the time of his or her death. Tex. Prop. Code Ann. § 26.003(2). The Right of Publicity lasts for 50 years after the death of the individual. Tex. Prop. Code Ann. §§ 26.003(1), 26.012(d).

Texas's statute, Texas Property Code, T. 4, Ch. 26, known as the "Buddy Holly Bill," protects a person's:

• name,
• voice,
• signature,
• photograph, or
• likeness.

The term "name" applies only to the "actual or assumed name used by an individual which, when used in conjunction with other information, is intended to identify a particular person." Tex. Prop. Code Ann. § 26.001.

The term "photograph" includes still or moving pictures or reproductions of an individual in which a viewer could "reasonably determine" the individual's identity with the naked eye. Tex. Prop. Code Ann. § 26.001; see also Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341 (N.D. Tex. 1985).

The term likeness has not been explicitly defined, but this category includes pictures, drawings, and the use of a singer's voice. It does not include accounts of general incidents from one's life or one's life story, especially if they are fictionalized. See Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); see also O'Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. Dec. 19, 2003).

Who Can Exercise the Statutory Right of Publicity

The Right of Publicity is a transferable, descendible property right. Tex. Prop. Code Ann. §§ 26.004-.005. Because the right is freely transferable in whole or part, only an individual who owns more than half may exercise that right and have standing to sue for infringement. Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009). The right can be transferred before or after death by contract, trust, or testamentary documents. Tex. Prop. Code Ann. § 26.004. If the Right of Publicity has not been transferred before or upon death, it vests in the individual's spouse and children or grandchildren. Tex. Prop. Code Ann. § 26.005. In addition, if the Right of Publicity does not vest by transfer or operation of law within a year of the individual's death, it is terminated. Tex. Prop. Code Ann. § 26.010.

As in California, to exercise this Right of Publicity within the first year of the individual's death, the holder must register the property right claim with Texas's Secretary of State. Tex. Prop. Code Ann. §§ 26.006-.008. After a year has passed, the owner may exercise the Right of Publicity whether or not the property right claim is registered. Tex. Prop. Code Ann. § 26.009. Registered claims constitute prima facie evidence of a "valid claim to a property right" that will generally prevail over a conflicting, unregistered claim. Tex. Prop. Code Ann. § 26.007.

What Constitutes a Statutory Violation

Under Texas's statute, a person may not, without the written consent of the property right holder, use a deceased individual's name, voice, signature, photograph, or likeness, "in connection with products, merchandise, or goods; or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services." Tex. Prop. Code Ann. § 26.011.

The Texas statute does not provide for a specific test for identifying an unauthorized use associated with the Right of Publicity, though courts have often applied the common law test discussed below.

The Texas statute also provides an exception for media use including:

• a play, book, film, radio program, or television program;
• a magazine or newspaper article;
• material that is primarily of political or newsworthy value;
• single and original works of fine art; or
• an advertisement for the above uses.

Tex Prop. Code Ann. § 26.012; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).

THE COMMON LAW RIGHT

What the Common Law Right Protects

Texas common law recognizes a right of publicity that protects the name or likeness of living persons (in contrast to the statutory right, which arises after death). Treated more as a privacy right than property right, this common law right of publicity has not been distinguished from misappropriation. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); see also Brown v. Ames, 201 F.3d 654 (5th Cir. 2000); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex.App.-Dallas 2001).

This right protects an individual's "name or likeness," which has been interpreted as an individual's "identity." See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). Texas courts have interpreted this in a similar manner to the statutory right, with the same limitation on the use of one's life story. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009). Like the statute, the common law intends to protect the value associated with a name or identity rather than the name per se. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999).

What Constitutes a Violation of the Common Law Right

Texas state courts and the Fifth Circuit have articulated a traditional three-prong test for misappropriation. These common law elements include:

• Did the defendant appropriate the plaintiff's name or likeness for its value rather than incidentally or for a newsworthy purpose?
• Can the plaintiff be identified from the publication?
• Did the defendant receive an advantage or benefit as a result of the appropriation?

See, e.g., Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994); Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999). If the answer to all three questions is yes, then there has been an unauthorized use of an individual's name or likeness.

It is sufficient to satisfy the third prong of this test if the defendant's use of the individual's name likely led to some benefit, commonly commercial, that the defendant would otherwise not have received. The plaintiff generally does not need to prove that the defendant actually made a profit from the use, though the benefit cannot be purely incidental. See Henley v. Dillard Dep't Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999); Topheavy Studios, Inc. v. Doe, 33 Media L. Rep. 2192, 2005 WL 1940159 (Tex. App. Aug. 11, 2005).

DAMAGES

Statutory

For claims brought under Texas's statutory Right of Publicity, the statute provides for the following damages:

• the amount of damages the person who owns the property right sustained as a result of the unauthorized use or $2,500, whichever is greater;
• the amount of any profits from the unauthorized use that are attributable to that use (established by a showing of the gross revenue attributable to the unauthorized use minus any expenses that the defendant may prove);
• the amount of any exemplary damages that may be awarded; and
• reasonable attorney's fees and expenses and court costs incurred in recovering the damages and profits established by this section

Tex. Prop. Code Ann. § 26.013. 

Common Law

A plaintiff may recover general damages for a right of publicity/misappropriation claim, which may include claims for mental and physical pain and suffering. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980). Special damages and punitive damages may be recovered in exemplary and/or intentional cases, such as when the plaintiff's endorsement has been sold on the open market rather than used without authorization by the defendant alone. See National Bank of Commerce v. Shaklee, 503 F.Supp. 533 (W.D. Tex. 1980); see also Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997). 

LIMITATIONS AND DEFENSES

All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest. As mentioned above, the Texas statute also contains internal protections for speech by providing exceptions for art, books, uses of political or newsworthy value, and more. Tex Prop. Code Ann. § 26.012. Accordingly, courts often rely upon the statutory safe harbor rather than address the First Amendment defenses directly. See Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009).

The First Amendment is more often applied in common law right of publicity cases brought by living individuals, given the lack of statutory exemptions. For example, in Busch v. Viacom, the court ruled that a fake endorsement as part of a news satire program that made use of a video clip in the public domain was a protected use of the plaintiff's name and likeness under the First Amendment's protection of parody. Busch v. Viacom, 477 F. Supp. 2d 764 (N.D. Tex. 2007).

Texas's statute also provides for a defense to a Right of Publicity claim if the user "has acted in reliance on the results of a probate proceeding governing the estate of the deceased personality in question." Tex Prop. Code Ann. § 26.015; see also Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009); Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Tex. 1997). 

In addition, the property right holder's consent to the use of an individual's name or likeness bars recovery, though this may depend on the scope and form of the consent. See King v. Ames, 1997 WL 86416 (N.D. Tex Feb. 18, 1997); Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975). For example, one case was remanded to determine whether an athlete's consent to use of his name and likeness in an advertisement for a college football program extended to his likeness portrayed in a Coca-Cola advertisement included in that football program. See Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975).

The common law right of publicity claim is likely subject to Texas' general two-year statute of limitations for personal injury actions.  Whitehurst, 2009 WL 3052663 at *5 (citing Tex. Civ. Prac & Rem. Code § 16.003(a)). Although no case has yet addressed the limitations period applicable to the statutory right, it is likely that it would also be subject to the limitations period in Tex. Civ. Prac & Rem. Code § 16.003(a) as an injury to a property right.

This page covers legal information specific to the Commonwealth of Virginia. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Virginia law generally forbids unauthorized use of a person's name or likeness for commercial purposes. There is no common law right of action for misappropriation or right of publicity in Virginia, but Virginia law does provide a statutory right of action against misappropriation. Because the statute contradicts prior common law, courts have applied the statute very narrowly.

It is also a criminal offense to use a person's name or picture for a commercial purpose without authorization in Virginia. A violation of Title 18.2, Chapter 6, Article 8, Section 216.1 of the Code of Virginia is a misdemeanor punishable by a fine of not less than $50, and not more than $1000.

Virginia codifies its statutory right against misappropriation at Title 8.01, Chapter 3, Article 3, Section 8.01-40 of the Code of Virginia. You should first familiarize yourself with that statute.

THE STATUTORY RIGHT

What the Statutory Right Against Misappropriation Protects

The statute, as it has been narrowly construed, provides a cause of action only when a "person, firm, or corporation" uses an individual's "name, portrait, or picture." Other identifying traits, such as voice or personality, and identifying descriptions do not trigger the cause of action. The statute also likely does not provide any protection to businesses or other legal or corporate entities. While the Supreme Court of Virginia has not addressed that question, local and federal courts have found that, within the context of the statute, the term "person" refers to an individual.

What Constitutes a Statutory Violation

The statute only prohibits use of person's name or image for trade or advertising purposes. Use for advertising purposes and for purposes of trade are distinct concepts.

Unauthorized use of a name or likeness for advertising purposes "has almost uniformly been held actionable" in Virginia. Town & Country Props., Inc. v. Riggins, 457 S.E.2d 356, 395 (Va. 1995). A name or likeness is used for advertising purposes when "it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service." Id. This can include a personal publication. In Town & Country Properties, the Supreme Court of Virginia held a real estate broker liable for attempting to generate interest in a property by distributing fliers advertising that a professional football player had formerly lived there, without permission from the player. A local Virginia court has also held that use of a person's name as part of a commercial web address violates the statute. Crump v. Forbes, 52 Va. Cir. 52 (Warren County 2000).

It is much more difficult to invoke the statute against a party for improperly using a name or likeness for purposes of trade. While "purposes of trade" is not defined in the statute or case law, courts most often discuss it in juxtaposition to newsworthiness. Courts have expressed concern that interpreting ‘purposes of trade' too broadly would discourage the uninhibited dissemination of ideas. For instance, in Falwell v. Penthouse International, the Court found that a magazine interview with a prominent figure was not used for purposes of trade, even though, like "everything that appears in a magazine" it was placed there with the intention of increasing sales. 521 F.Supp 1204, 1210 (Va. 1981). However, in Arlington v. New York Times Co. (New York law is very similar to Virginia law in this area, and Virginia courts frequently look to New York law for guidance. Falwell v. Flynt, 797 F.2d 1270, 1278 (4th Cir. 1986) rev'd on other grounds sub nom Hustler Magazine, Inc. v. Falwell.), the New York Court of appeals found that, while a claim could not be sustained against a news publisher that used a citizen's image in conjunction with a news story, a claim could be brought against the photographer and agent who sold the picture to the newspaper. The court stated that a person "operating independently of [a] publisher" who engaged in "nonconsensual selling of [a] photograph" would have "commercialized the photograph in furtherance of his trade." 55 N.Y.2d 433 (1982).

The statute does not apply to general newsgathering. A person's name or image may be used to promote a report on a newsworthy event or matter of public interest as long as there is a real relationship between the use of a person's name or image and the report, and the report is not an advertisement in disguise. In WJLA-TV v. Levin, the Court decided that a television station did not violate the statute when it used the image of a surgeon who had been accused of sexually assaulting his patients in promotional announcements for a news segment regarding the allegations. The Court conceded the station may have used the promotions partially to increase its ratings during sweeps week, but concluded that the station had not violated the statute, because "[i]t is a newsworthy event and a matter of public interest when a physician is accused by his patients of sexually assaulting them." WJLA-TV v. Levin, 564 S.E.2d 383, 395 (Va. 2002).

Who Can Exercise the Statutory Right Against Misappropriation?

The person whose name or image has been used without consent can bring an action against the offending party within five years of the offense. For twenty years following a person's death, his or her likeness may not be used without the written consent of that person's survivors. Survivors may bring an action for misappropriation under this statute up to twenty years after the death.

DAMAGES

Individuals have the right sue for injunctions preventing offending parties from misappropriating their names and images, as well as, in some circumstances, the right to sue for damages both to compensate for injuries caused by the misappropriation and to punish the offending party.

1. Injunctive Relief

Section 8.01-40 allows a person whose identity has been misappropriated to ask a court to prevent the offender from continuing to use the identity, or, where potential misappropriation is discovered before the name or image is used, to prevent the potential offender from using the identity without consent.

2. Compensatory Damages

A person whose name or image has been misappropriated may sue to recover damages to compensate for any injury he or she suffered as a result of that misappropriation. It is unclear what qualifies as an "injury" under the statute. A celebrity who would generally expect a fee in return for an endorsement can clearly sue to recover the amount of a reasonable fee. In Riggins, the Supreme Court of Virginia affirmed the jury's decision to grant Riggins (a famous football player featured on a real estate flier without his consent) $25,000 in compensatory damages based on evidence that $25,000 would be a reasonable fee for use of his name and that Riggins had received fees for product endorsements running from $20,000 - $90,000.

While the Virginia courts frequently discuss the statute as protecting a property interest in a person's identity, which would indicate that a layperson could receive some minimal compensation for misappropriation of identity, the courts have not applied it in this way. Riggins is the only reported case awarding compensatory damages under this statute, and a Virginia circuit court has held that, under the plain language of the statute, a person can only recover compensatory damages if he or she can show that a quantifiable injury flowed from the misappropriation.

3. Punitive Damages

A jury may award punitive damages if the defendant knowingly used the plaintiff's name or likeness and the use violated the statute. The plaintiff does not need to prove that the defendant knew that he or she was engaging in illegal conduct or that that the defendant engaged in "wanton or malicious" conduct. Punitive damages cannot exceed $350,000. In Riggins, the court affirmed the jury's decision to grant Riggins an additional $25,000 in punitive damages (the court reduced the jury's award from $28,608, since that amount exceeded the amount of damages Riggins had requested).

LIMITATIONS AND DEFENSES

Constitutional

The Constitution prevents the publication of news from constituting a "purpose of trade" under the statute. As a U.S. District Court found in Falwell v. Penthouse International, if the "purposes of trade" requirement were construed to cover general newsgathering, it would "intrude on important constitutional freedoms, which guarantee the uninhibited dissemination of ideas." 521 F. Supp. 1204, 1210 (W.D. Va. 1981). In finding that a newspaper had not violated an assault victim's right to privacy under the statute by publishing her name as part of a news story, a Virginia circuit court held that, "[T]he right of the individual to privacy is limited by the public's right to have a free dissemination of news and information." Barker v. Richmond Newspapers, Inc., 14 Va. Cir. 421 (1973)

Common Law

The use of the plaintiff's name must be reasonably believable to fall within the statute's protection. If a name of image is used as part of a parody that is not reasonably believable, it is not used for advertising or trade purposes under the statute. In Falwell v. Flynt, the Fourth Circuit found that a comedic ad-parody was not reasonably believable when it featured the photo of a well-known reverend along with the text of a fictional interview in which he discussed an incestuous rendezvous with his mother in an outhouse. The add was not reasonably believable both because of its content and because it contained a disclaimer reading "ad parody-not to be taken seriously." 797 F.2d 1270.

The fact that the assertion made in the unauthorized material is true is not a defense to a claim under the statute. For example, in Riggins, the advertising fliers correctly stated that Riggins had lived in the house the real estate agent was selling. Yet the court decided that the right to print truthful information does not include the right to use that information for commercial purposes.

Statute of limitations

Claims under Virginia's statutory right of publicity are subject to a five-year statute of limitations as a claim for injury to property under Va. Code § 8.01-243(B). Lavery v. Automation Mgmt. Consultants, Inc., 360 S.E.2d 336, 339 (Va. 1987).

This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Washington's right of publicity statute, the Washington Personality Rights Act (WPRA), is codified at Wash. Rev. Code Ann. § 63.60. You should familiarize yourself with the statute, but note that certain elements of the law addressing the geographic reach of Washington's post-mortem right of publicity have been held unconstitutional by the United States District Court for the Western District of Washington (see Rights of the Deceased, below).

There is also a common law tort of appropriation in Washington. Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1113 (W.D. Wash. 2010). This tort appears to function comparably to the statutory right of publicity, but has been rarely addressed in courts applying Washington law.

THE STATUTORY RIGHT

What the Statutory Right of Publicity Protects

The statute states that "every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness." § 63.60.010. Likeness includes depictions of "distinctive appearance, gestures, or mannerisms." Wash. Rev. Code Ann. § 63.60.020. "Photograph" includes both still photography and video that makes the individual "readily identifiable." § 63.60.020.

"Personalities" refers to individuals whose identities carry commercial value, such as celebrities. § 63.60.020. The United States District Court for the Western District of Washington has noted the ambiguity of this definition, as any individual's identity can be said to have value. Experience Hendrix, L.L.C. v. Hendrixlicensing.com, Ltd., 766 F. Supp. 2d 1122, 1131 (W.D. Wash. 2011).

What Constitutes a Statutory Violation

Statutory standards for infringement are codified at Wash. Rev. Code Ann. § 63.60.050. The unauthorized use of one's "name, voice, signature, photograph, or likeness" on goods, or for advertising or fund-raising purposes, constitutes infringement. In Experience, the court noted that while the statute only applies to goods sold in Washington, as written it applies to advertising or fund-raising anywhere. Experience at 1135. The statute also applies to those distributing infringing advertising within the state. The statute explicitly applies to both profit and non-profit endeavors. An infringement has not occurred if the owner gives written, oral, express or implied consent to the use of their identity.

In Dale v. Coors Brewing Co., 113 Wash. App. 1017 (2002), the Court of Appeals of Washington held that held that a former employee of a beer company could not claim appropriation against her employer for using her likeness on a poster because she had consented to the use. It further held that because she did not demonstrate the value of her image, nor present evidence of her employer's financial gain from the infringement, "her claims would fail for lack of damages." However, in State v. Hinkle, 131 Wash. 86 (1924), an early case that did not discuss rights of publicity or the tort of appropriation in those terms, the court noted that the "law will presume" damage from the use of one's name.

Statutory Exemptions

Exemptions are codified at Wash. Rev. Code § 63.60.070. Publications related to "cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody" do not qualify as infringement. Publications on these subjects are protected even if they are used in advertising, "if it is clear that the principal purpose of the advertisement is to comment on such matter."

In addition, the statute explicitly exempts certain uses, such as the following:

• "Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies."
• Various forms of media such as literature, theater, film, political campaigns, and online (see statute for complete list). Note that claiming endorsement by an individual in these contexts is not protected.
• Advertisements for certain works listed as exempt in the statute.
• Advertisements and packaging for various artistic works where the artist originally consented to incorporating their name.
• Advertisements or sale of works signed by the individual.
• Use of an identity as part of a description of something else, such as "a place, a legacy, a style, a theory, an ownership interest, or a party to a transaction or to accurately describe the goods or services of a party."
• An "insignificant, de minimis, or incidental use" of an identity.

An owner or employee of a platform in which infringing content was published as advertising is not liable, "unless the advertisement or solicitation was intended to promote the medium itself."

Incorporating the use of multiple identities, as opposed to just one, is not a basis for exemption. However, the individuals who have been infringed upon cannot bring their claim as a class.

Rights of the Deceased

The right of publicity is freely assignable and descends to a deceased person's heirs as property. Wash. Rev. Code § 63.60.030.

The right of publicity survives for ten years after the death of the individual. For "personalities," meaning celebrities and others whose identities carry commercial value, the rights survive for 75 years after death. Wash. Rev. Code Ann. § 63.60.040. A property right exists regardless of whether the right was commercially exploited while the individual was alive. § 63.60.030.

While the statute suggests that its directives addressing survivability and assignability apply regardless of the deceased individual's home state (‘domicile'), this language has been held unconstitutional. In Experience, the United States District Court for the Western District of Washington declared that the WPRA's choice of law provisions violated the Due Process, Full Faith and Credit, and Commerce Clauses of the U.S. Constitution. The court held that, as the statute would apply Washington law in situations where Washington lacked "significant contact" to the events and parties involved, the statute's choice-of-law provisions were "arbitrary and unfair," and therefore violated the Due Process and Full Faith and Credit Clauses. Moreover, as the choice-of-law provisions would allow Washington to apply its statutes to commercial transactions taking place outside of the state, they also violated the Commerce Clause. As a result, the court held that because Jimi Hendrix died while domiciled in New York, Washington law did not apply and ultimately his right of publicity did not descend to his heirs.

Damages and other remedies

Damages and other remedies are described in Wash. Rev. Code § 63.60.060. Courts can grant injunctive relief on "reasonable terms." Courts can also order the destruction of infringing products and elements of their creation process, such as molds or negatives.

Damages are calculated from the greater of $1,500 or the actual damages suffered by the plaintiff, plus the infringer's profits. To calculate profits, plaintiffs are required to prove defendant's revenues and defendants to prove their own deductible expenses. Each infringing work constitutes a single instance of infringement, regardless of how many copies were made or how many times the plaintiffs appear within.

"Washington expressly prohibits punitive damages as a violation of public policy unless explicitly authorized by statute." Jongeward v. BNSF R. Co., 174 Wash. 2d 586, 594, 278 P.3d 157, 160 (2012). As the statute does not include a reference to punitive damages, they are not available.

The statute notes states that "the remedies provided for in this section are cumulative and are in addition to any others provided for by law," suggesting that incremental common law damages may be assessed independently.

THE COMMON LAW RIGHT

Only one recent case explicitly addresses a plaintiff's common law tort of appropriation. In Aronson, the United States District Court for the Western District of Washington noted that while a common law cause of action existed for appropriation, it did not apply to "the publication of matters in the public interest" (see Defenses, below). Aronson at 1113.

In Dale, the plaintiff brought a WPRA claim and a claim for "common law invasion of privacy," presumably for appropriation, although the opinion does not specify. The Court of Appeals of Washington held that both claims failed as the plaintiff had consented to the use of her image.

These examples notwithstanding, there may be historical precedent for a successful common law right of publicity claim. In Hinkle, a case from 1924, the Supreme Court of Washington held that a political organization could not use the name of a politician against his will, and provided injunctive relief. The decision did not reference appropriation or a right of publicity by name.

DEFENSES TO THE STATUTORY AND COMMON LAW RIGHTS

In Aronson, a plaintiff depicted in a healthcare documentary claimed unauthorized misappropriation of his identity, citing both common law and the statute. The United States District Court for the Western District of Washington held that the documentary was both entitled to First Amendment Protection and exempted from the statute.

In Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992), the United States District Court for the Western District of Washington suggested that Washington law would protect the producers of a play that incorporated a recreation of a performance by a deceased blues singer, "especially given the fact that the Washington State Constitution places an even higher value upon the principle of free speech than the Federal Constitution." While the court did not apply a constitutional analysis, it did note "the clear direction in which constitutional law points," and cited a New York case holding that free speech considerations trumped the post-mortem right of publicity. Note that this decision was written prior to the enactment of the WPRA.

Although no Washington court has analyzed which statute of limitations applies to right of publicity claims in Washington, it is likely that the state's general three-year statute of limitations for injury to persons or property would apply. Wash. Rev. Code § 4.16.080(2).