Right to Privacy: Appropriating the Plaintiff’s Identity for the Defendant’s Commercial Benefit

This tort happens when a person’s exclusive right to his name, image, personality and other similar private attribute is utilized by another, where the defendant seeks to gain commercial benefit from such use.

In a way, it is similar to a business having rights to its own trademark. A person has the right to the exclusive use of his or her own name, likeness, image, etc. If another person makes use of these things, without the plaintiff’s consent, seeking to gain some commercial benefit from the appropriation, such as their use in the promotion of products, advertisements, and other commercial products or services, then it comprises a violation of the right to privacy under this tort.

This is the right to be protected against the unwarranted appropriation or exploitation of one’s name, image or personality. Any private person has the reasonable right to the exclusive control of any use or attribution of his or her name, image or likeness.  This has sometimes been called the heart of the law of privacy.

In this cause of action, however, it must be shown that the unwarranted use or exploitation of another’s identity is not only meaningful or purposeful, but that its use has been to advertise a product or service for commercial purposes. In other words, the misappropriation of identity must be deliberate, and does not cover incidental uses of an image, mere mention of a name or any other inadvertent suggestion of patronage.

This is because what is being protected under this tort is the value associated with a person’s name or identity. When, for instance, a public person is being advertised as a patron of a certain business, when it was not true, and that person’s identity was only appropriated to help promote the defendant’s business, then it constitutes a tort.

One possible defense against this kind of tort claim is consent or permission. That is, if it can be shown that you had allowed or permitted the defendant to use your identity for his commercial purposes, even if you did not derive any direct benefit yourself from the use, there has been no “violation” per se.

At the same time, if the use was unintentional or inadvertent, there has been no violation. Central to this tort is intent in the misappropriation, directed towards generating a commercial benefit from the use of another person’s identity. If it was not intentional, then it is not a violation of privacy that falls under this tort classification.

Another factor that is considered in this kind of tort claim is the resulting injury suffered by the Plaintiff. These damages may be to one’s reputation, which is certainly of high value to high profile persons such as celebrities, politicians, or other public figures. They would want to be more discerning about what products or services they are perceived to be associated with, and if this is done without their consent, particularly for products or services they would not otherwise have willingly agreed to support or endorse, then there are damages to justify this claim.