Practical Tips for Avoiding Private Facts, Misappropriation, and Right of Publicity Claims

While you can't always eliminate your legal risks when publishing private information about individuals or using peoples' names and likenesses, there are a number of ways you can minimize your risk of being on the receiving end of a publication of private facts, misappropriation, or right of publicity lawsuit. Some suggestions include:

  • Report on subjects and facts that are newsworthy: Reporting on topics and facts that are legitimately newsworthy typically will not invade the privacy of individuals portrayed in your work or unlawfully exploit their names or likenesses. It is not always easy to determine whether a particular topic or fact is newsworthy, but common sense can get you a long way. Avoid obscure and salacious details that don't have direct bearing on your topic, and don't use someone's photograph to illustrate your work unless they have some reasonable connection to the issue at hand. Following this latter advice can also help you avoid claims for defamation and false light.

  • Gather your information from publicly available sources whenever possible: If you rely on publicly available information, such as property records and public financial information, it is unlikely that your publication of that information will invade someone's privacy. Getting information from publicly available court records is an especially good idea because the First Amendment protects you when publishing truthful information obtained from court records and doing so may also protect you from defamation liability under the neutral report privilege, even if the information turns out to be false. You should avoid using advanced equipment, such as telephoto lenses or highly sensitive microphones, to obtain information or photographs that you could not have gotten otherwise. Gathering information in this way may expose you to liability for intrusion, and publishing material obtained through these methods is more likely to violate someone's privacy.

  • Be upfront about your intended use of information and photographs: When you interview or take photographs of someone, be clear with that person about how you intend to use the information gathered or the photographs taken. This will give the individual a chance to express any concerns. It is better for you to know about these concerns ahead of time, so that you can make an informed decision about whether to go ahead as planned. In addition, being upfront provides context for you to ask for consent, discussed immediately below.

  • Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to publication of private facts, misappropriation, and right of publicity claims. When interviewing someone or taking photographs for later publication, it is good practice to seek consent to use the information gathered and/or photographs taken on your website or blog. Get consent in writing whenever possible. There are two consent forms or "releases" that may be helpful -- a model release and an interview release. See Publication of Private Facts and Using the Name or Likeness of Another for details on these releases, samples of which are available on the Internet. If you decide to use one or more of these releases, you will need to customize it to fit you purposes and circumstances. Remember that minors cannot give consent on their own behalf, and that a consenting party generally may revoke consent any time prior to publication.


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