Superhero Privacy Rights, Part Four

In the first three installments of this series, we discussed the invasion of privacy torts of intrusion, disclosure, and appropriation, as well as the closely related right of publicity.  Here we’ll round out our discussion of privacy with the tort of false light invasion of privacy and the related defamation torts of libel and slander.  In an upcoming related series, we’ll talk about how superheroes can use copyright and trademark law to manage the use of their name and likeness.

I. False Light

False light invasion of privacy is based on the injury to a person’s dignity caused by presenting them in public in a false light, for example, falsely linking someone to a controversial issue (e.g. using a picture of a non-drug-using plaintiff to illustrate a news story about drug use).  In the comic book context, an example might be a news story about “superheroes who have gone too far” illustrated with a picture of a mild-mannered superhero who had never hurt anyone.  The news story falsely links the superhero with the misuse of superpowers.

False light is a relatively new tort, but it has been adopted by a majority of jurisdictions.  West v. Media General Convergence, Inc., 53 S.W.3d 640, 644 (Sup. Ct. Tenn. 2001).  Most states have adopted the definition from the Restatement (Second) of Torts:

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.

Note that many jurisdictions have held that mere negligence is sufficient if the victim is not a public figure, but in this case most superheroes are public figures, so knowledge of or reckless disregard of falsity is required. Examples of false light highly offensive to a reasonable person and potentially applicable here include drug use, teen-age crime, police brutality, and organized crime.  News stories or other publicity that falsely connect a superhero to such things could give rise to a false light case.

Before we move on to defamation, I should mention two points about false light invasion of privacy that distinguish it from defamation.  First, false light does not require an out and out accusation.  It is sufficient that the false connection be drawn and that the defendant act with knowledge or reckless disregard for that connection.  Second, false light protects injury to a person’s dignity, not their reputation.

II. Defamation (Libel and Slander)

Most people are familiar with libel and slander, the two main species of defamation, which really only differ according to the mode of communication.  The elements of defamation, according to the Restatement are:

(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Let’s break that down.  First, the statement must be both false and defamatory. “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  One can see how this could apply to superheroes.  Certainly a statement that deterred fellow superheroes from working with a superhero or that made people reluctant to seek out or accept a superhero’s aid would be defamatory.

Second, a third person must be told.  It’s not defamation to think mean things about another person or even to tell them to their face, so long as no one else hears.  Broad publication is not necessary, however, though the broader the publication the greater the damage, in general.

Third, the required fault depends on the person being defamed.  If it’s a public figure, such as a superhero or a famous secret identity like Bruce Wayne, then the First Amendment requires a higher standard than negligence: knowledge of falsity or reckless disregard of the truth or falsity of the statement.  New York Times, Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).  Defamation of a private figure requires only negligence.

The fourth requirement goes to the issue of damages. “Special harm” means actual economic losses (e.g. losing a job or customers).  But some kinds of defamation are so bad that damage is presumed.  Traditional examples include accusations of criminal activity, sexual misconduct, loathsome disease (usually STDs, but one could imagine extending it to false accusations of being a mutant or otherwise atypical), dishonesty, and accusations that affect one’s business or trade.  Certainly an accusation that a superhero is behaving criminally or being dishonest would fit, as would examples of a disaster or attack being the fault of a superhero rather than the supervillain who actually caused it.  An essentially full-time superhero or a superhero that accepted rewards would have an argument for defamation in cases of accusations that affect his or her heroic activities.

Unless the plaintiff can show special harm (i.e. actual economic damage), then the measure of damage in a defamation case is the damage to the plaintiff’s reputation.  Since reputation is very important to a superhero (nobody wants to be rescued by a creep), the ability to sue people for defamation may be an important tool for maintaining one’s reputation.  However, lawsuits are public, and suing someone for defamation can bring unwanted and lasting attention, an example of the Streisand Effect.

III. Conclusion

False light and defamation suits can be used after-the-fact to seek compensation for false implications and accusations that harm a superhero’s dignity or reputation.  However, a court cannot force a defamer to publish a reply from the victim.  Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).  And it is likely that a court cannot force a defamer to print a retraction or correction, either.  Given those limitations, superheroes should weigh carefully whether a lawsuit is worth it.

10 responses to “Superhero Privacy Rights, Part Four

  1. So how bad could Peter Parker sue J. Jonah Jameson, based on all this?

    • Remembering that as a consequence of Civil War but before the “One More Day”/”Brand New Day” business, JJJ had filed suit against Parker within hours after Peter went public. If not for Peter’s alienation from the Stark-Richards faction, a counter-suit subplot might have been an entertaining way to spend a year reading.

      • That would have opened the door for some sheer awesome. Matt Murdock defending Peter, Fantastic Four as character witnesses, random idiots trying to attack the proceedings only to find basically the extended Marvel all-stars in the crowd…

      • As I commented in an earlier post, JJJ sued Parker not to get the drop on him, but because he’d basically been selling pictures to the Bugle under false pretenses in a way that potentially could significantly damage the Bugle’s reputation.

        For much of his comic career, Peter has made his living selling photos to the Bugle. A majority of those photos were of him as Spiderman, and some of them were actually staged to some degree (he’d fight in a way to lure bad guys in front of the cameras). He sold the photos to the Bugle without providing notice that they were of him. This sets up a potential for a conflict of interest (or the perception of one, which can be just as bad).

        Therefore, once Peter revealed that he was Spiderman, the legitimacy of all photos (and by extension the stories they are attached to) can be called into question. Did this really happen? Or was it faked? Did Vulture actually rob that bank? Or did Peter need a few bucks and went looking for the nearest bad guy to pin it on.

        Again, while we as audience members may know that the photos are (for the most part) legit, Bugle readers may now have doubt. Reputable journalists are generally expected to make it very clear when they have a potential conflict of interest, and either distance themselves from it (by not being the ones involved with the story) or make sure that they bring it up so the readers are aware. By not doing so Peter has damaged the credibility of the Bugle.

    • TimothyAWiseman

      Well, without copies of the printed articles to reference, my suspicion is not at all.

      Remember that Spider-man is a public figure, which raises the bar to knowledge or reckless disregard for the truth. My impression has always been the Jameson has always beleived every word he was printing. In fact, most of it was actually true, albiet written in a way least favorable to Spiderman.

      Truth is a strong defense, and when dealing with a public figure even having a reasonable basis for believing it is true will generally suffice. Moreover, while it is very dependent on jurisdiction, many jurisdictions also recognize “opinion” or some variation of it as a defense. This is likely to cover whatever Jameson cannot defend as reasonably beleiving to be true at the time.

      • I don’t think JJJ thought it was all literally true. He may have thought Spiderman was a criminal in the same sense that all vigilantes would be criminals. I mean, if I see two guys fighting one guy I might step in and help the one guy, especially if I had superpowers but if the two guys turn out to be undercover cops then I could be charged (I would think) with obstruction of justice. (I don’t think I would be charged with assaulting a police officer because I didn’t know they were police officers.) Perhaps if Spiderman restricted his activities to saving people rather than punching bad guys and JJJ referred to him as a criminal then that would be a clear case of libel. But then Spiderman would still have to file suit and I think he’d have to file suit as Peter Parker. Now, granted, JJJ didn’t know that Spiderman was Peter Parker but Peter Parker could point out that once people know that he and Spiderman are the same person, people will think Peter Parker is a criminal because JJJ said he was. This might make it difficult for Peter to get a higher paying job so I think he would have had a very strong case. Of course, JJJ might have been counting on Spiderman having to reveal his identity in order to win a libel suit. When Peter Parker actually came out as Spiderman, JJJ might have simply put forward his suit as a preemptive strike, figuring Peter was going to sue him anyway.

      • Oh now here’s a good question! If Spiderman (or Batman) was a state actor could he be charged with the equivalent of police brutality? For that matter, if as a private citizen I see somebody taking a TV out of a window and I attack him and force him to the ground, can he charge me with assault if it turns out it was his TV and his house? And if he is a thief can he charge me with assault anyway because people are to be presumed innocent? (I would think the answer is “Yes, he could but good luck with that” because the police, the owner of the house, the DA’s office and the general public would all probably think I did the right thing.)

      • On second thought, my comment about “police brutality” sounds a bit ignorant. The actual charge would be assault (Right?) and it wouldn’t matter if it is a cop or a private citizen. In either case, you would be required to use only the minimum amount of force necessary to restrain the criminal. If anything, the police have greater freedom because they are allowed to carry guns and can shoot fleeing suspects, provided they identify themselves first. I don’t think a private citizen would be allowed to shoot somebody accused of a crime unless the suspect posed an imminent danger to himself or others.

      • TimothyAWiseman

        @Martin Phipps

        You make a number of interesting comments, and I am not entirely sure how to respond to most of them, but I can clearly address one.

        In your last comment you talk about police being able to shoot fleeing suspects. To the best of my knowledge that has never been true in a strict legal sense. Now, there have been times and places where the police where authorized to shoot a “fleeing felon”, but that had several requirements including crucially that the crime in question be a felony and in most places that felony had to be of a violent nature which would make the fleeing felon presumably dangerous.

        Even this has been severely restricted over time. In Tennessee v. Garner (1985), the Supreme Court ruled that deadly force was no longer permissible to merely stop a felon from escaping.

  2. Pingback: Batman: The Musical and the Right of Publicity | Law and the Multiverse

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