wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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without his consent. T he right of one to exhibit himself to the public at
all proper times, in all proper places, and in a proper manner is em
braced within the right of personal liberty.” T he use of one’s likeness
for advertising purposes can bring a person to “a realization that his
liberty has been taken away from him . . . that he is for the time being
under the control of another, that he is no longer free, and that he is in
reality a slave.”292 T he court spoke in terms of loss of liberty, not in
terms of loss of m onetary value. The injury was that Pavesich had been
used against his will. Similarly, according to Justice John Clinton
Gray’s dissent in Roberson, “[W]e may not say that the plaintiff’s com
plaint is fanciful, or that her alleged injury is purely a sentimental one.”
H e concluded that “the conspicuous display of her likeness in various
public places has . . . humiliated her by the notoriety and by the public
comments it has provoked.”295 Justice Gray alluded to what I believe to
be the crux of the harm: unwanted notoriety. T h e appropriation of
Roberson’s image forced her to become a public figure. In addition to
bringing her unwillingly into the public sphere, the appropriation de
fined her public role and public persona.
T h e interest safeguarded by protections against appropriation is
control of the way one presents oneself to society. T he products and
causes people publicly endorse shape their public image. W hen people
are associated with products, they become known in terms of these
products. M any public figures take great care with their endorsements
because these endorsements shape their public image. For example, in
1903, Thom as Edison sought to enjoin the Edison Polyform Manufac
turing Company from using his picture on bottles of a pain reliever
that Edison himself had invented earlier in his career.294 Similarly,
Jacqueline Onassis sued a clothing company for the use of a lookalike
158
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x
o
n
o
m y o f P
r i v a c y
in an advertisement because “she has never permitted her name or pic
ture to be used in connection with the promotion of commercial prod
ucts,” and her “name has been used sparingly only in connection with
certain public services, civic, art and educational projects which she has
supported.”293 Thus appropriation can be harmful even if it is not hu
miliating, degrading, or disrespectful. Being unwillingly used to en
dorse a product resembles, in certain respects, being compelled to
speak and to represent certain viewpoints. As the Federal Supreme
Court of Germany declared in an opinion forbidding the use of a
person’s photograph on an advertisement without his consent, “[T]he
person depicted is deprived of the freedom to deal with this item from
his individual sphere on the basis of his own resolution.”296
Protection against appropriation establishes what society considers
appropriate for others to do in shaping a person’s identity. The harm,
then, is an impingement on the victim’s freedom in the authorship of
her self-narrative, not merely her loss of profits. Prosser, however, used
the term “appropriation,” which is a word that pertains to property.
Perhaps a better word to describe the harm is “exploitation.” I con
tinue to use the word “appropriation,” however, because it has become
commonly known in relation to this kind of harmful activity.
Distortion
Because it is my name! Because I cannot have another in my life!
Because I lie and sign myself to lies! Because I am not worth the
dust on the feet of them that hang! How may I live without my
name? I have given you my soul; leave me my name!
—John Proctor in Arthur Miller, The Crucible (19S3)297
Defamation law has existed for centuries. Consisting of the torts of libel
and slander, defamation law protects against falsehoods that injure a
person’s reputation. Defamation law has its origins in the ancient
Roman law of injuria,298 During the early Middle Ages, defamation was
considered so contemptible that it was punished by slicing off the
tongue.299 Today, in the United States, in order to be liable for defama
tion, one must make “a false and defamatory statement concerning an
other.”300 A “defamatory” statement “tends so to harm the reputation of
A Taxonomy o f Privacy
159
another as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him.”301 False light, a
more recent tort inspired by W arren and Brandeis’s article, protects
against giving “publicity to a matter concerning another that places the
other before the public in a false light” that is “highly offensive to a rea
sonable person.”302 It safeguards “the interest of the individual in not
being made to appear before the public in an objectionable false light or
false position, or in other words, otherwise than as he is.”303
Countries around the world protect against falsehoods that injure a
person’s reputation. H ungary’s constitution, for example, declares that
“everyone has the right to the good standing of his reputation.”
Poland guarantees that every person “shall have the right to legal pro
tection . . . of his honor and good reputation.” Portugal’s constitution
protects people’s right to “good name and reputation.” Russia safe
guards “one’s honor and good name.” Sri Lanka’s constitution pro
vides that a person “shall not be subjected to unlawful attacks on his or
her reputation.”304 T he United Nations Universal Declaration of
Human Rights of 1948 declares that a person shall not be subjected to
“attacks upon his honor and reputation.”303 These are just a few ex
amples. Beyond constitutional protections, countless nations have
laws protecting against defamation. For example, defamation law in
India applies when the falsehood lowers a person’s “moral or intellec
tual character.”306 In Japan, the law protects against defamation that
damages “the social reputation that a person enjoys due to his or her
personal merits such as personality, character, fame, and credi
bility.”307 According to a Japanese proverb, “A person lives for one
generation; a good name lasts forever.”308 Defamation law exists in all
W estern European nations.309

without his consent. T he right of one to exhibit himself to the public at

all proper times, in all proper places, and in a proper manner is em

braced within the right of personal liberty.” T he use of one’s likeness

for advertising purposes can bring a person to “a realization that his

liberty has been taken away from him . . . that he is for the time being

under the control of another, that he is no longer free, and that he is in

reality a slave.”292 T he court spoke in terms of loss of liberty, not in

terms of loss of m onetary value. The injury was that Pavesich had been

used against his will. Similarly, according to Justice John Clinton

Gray’s dissent in Roberson, “[W]e may not say that the plaintiff’s com

plaint is fanciful, or that her alleged injury is purely a sentimental one.”

H e concluded that “the conspicuous display of her likeness in various

public places has . . . humiliated her by the notoriety and by the public

comments it has provoked.”295 Justice Gray alluded to what I believe to

be the crux of the harm: unwanted notoriety. T h e appropriation of

Roberson’s image forced her to become a public figure. In addition to

bringing her unwillingly into the public sphere, the appropriation de

fined her public role and public persona.

T h e interest safeguarded by protections against appropriation is

control of the way one presents oneself to society. T he products and

causes people publicly endorse shape their public image. W hen people

are associated with products, they become known in terms of these

products. M any public figures take great care with their endorsements

because these endorsements shape their public image. For example, in

1903, Thom as Edison sought to enjoin the Edison Polyform Manufac

turing Company from using his picture on bottles of a pain reliever

that Edison himself had invented earlier in his career.294 Similarly,

Jacqueline Onassis sued a clothing company for the use of a lookalike

158

A T a

x

o

n

o

m y o f P

r i v a c y

in an advertisement because “she has never permitted her name or pic

ture to be used in connection with the promotion of commercial prod

ucts,” and her “name has been used sparingly only in connection with

certain public services, civic, art and educational projects which she has

supported.”293 Thus appropriation can be harmful even if it is not hu

miliating, degrading, or disrespectful. Being unwillingly used to en

dorse a product resembles, in certain respects, being compelled to

speak and to represent certain viewpoints. As the Federal Supreme

Court of Germany declared in an opinion forbidding the use of a

person’s photograph on an advertisement without his consent, “[T]he

person depicted is deprived of the freedom to deal with this item from

his individual sphere on the basis of his own resolution.”296

Protection against appropriation establishes what society considers

appropriate for others to do in shaping a person’s identity. The harm,

then, is an impingement on the victim’s freedom in the authorship of

her self-narrative, not merely her loss of profits. Prosser, however, used

the term “appropriation,” which is a word that pertains to property.

Perhaps a better word to describe the harm is “exploitation.” I con

tinue to use the word “appropriation,” however, because it has become

commonly known in relation to this kind of harmful activity.

Distortion

Because it is my name! Because I cannot have another in my life!

Because I lie and sign myself to lies! Because I am not worth the

dust on the feet of them that hang! How may I live without my

name? I have given you my soul; leave me my name!

—John Proctor in Arthur Miller, The Crucible (19S3)297

Defamation law has existed for centuries. Consisting of the torts of libel

and slander, defamation law protects against falsehoods that injure a

person’s reputation. Defamation law has its origins in the ancient

Roman law of injuria,298 During the early Middle Ages, defamation was

considered so contemptible that it was punished by slicing off the

tongue.299 Today, in the United States, in order to be liable for defama

tion, one must make “a false and defamatory statement concerning an

other.”300 A “defamatory” statement “tends so to harm the reputation of

A Taxonomy o f Privacy

159

another as to lower him in the estimation of the community or to deter

third persons from associating or dealing with him.”301 False light, a

more recent tort inspired by W arren and Brandeis’s article, protects

against giving “publicity to a matter concerning another that places the

other before the public in a false light” that is “highly offensive to a rea

sonable person.”302 It safeguards “the interest of the individual in not

being made to appear before the public in an objectionable false light or

false position, or in other words, otherwise than as he is.”303

Countries around the world protect against falsehoods that injure a

person’s reputation. H ungary’s constitution, for example, declares that

“everyone has the right to the good standing of his reputation.”

Poland guarantees that every person “shall have the right to legal pro

tection . . . of his honor and good reputation.” Portugal’s constitution

protects people’s right to “good name and reputation.” Russia safe

guards “one’s honor and good name.” Sri Lanka’s constitution pro

vides that a person “shall not be subjected to unlawful attacks on his or

her reputation.”304 T he United Nations Universal Declaration of

Human Rights of 1948 declares that a person shall not be subjected to

“attacks upon his honor and reputation.”303 These are just a few ex

amples. Beyond constitutional protections, countless nations have

laws protecting against defamation. For example, defamation law in

India applies when the falsehood lowers a person’s “moral or intellec

tual character.”306 In Japan, the law protects against defamation that

damages “the social reputation that a person enjoys due to his or her

personal merits such as personality, character, fame, and credi

bility.”307 According to a Japanese proverb, “A person lives for one

generation; a good name lasts forever.”308 Defamation law exists in all

W estern European nations.309