Superhero Privacy Rights, Part Two

In a prior post we discussed the first of the four privacy torts, intrusion.  In this post we will move on to the public disclosure of private facts.  In particular, we’re interested in whether the public disclosure of the private fact of a superhero’s secret identity would give rise to a tort claim.  Unfortunately, in most cases it probably would not.

I. Definition

The definition of disclosure varies slightly among jurisdictions, so we will use the definition in the Restatement (Second) of Torts § 652D, which has been adopted directly by some jurisdictions.  See, e.g., Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. Ct. App. 1989:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

II. Analysis

As an initial matter, note that this only covers public disclosure, which generally means wide disclosure to many people. “Except in cases of physical intrusion, the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.”  Porten v. Univ. of San Francisco, 64 Cal. App.3d 825, 828 (Cal. Ct. App. 1976).  We’re really talking about the media or other broad disclosure, not gossip among friends or family, although note that the physical intrusion exception may cover someone who breaks into the superhero’s headquarters in order to determine his or her secret identity.

Now let’s break the analysis down according to the two main elements, (a) and (b).  As discussed in the post on intrusion, I think the revelation of one’s secret identity would be highly offensive to a reasonable person for two reasons.  First, for many superheroes, it would mean the end of any hope for a normal life: journalists, fans, and process servers would become an endless source of annoyance.  Second, it would pose a significant danger to the superhero’s friends and family, who would become targets for his or her enemies.  Having one’s secret identity disclosed would “shock the ordinary person to the point of emotional distress.” Roe ex rel. Roe v. Heap, 2004-Ohio-2504, 2004 WL 1109849 (Ohio Ct. App. 10th Dist. Franklin County 2004).

The second element is harder to satisfy because it raises First Amendment issues, and it is this element that kills many claims of invasion of privacy by disclosure. From Diaz v. Oakland Tribune, 139 Cal. App.3d 118, 126 (Cal. Ct. App. 1983) (citations omitted):

[T]he right to privacy is not absolute and must be balanced against the often competing constitutional right of the press to publish newsworthy matters.  The First Amendment protection from tort liability is necessary if the press is to carry out its constitutional obligation to keep the public informed so that they may make intelligent decisions on matters important to a self-governing people. However, the newsworthy privilege is not without limitation. Where the publicity is so offensive as to constitute a “ ‘morbid and sensational prying into private lives for its own sake, …’ ” it serves no legitimate public interest and is not deserving of protection.

As you can see, the First Amendment exception is very broad, and what limits there are may not extend as far as a superhero’s secret identity.  Here, to the extent there is any protection, I think it depends on who the alter ego is.  Knowing that a billionaire industrialist who is involved in politics through donations and fundraising (i.e. Bruce Wayne) is also Batman might well be a “matter important to a self-governing people” about which the public should be informed.  But knowing that a particular news photographer is Spiderman may be less relevant to the public, especially when Peter Parker was a minor.

Another factor that may be relevant is whether the disclosing party could reasonably foresee a risk of criminal misconduct towards the superhero or his or her friends and family.  At least one court has held that the disclosure of such endangering information is not protected. Remsburg v. Docusearch, 149 N.H. 148 (2003).  But note that other courts have erred on the side of newsworthiness, even where the danger was evident (in one case, death threats).  Duran v. Detroit News, 504 N.W.2d 715 (Mich. Ct. App. 1993).

A few other things to note. First, all of this basically goes out the window if the superhero is accused of a crime (unless he or she is a minor). This is actually a pretty big deal, because many if not most superhero characters will be accused of a crime at some point, and the legal status of so-called “vigilantes” is frequently a subject of some debate, particularly since Frank Miller’s The Dark Knight Returns. But even the most upstanding superheroes are occasionally framed for crimes committed by others; this is actually a recurring theme in many continuities.

In addition, the more famous the superhero, the less protected his or her identity:

[T]here is a public interest which attaches to people who by their accomplishments, mode of living, professional standing or calling, create a legitimate and wide-spread attention to their activities. Certainly, the accomplishments and way of life of those who have achieved a marked reputation or notoriety by appearing before the public[, for instance] actors and actresses, professional athletes, public officers, noted inventors, explorers, war heros, may legitimately be mentioned and discussed in print or on radio or television. Such public figures have to some extent lost the right of privacy, and it is proper to go further in dealing with their lives and public activities than with those of entirely private persons.

Carlisle v. Fawcett Publications, Inc., 201 Cal. App. 2d 733, 746–47 (5th Dist. 1962).  Similarly, “[w]hile public figures do not relinquish all privacy rights, … the heightened public interest in their personal activities is a factor to be weighed in balancing the competing interests.” Gilbert v. National Enquirer, Inc., 43 Cal. App. 4th 1135, 1146 (2d. Dist. 1996).  So while Batman benefits a great deal from Bruce Wayne’s money and connections, it’s a double-edged sword.

Finally, I’ll note that it is possible, at least in some jurisdictions, to bring the lawsuit under a fictitious name so as to avoid further publicity.  In the case of a superhero’s secret identity being revealed, however, I don’t think such a simple ruse would do much to avoid the gaze of the media for long.

III. Conclusion

Ultimately, the fact that superheroes put themselves in the public eye, coupled with the courts’ reluctance to interfere with the media, may mean that a superhero has little recourse against someone who discloses the superhero’s secret identity.  The best case would be a lesser-known superhero whose secret identity is an average person and whose friends and family would be put at significant risk if his or her identity were disclosed.  The further one gets from those facts, the less likely a court is to intervene.

21 responses to “Superhero Privacy Rights, Part Two

  1. Interesting but I would argue that in a world where these superheroes regularly act to stop global threats (i.e. planet eating aliens or insane private citizens launching nuclear missiles) the courts thinking might be shifted, particularly if they were employed as secret agents by the U.S government.

    • That could be, but we try to focus on the law of the real world unless we have a concrete reason to think that the law is different in the comic book world (e.g. the Keene Act in Watchmen). We only speculate about the law being different when it’s plain that it must be because the law and the facts simply don’t mix (e.g., the state actor doctrine must be weaker in the comic book universe).

      That said, you’re right about secret agents working for the government. Their identity is protected by the Intelligence Identities Protection Act. The most relevant part is 50 USC 421.

      • On that note can you say if the Registration law in Marvel universe has been clearly defined? Looking at several different comic books I personally find it to be a bit confusing, possibly because it seems to be unpopular with the writers.

  2. Might Sarbanes-Oxley be relevant here? Superheroes aren’t quite whistleblowers in the traditional sense, but:

    https://secure.wikimedia.org/wikipedia/en/wiki/Sarbanes-Oxley_Act#Sarbanes.E2.80.93Oxley_Section_1107:_Criminal_penalties_for_retaliation_against_whistleblowers

    “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any federal offense, shall be fined under this title, imprisoned not more than 10 years, or both.”

    In other words, since Spider-Man handed the cops an assortment of criminals who have committed federal crimes, and since it’s clear that the revelation would damage his livelihood (or life), due to that very activity, then he should be eligible for such protection, I would think. It’s not within the narrower spirit of the law of preventing firings for calling OSHA, but it sounds like a close match otherwise.

    • That’s a good point. I think it is a useful tool for preventing or addressing the harm that might come from a superhero’s identity being revealed, but I’m not sure it would apply to identity disclosure, unless the disclosure was unlawful in the first place, which I think is unlikely in most cases. The reason is that the act requires that the retaliatory action itself be harmful, and I think a court would say that if the disclosure were perfectly legal then doing it out of spite would not be enough to trigger this section. Who knows, though, the courts may decide that “harmful” is very broad and does not require the underlying action to be illegal on its own. In any case this provision would certainly add some teeth to any harmful retaliatory actions against superheroes, however that’s defined.

      But note the “intent to retaliate” requirement. I think that would only apply to, for example, someone whom the superhero helped put away. A criminal who had never been caught and just wanted to get the superhero out of the way might not fall under that provision.

      • Ah, I see. By “retaliate,” it’s meant that the intent is to specifically avenge a identifiable wrong on the actor. I assumed it might be interpreted more broadly, in that a reporter might simply find a Batman or Spider-Man offensive and reveal the identity on that basis.

        It wouldn’t stop the run-of-the-mill paparazzi selling pictures, certainly, but they’re (blissfully) extremely infrequent in their comic book appearances, leaving us with crusading reporters with a bone to pick and villains or their lackeys.

  3. It’s my understanding that the DC Universe has laws specifically protecting such things as superheroes’ right to testify in court without revealing their ID, so you can assume more protections for secret IDs than exist in reality.

  4. I saw your court case citation Roe et al v Heap, and thought you were inventing a body of case law, here based on a suit involving The Heap, a character from yesteryear.

    • Nope, it’s a real case. We really stay away from inventing law out of whole cloth. Fictional facts are one thing; fictional law is another. If you’re going to make up both it’s basically legal fan fic at that point, which I guess has its place, but it’s not what we do here.

  5. Christina Eichelkraut

    I’m only a 1L, so I may be out of my depth here, but couldn’t the superhero alter ego use administrative laws (such as those that allow the FBI to issue false identification documentation to protected witnesses) to protect their superhero identity? And, if so, wouldn’t that open the door to filing a publication injunction based on national security?

    After all, superheros’ actions often benefit municipal, state and (often) the federal government and thus it would be in the state/federal interest to protect the identity, thus allowing the superhero to continue to protect its citizens and property. Granted, the superhero may have to sign a work agreement with the government, but if the terms were broad enough this would an administrative formality.

    Further, revealing the identity of the superhero could also disclose the superhero’s residence or domicile, thus making his or her home country a perceived threat by other nations and putting it at risk. For example, if Iraq knows the United States has Weapon X, it would certainly make it more difficult to take the policy stance opposing Iraq’s obtaining nuclear weapons. Certainly, the U.S. would become even more of a target, particularly wherever the superhero lives (in the cases of Batman and Superman, densely-populated urban centers of Gotham and Metropolis). The Green Lantern, with his ability to travel to other galaxies, could also be seen as a hostile actor in the eyes of Russia, particularly during an arms or space race.

    In the same vein, some of the identities might even be property of the U.S. government, e.g. Wolverine (at least as Weapon X) was a government-funded project. Captain America certainly worked on behalf of the U.S. to fight the spread of Communism and, one could argue, was not always acting as an independent contractor for the U.S. military but certainly as an employee. At any rate, he costume alone would seem to be the equivalent of flying the U.S. Flag over a war ship. Depending on the superhero’s willingness to contract with the government (Wolverine, probably not so much; Spider Man maybe, though MJ is constantly getting attacked as is, Captain America, definitely, and Colusses probably would in exchange for legal citizenship and amnesty for entering the country illegally).

    • That’s entirely possible, and government-supplied identities were touched on in a post about superheroes and alter egos. The problem is that kind of close cooperation may make them government agents, which opens up a big can of worms in terms of liability for the government and the superhero. It’s not an insurmountable problem, but having to operate more like the traditional police would certainly cramp a typical superhero’s style.

  6. Would physically unmasking the superhero/superheroine in question be considered physical assault?

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  9. Note: I couldn’t find any rules about necromancy, so if I am violating any I apologize.

    “But knowing that a particular news photographer is Spiderman may be less relevant to the public, especially when Peter Parker was a minor”.

    Actually, this turned out to be very relevant during/after Civil War. Since Parker’s primary source of income for many years was selling pictures of himself (as Spiderman) to the Daily Bugle and he did so without disclaimer (that he was Spiderman), it threw into question the integrity of the paper on every story based on those pictures. J. Jonah Jamison ended up suing Parker (but later dropping it) as a result.

    Something that (to my knowledge) was never addressed was any potential ramifications on any other actions that resulted from this disclosure. If Vulture was captured by Spiderman for bank robbery (and photographed by Parker), and we now learn that they are the same person (so Spiderman arguably has a previously undisclosed financial motive for arresting Vulture), might that not provide some basis for people to look at all of Spiderman’s old captures in a new light? (That is, is he capturing them because they are guilty or because he wants the money for the pictures?).

    Either way, it seems very relevant that the public know that the hero is/was profiting off their work without them knowing about it.

  10. @Tom: I would think that would be an issue only if a connection could be drawn between Spidey and Vulture (suggesting collusion or conspiracy, in other words).

    That is to say that there would be a problem if it could be shown that Spidey induced Vulture to commit the crime for the purpose of creating an opportunity for Spidey to take a “selfie” (in effect) to sell to the media. Note that in this case, Spidey would be on the hook for the ACTUAL crime committed (as a co-conspirator) above and beyond any allegation of “fraud” regarding the pics.

    That would be legally difficult to establish, but even the allegation would be devastating to Web-Head’s public image and his standing in the court of public opinion.

    Otherwise, Spidey “selfie-ing” for profit would be basically the same legal situation as a “bounty hunter”. Vulture independently commits crimes, and Spidey brings him in/down, coincidentally collecting pay for doing so.

    Again, however, that might not protect him in the “court of public opinion”. It is an unfortunate truth that seeds of suspicion, once planted, are almost entirely impossible to completely root out.

    • Sorry, let me be more clear. I was talking about the relevance of his privacy right to his secret identity. Given that the pictures are of himself and taken by himself and sold for publication, I suspect the court would say he’s knowingly made himself a public figure and isn’t going to win when someone tries to expose his identity in print.

      As opposed to Batman who (usually) tries to stick to the shadows and avoid media attention.

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