Publication of Private Facts In most states, you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. For example, writing about a person's HIV status, sexual orientation, or financial troubles could lead to liability for publication of private facts. However, the law protects you when you publish information that is newsworthy, regardless of whether someone else would like you to keep that information private. In addition, the law protects you if you publish information already exposed to the public eye and especially material obtained from publicly available court records. Despite the law's substantial protections for legitimate reporting on matters of public interest, it is a good practice to obtain consent before publishing sensitive private information about someone.
Who Can Sue for Publication of Private Facts
Only human beings, and not corporations or other organizations, can sue for publication of private facts. Publication of private facts is a type of invasion of privacy, and you cannot invade the privacy of a dead person. Therefore, an estate cannot sue you for publishing private facts about a dead person, unless your publication took place before the person in question died. Note, however, that members of a dead person's family may be able to sue in their own right if you disclose private facts that relate to them too.
Elements of a Private Facts Claim
A plaintiff must establish four elements to hold someone liable for publication of private facts:
1. Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question. 2. Private Fact: The fact or facts disclosed must be private, and not generally known. 3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities. 4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.
Below, we address these elements in greater detail. Keep in mind that publication of private facts is a state-law legal claim, so there is some variation of the law in different states. For state-specific information, see State Law: Publication of Private Facts.
A plaintiff bringing a publication of private facts claim must show that the defendant made a public disclosure of the fact or facts in question. This means communication to the public at large, or to so many people that the matter must be regarded as likely to become public knowledge. As a general matter, publication of information on a website or blog (or any other publicly available platform on the Internet) will satisfy this element. On the other hand, it might not be a public disclosure if you simply convey private information about someone in an email to one or two other people, so long as it is understood that the information is not meant for further dissemination to the public.
A plaintiff bringing a publication of private facts claim must show that the defendant disclosed a private fact. This means pretty much what it sounds like. A private fact is an intimate detail of one's private life that is not generally known. Common examples of private facts include information about medical conditions, sexual orientation and history, and financial status. It may also include things like someone's social security or phone number, if that information is not ordinarily publicly available. A plaintiff has no privacy interest with respect to a matter that is already public. Thus, you cannot be held liable for discussing or republishing information about someone that is already publicly available (e.g., found on the Internet or in the newspaper). For instance, a few years ago, Robert Steinbuch, a former Congressional aide sued Jessica Cutler, another former Congressional aide, for publishing information about their private sexual relations on her blog, Washingtonienne. Steinbuch also sued Anna Marie Cox of Wonkette for calling attention to Cutler's blog and making the story spread around the Internet like wildfire. Steinbuch's claim against Cutler may have some merit because she disclosed on her blog embarrassing information about him that was not publicly available, but the case has yet to be decided. See our database entry, Steinbuch v. Cutler for details. On the other hand, the court dismissed Steinbuch's publication of private facts claim against Cox because she did nothing but blog about a matter that was already public. (Cox's lawyers do an excellent job of arguing the point in this brief.)
In addition, you cannot be held liable for giving publicity to a matter that the plaintiff leaves open to the public eye. For example, when the man who helped stop an assassination attempt on President Ford sued two newspapers for revealing that he was a homosexual, the court denied him relief, finding that his sexual orientation and participation in gay community activities was already widely known by hundreds of people in a variety of cities. The record showed that, prior to the publication in question, the plaintiff had frequented gay bars, participated in gay pride parades, and that his friendship with Harvey Milk (a prominent gay figure) was well-known and publicized in gay newspapers. This, in the court's view, was sufficient to establish that the plaintiff had left his sexual orientation open to the public eye. See Sipple v. Chronicle Publ'g Co., 154 Cal. App. 3d 1040 (Cal. Ct. App. 1984). In another case, a stripper sued ABC for publishing private facts about her when the television show 20/20 aired a program about the allegedly illegal activities of several persons associated with the strip bar where she worked. The plaintiff appeared in a few shots of the TV program dancing nude in the background. The court held that the plaintiff did not have a valid claim for publication of private facts because her stripping activity was open to the public eye; anyone who paid the $5.00 cover charge could see her performing her work. See Puckett v. American Broad. Co., 1990 WL 170425 (6th Cir. Nov. 6, 1990). In a more recent case, several Navy SEALs sued the Associated Press for publishing photographs of them potentially abusing Iraqi captives. The court held that the images were not private because the plaintiffs were members of the military on active duty conducting wartime operations in full uniform and chose to allow their activities to be photographed and placed on the Internet. See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 (S.D. Cal. 2005).
As the latter two cases suggest, a person's photograph or image can be a "private fact," but generally not when it is captured in a public or semi-public place. Therefore, you can generally publish photographs of an individual or individuals taken in public places without liability for publication of private facts. For example, in Gilbert v. Hearst Pub. Co., 253 P.2d 441(Cal. 1953), the court held that a newspaper was not liable for invasion of privacy through publication of private facts when it published a photograph of a couple kissing at the farmer's market in San Francisco. Note, however, that publishing photographs of other people, even if taken in public, may result in liability for unauthorized use of name or likeness. See Using the Name or Likeness of Another for details. And, if you intrude into a private place in order to photograph or record someone, you could be held liable for intrusion. See Gathering Private Information for details.
A plaintiff bringing a publication of private facts claim must show that, under the circumstances, publishing the facts in question would have been highly offensive to a reasonable person of ordinary sensibilities. The question is not whether the plaintiff himself/herself found the public disclosure highly offensive, but whether an ordinary person reflecting community mores would find it so. Thus, the law does not give special solicitude to a plaintiff with a "thin skin." As the Restatement of Torts explains:
Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part. Thus he must expect the more or less casual observation of his neighbors as to what he does, and that his comings and goings and his ordinary daily activities, will be described in the press as a matter of casual interest to others. The ordinary reasonable man does not take offense at a report in a newspaper that he has returned from a visit, gone camping in the woods or given a party at his house for his friends. Even minor and moderate annoyance, as for example through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises.
Restatement (Second) of Torts § 263D cmt. c. Some examples of activities found to be highly offensive include publishing a photograph of a woman nursing a child or posing nude in a bathtub, displaying a movie of a woman's caesarian operation, and disseminating a video showing two celebrities having sex. Some activities found not to be highly offensive include publishing an accurate account of a private wedding, publishing a photograph of a couple kissing in public, and publishing photographs of military personnel showing potential prisoner abuse.
Newsworthiness -- Matters of Legitimate Public Concern
Newsworthiness is ordinarily the most important issue in a publication of private facts case. In many states, a plaintiff bringing a publication of private facts claim must show affirmatively that the facts disclosed were not newsworthy -- i.e., they were not a matter of legitimate public concern. In other states, the defendant must raise newsworthiness as a defense. Many courts hold that publishers have a constitutional privilege to publish truthful information on a matter of legitimate public concern. In any event, you ordinarily cannot he held liable for disclosing private facts about someone so long as those facts are of legitimate public concern.
Defining what is a matter of legitimate public interest can be tricky. But, courts generally are reluctant to second-guess the media, and they therefore take a very broad view of newsworthiness. Courts have held that there is a legitimate public interest in nearly all recent events, as well as in the private lives of prominent figures such as movie stars, politicians, and professional athletes. Thus, newsworthy publications include those "concerning homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve-year-old girl, the reappearance of one supposed to have been murdered years ago, a report to the police concerning the escape of a wild animal and many other similar matters of genuine, even if more or less deplorable, popular appeal." Restatement (Second) of Torts § 263D cmt. Moreover, the protection for newsworthy publications extends beyond the dissemination of "news" in the sense of current events or commentary upon public affairs. It extends also to "information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that individuals may cope with the exigencies of their period." Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Thus, courts have found to be newsworthy articles dealing with unique love relationships, an Indian rope trick, the whereabouts and living conditions of a former child prodigy, and the peculiar personal characteristics of Bush campaign volunteers.
Despite the broad scope of potentially newsworthy topics, you risk losing your protection from liability if you exceed the bounds of common decency: "The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern." Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975). The courts agree that most facts about public officials and celebrities are of legitimate public concern, but they also recognize that even famous public figures retain a zone of privacy relating to things like sexual activity and medical information. Ordinary people may become "involuntary public figures" when they take part in an event or occurrence of public significance, such as a crime, an accident, or a spontaneous act of heroism. When this happens, many facts about their lives become legitimately newsworthy, like their home addresses and information about their education, upbringing, and family. The media is allowed to use colorful facts about newsworthy individuals to create a thorough and compelling portrayal, so long as there is some logical connection between the facts disclosed and the matter of legitimate public interest. Accordingly, a court has held that information about a physician's psychiatric history and marital life was substantially relevant to the newsworthy topic of policing failures in the medical profession, when the physician in question had committed two acts of alleged malpractice. See Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981). Similarly, a court held that a newspaper could legitimately publish the name and address of the father of a person who was being questioned as a suspect in the rape of a young girl. See Strutner v. Dispatch Printing Co., 442 N.E.2d 129 (Ohio Ct. App. 1982). In yet another example, a court held that a woman could not successfully sue over a photograph of her walking on the grounds of a private psychiatric hospital when she was walking next to a famous fellow patient whose "mental and physical rehabilitation was clearly newsworthy." Howell v. New York Post Co., 181 A.D.2d 597 (N.Y. App. Div. 1992).
On the other hand, sometimes the connection between disclosed private facts and a topic of admitted public interest is too attenuated. In one case, a court held that the disclosed fact that a student political leader was a transsexual was not of legitimate public concern, even though the disclosure happened in connection with a series of newsworthy articles about the student leader (she was the first female student body president at the college in question). See Diaz v. Oakland Tribune, Inc., 139 Cal. App. 3d 118 (Cal. Ct. App. 1983). The court reasoned that there was no connection between the plaintiff's gender status and her fitness for office or any other relevant issue, and that her position did not warrant opening up her entire private life to public inspection. Moreover, the court perceived that the reporter in question was making a joke at the plaintiff's expense, which did not help his case. In another case, a court held that a surfer could take his publication of private facts claim to trial where he established that a magazine published information about embarrassing incidents from his personal history. While the overall topic of the offending article (body surfing at a famous California beach) was newsworthy, the court ruled that a jury would be entitled to conclude that information about the plaintiff's non-surfing life was not newsworthy. See Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975).
The passage of time might also affect whether a private fact is newsworthy. Facts that might be considered newsworthy at the time of the event will not necessarily remain so months or years later. This sometimes comes up with information about past crimes. Some courts have held that information about an individual's commission of a crime in the remote past is not a matter of legitimate public concern when that individual has completely rehabilitated himself/herself. However, other courts have rejected this view, so long as there is some connection to a topic of continuing interest. Nevertheless, you may want to think twice about publishing private information about someone who used to be an important public figure, but who now has faded into obscurity.
Relying on Public Records
In Cox Broadcasting v. Cohen, 420 U.S. 469 (1975), the Supreme Court of the United States held that the First Amendment to the Constitution prohibits states from imposing a penalty on the press for publishing accurate information obtained from a public court record. As a result of this case, most states recognize an absolute privilege for publication of information found in a publicly available (i.e., not sealed) court record. While the case involved traditional media, there is no reason to believe that its reasoning and holding would not extend to non-traditional journalists and other online publishers. This means that you cannot be held liable for publishing accurate facts about someone that you find in a public court record, regardless of how embarrassing they are. Note that this privilege will protect you in publishing information about past crimes (discussed above), so long as you gather your information from publicly available court records, such as an indictment or trial transcript. For information on accessing court records, see Access to Courts and Court Records.
Many states have extended this protection from liability to the publication of information found in "public records" in addition to court records. The exact meaning of "public records" varies, but in some states it includes information obtained from government agencies through state freedom of information requests. See State Law: Publication of Private Facts for details on the scope of the First Amendment privilege and Access to Government Records for information on freedom of information requests.
Consent is a complete defense to a legal claim for publication of private facts. When you interview someone to gather information for later publication, it is a good practice to ask for consent to use the material on your website, blog, or other online platform. Make sure to get consent in writing whenever possible. You can use an interview release form. This release can help protect you against misappropriation and right of publicity claims in addition to publication of private facts claims. Some examples of interview releases can be found in Stanford's Copyright and Fair Use Guide, and at EmilioCorsetti.com and the University of Michigan Press. You can find additional samples by doing a basic Internet search for "interview release," and the book The Copyright Permission and Libel Handbook by Lloyd J. Jassin and Steven C. Schecter has two excellent examples. An interview release can take various forms; you will need to choose and customize one to suit your own purposes. Make sure to mention explicitly your intent to use information conveyed during the interview for publication on the Internet.
Children cannot consent on their own behalf. When using the name or likeness of a minor (generally someone under the age of eighteen), you should seek consent from the minor's parent. Some of the example release forms linked to above are geared toward getting the consent of minors. State laws may recognize other situations where individuals are not able to consent on their own behalf. For instance, imagine you come across the scene of an accident and find a half-conscious accident victim. You might seek the consent of that individual to take pictures and ride along with him or her in the ambulance on the way to the hospital. Depending on state law, a court might not recognize consent provided by such a half-conscious and obviously traumatized individual.
Keep in mind that people giving you consent can revoke (i.e., take back) that consent anytime before the use of their name or photograph takes place. Therefore, you should honor the decisions of consenting persons who suddenly change their minds, so long as publication hasn't already taken place.
Statute of Limitations
The "statute of limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over took place. This time limit is set by state law and is intended to promote fairness and keep old cases from clogging the courts. In publication of private facts cases, the statute of limitations ordinarily runs from the date of first publication of the offending facts. The limitations period varies based on state law; usually it is between one and three years. See the state pages for the applicable term in your state.Publishing Personal and Private Information
When you publish information about someone without permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. Most states have laws limiting your ability to publish private facts about someone and recognizing an individual's right to stop you from using his or her name, likeness, and other personal attributes for certain exploitative purposes, such as for advertising goods or services. These laws originally sprang from a policy objective of protecting personal privacy; the aim was to safeguard individuals from embarrassing disclosures about their private lives and from uses of their identities that are hurtful or disruptive of their lives. Over time, the law developed and also recognized the importance of protecting the commercial value of a person's identity -- namely, the ability to profit from authorizing others to use one's name, photograph, or other personal attributes in a commercial setting.
Specifically, there are two types of legal claims that relate to unauthorized publication of personal and private information: Publication of Private Facts: The legal claim known as "publication of private facts" is a species of invasion of privacy. You commit this kind of invasion of privacy by publishing private facts about an individual, the publication of which would be offensive to a reasonable person. This legal claim can only be successful, however, if the facts in question are not legitimately newsworthy. So, for instance, if you disclose the fact that your neighbor has an embarrassing health condition, you might be liable for publication of private facts. If, however, this medical condition is particularly relevant to some topic of public interest -- say, your neighbor's fitness to serve in public office, a court might find that your publication is lawful. Determining what facts are of legitimate public concern is often difficult to determine, so you may want to get permission before disclosing potentially embarrassing information about an individual you interview or write about. If your work sometimes involves this kind of publication, then you should see the Publication of Private Facts section for further details.
Using the Name or Likeness of Another: The legal claim known as "misappropriation of name or likeness" is a species of invasion of privacy. Over time the courts also recognized a legal claim for violation of the "right of publicity," which is closely related. You commit misappropriation and/or violate the right of publicity when you use an individual's name, likeness, or other personal attributes without permission for an exploitative purpose. These legal claims usually apply to the use of a name or image in a commercial setting, such as in advertising or other promotional activities, but they may apply anytime you take advantage of another person's identity for your own benefit. However, individuals cannot stop every mention, discussion, or reporting on their lives or activities, and many states explicitly exempt news reporting and other expressive activities from liability. For example, if you advertise your website using the photograph of a famous rival blogger (or even an unknown rival blogger) without permission, then you might be liable for misappropriation of that person’s likeness. (Another way of saying this is that you might be liable for violating the blogger's "right of publicity.") But, if you write an article commenting on the posts of that same blogger and include his picture, you generally won't be liable for using the blogger's name without permission or including the photograph for illustrative purposes. If you are interested in using the names or photographs of others, especially celebrities, you should consult Using the Name or Likeness of Another for further details.
While these laws can create pitfalls for citizen media creators, the risks are manageable and you can take certain steps to protect yourself. Most importantly, if you stick to reporting or commenting on matters of legitimate public interest and only portray people who have a reasonable relationship to your topic, then you generally can avoid liability. You should never use someone's name or photograph solely to drive traffic to your website, but you are free to cover the public and noteworthy activities of others, including celebrities. Finally, if you are worried about legal liability, you can get consent from the individual or individuals who might be offended by your particular disclosure or use. For additional information on what practical steps you can take to avoid liability, see the section on Practical Tips for Avoiding Private Facts, Misappropriation, and Right of Publicity Claims.
Practical Tips for Avoiding Private Facts, Misappropriation, and Right of Publicity ClaimsWhile 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.
This page covers legal information specific to the State of Washington. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Washington's right of publicity statute, the Washington Personality Rights Act (WPRA), is codified at Wash. Rev. Code Ann. § 63.60. You should familiarize yourself with the statute, but note that certain elements of the law addressing the geographic reach of Washington's post-mortem right of publicity have been held unconstitutional by the United States District Court for the Western District of Washington (see Rights of the Deceased, below).
There is also a common lawtort of appropriation in Washington. Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104, 1113 (W.D. Wash. 2010). This tort appears to function comparably to the statutory right of publicity, but has been rarely addressed in courts applying Washington law.
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
The statute states that "every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness." § 63.60.010. Likeness includes depictions of "distinctive appearance, gestures, or mannerisms." Wash. Rev. Code Ann. § 63.60.020. "Photograph" includes both still photography and video that makes the individual "readily identifiable." § 63.60.020.
"Personalities" refers to individuals whose identities carry commercial value, such as celebrities. § 63.60.020. The United States District Court for the Western District of Washington has noted the ambiguity of this definition, as any individual's identity can be said to have value. Experience Hendrix, L.L.C. v. Hendrixlicensing.com, Ltd., 766 F. Supp. 2d 1122, 1131 (W.D. Wash. 2011).
What Constitutes a Statutory Violation
Statutory standards for infringement are codified at Wash. Rev. Code Ann. § 63.60.050. The unauthorized use of one's "name, voice, signature, photograph, or likeness" on goods, or for advertising or fund-raising purposes, constitutes infringement. In Experience, the court noted that while the statute only applies to goods sold in Washington, as written it applies to advertising or fund-raising anywhere. Experience at 1135. The statute also applies to those distributing infringing advertising within the state. The statute explicitly applies to both profit and non-profit endeavors. An infringement has not occurred if the owner gives written, oral, express or implied consent to the use of their identity.
In Dale v. Coors Brewing Co., 113 Wash. App. 1017 (2002), the Court of Appeals of Washington held that held that a former employee of a beer company could not claim appropriation against her employer for using her likeness on a poster because she had consented to the use. It further held that because she did not demonstrate the value of her image, nor present evidence of her employer's financial gain from the infringement, "her claims would fail for lack of damages." However, in State v. Hinkle, 131 Wash. 86 (1924), an early case that did not discuss rights of publicity or the tort of appropriation in those terms, the court noted that the "law will presume" damage from the use of one's name.
Exemptions are codified at Wash. Rev. Code § 63.60.070. Publications related to "cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody" do not qualify as infringement. Publications on these subjects are protected even if they are used in advertising, "if it is clear that the principal purpose of the advertisement is to comment on such matter."
In addition, the statute explicitly exempts certain uses, such as the following: "Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies."Various forms of media such as literature, theater, film, political campaigns, and online (see statute for complete list). Note that claiming endorsement by an individual in these contexts is not protected.Advertisements for certain works listed as exempt in the statute.Advertisements and packaging for various artistic works where the artist originally consented to incorporating their name. Advertisements or sale of works signed by the individual.Use of an identity as part of a description of something else, such as "a place, a legacy, a style, a theory, an ownership interest, or a party to a transaction or to accurately describe the goods or services of a party."An "insignificant, de minimis, or incidental use" of an identity.
An owner or employee of a platform in which infringing content was published as advertising is not liable, "unless the advertisement or solicitation was intended to promote the medium itself."
Incorporating the use of multiple identities, as opposed to just one, is not a basis for exemption. However, the individuals who have been infringed upon cannot bring their claim as a class.
The right of publicity survives for ten years after the death of the individual. For "personalities," meaning celebrities and others whose identities carry commercial value, the rights survive for 75 years after death. Wash. Rev. Code Ann. § 63.60.040. A property right exists regardless of whether the right was commercially exploited while the individual was alive. § 63.60.030.
While the statute suggests that its directives addressing survivability and assignability apply regardless of the deceased individual's home state (‘domicile'), this language has been held unconstitutional. In Experience, the United States District Court for the Western District of Washington declared that the WPRA's choice of law provisions violated the Due Process, Full Faith and Credit, and Commerce Clauses of the U.S. Constitution. The court held that, as the statute would apply Washington law in situations where Washington lacked "significant contact" to the events and parties involved, the statute's choice-of-law provisions were "arbitrary and unfair," and therefore violated the Due Process and Full Faith and Credit Clauses. Moreover, as the choice-of-law provisions would allow Washington to apply its statutes to commercial transactions taking place outside of the state, they also violated the Commerce Clause. As a result, the court held that because Jimi Hendrix died while domiciled in New York, Washington law did not apply and ultimately his right of publicity did not descend to his heirs.
Damages and other remedies
Damages and other remedies are described in Wash. Rev. Code § 63.60.060. Courts can grant injunctive relief on "reasonable terms." Courts can also order the destruction of infringing products and elements of their creation process, such as molds or negatives.
Damages are calculated from the greater of $1,500 or the actual damages suffered by the plaintiff, plus the infringer's profits. To calculate profits, plaintiffs are required to prove defendant's revenues and defendants to prove their own deductible expenses. Each infringing work constitutes a single instance of infringement, regardless of how many copies were made or how many times the plaintiffs appear within.
"Washington expressly prohibits punitive damages as a violation of public policy unless explicitly authorized by statute." Jongeward v. BNSF R. Co., 174 Wash. 2d 586, 594, 278 P.3d 157, 160 (2012). As the statute does not include a reference to punitive damages, they are not available.
The statute notes states that "the remedies provided for in this section are cumulative and are in addition to any others provided for by law," suggesting that incremental common law damages may be assessed independently.
THE COMMON LAW RIGHT
Only one recent case explicitly addresses a plaintiff's common law tort of appropriation. In Aronson, the United States District Court for the Western District of Washington noted that while a common law cause of action existed for appropriation, it did not apply to "the publication of matters in the public interest" (see Defenses, below). Aronson at 1113.
In Dale, the plaintiff brought a WPRA claim and a claim for "common law invasion of privacy," presumably for appropriation, although the opinion does not specify. The Court of Appeals of Washington held that both claims failed as the plaintiff had consented to the use of her image.
These examples notwithstanding, there may be historical precedent for a successful common law right of publicity claim. In Hinkle, a case from 1924, the Supreme Court of Washington held that a political organization could not use the name of a politician against his will, and provided injunctive relief. The decision did not reference appropriation or a right of publicity by name.
DEFENSES TO THE STATUTORY AND COMMON LAW RIGHTS
In Aronson, a plaintiff depicted in a healthcare documentary claimed unauthorized misappropriation of his identity, citing both common law and the statute. The United States District Court for the Western District of Washington held that the documentary was both entitled to First Amendment Protection and exempted from the statute.
In Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992), the United States District Court for the Western District of Washington suggested that Washington law would protect the producers of a play that incorporated a recreation of a performance by a deceased blues singer, "especially given the fact that the Washington State Constitution places an even higher value upon the principle of free speech than the Federal Constitution." While the court did not apply a constitutional analysis, it did note "the clear direction in which constitutional law points," and cited a New York case holding that free speech considerations trumped the post-mortem right of publicity. Note that this decision was written prior to the enactment of the WPRA.
Although no Washington court has analyzed which statute of limitations applies to right of publicity claims in Washington, it is likely that the state's general three-year statute of limitations for injury to persons or property would apply. Wash. Rev. Code § 4.16.080(2).
Neutral Report PrivilegeAlthough not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.
Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where: A responsible, prominent organization or individual; Makes a serious charge on a matter of public interest; Against another public figure or organization; and The charge is accurately and disinterestedly reported.
The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection: What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.
Edwards, 556 F.2d at 120. The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.
Examples of the Neutral Reportage Privilege
Examples of instances where courts have applied the neutral reportage privilege include: Newspaper report that a state auditor accused a town trustee of faking a snow emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996). A newspaper report that a political campaign brochure accused the county's Italian-American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988). A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).
Differing State Approaches to the Neutral Reportage Privilege
Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways: Private figure plaintiffs: Edwards v. National Audubon involved an instance where the person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved. Trustworthy and prominent sources: Few sources are more trustworthy and prominent than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story. Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Consult your individual state defamation section, but also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.
Publishing Information that Harms Another's ReputationWhen you publish online, whether it's on a blog, in a podcast, in a video you upload to YouTube, or simply in a comment on another's website, you might say or do something that harms the reputation of another person, group, or organization. Fortunately, not everything you publish that harms the reputation of others will open you up to legal liability. For example, you won't generally face legal liability if you simply state your opinion, even if your opinion is harsh, critical, or wildly off-base.
Nevertheless, if you find yourself about to publish something that could harm another's reputation, you should spend some time familiarizing yourself with the various laws that protect reputation. The sections that follow are not intended to make you an expert on libel law, but merely to help you identify potential "red flags" so that when you publish something that might negatively impact the reputation of another person, group, or organization, you will know to be extra careful and will take the necessary steps to minimize your potential legal liability.
First, ask yourself whether what you intend to publish would UPSET YOU if someone else were to publish the information about you. This simple test won't tell you for sure whether you will be liable if the information you publish turns out to be false, but it will get you focused on the statements that should be of greatest concern. Moreover, putting aside the legal implications of what you publish, statements that upset others are more likely to draw their ire and result in a lawsuit, even when they don't actually have a viable legal claim. Depending on what you say and how you say it, you will likely need to be concerned with two different, but related, legal doctrines that aim to protect against reputational harm: Defamation: Defamation is the general term for a legal claim involving injury to one's reputation caused by false statements of fact and includes both libel and slander. The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature). False Light: False light is similar to defamation. Claims for false light generally involve untrue implications rather than directly false statements. For instance, an article about sex offenders illustrated with a photograph you pulled from Flickr of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim.
Keep in mind that the republication of someone else's words can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).
Second, if you think you've been improperly sued in retaliation for your speaking out on a public issue or controversy, you may be able to get the case dismissed or file a counter claim under your state's law protecting against Strategic Lawsuits Against Public Participation (SLAPP). If you are sued in a state that has an anti-SLAPP law, you may be able to end the lawsuit quickly and recover your costs and attorneys' fees.
Practical Tips for Avoiding Liability Associated with Harms to ReputationWhile you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize your risk of being on the receiving end of a defamation or false light lawsuit. Some suggestions include:
General AdviceFollow good journalistic practices: While you can't reduce your legal risks entirely, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be found liable for defamation. See the section on Journalism Skills and Principles for helpful suggestions. Strive to be as accurate as possible: Truth is a complete defense in defamation and false light cases. If you can prove that what you wrote, posted, or said is true, then you have negated the falsity requirement at the heart of these claims. That means that when it comes to your publishing activities, accuracy isn’t only a good journalistic practice, it also puts you on safer legal ground. Use reliable sources: The better your sources, the better your chances in court. There actually is a privilege for "fair reports" of accurately quoted official records and proceedings. It’s important to report the information accurately, and to properly attribute the information. Be especially careful when using confidential sources. If you rely solely on confidential sources, you may be in a compromised position should you be sued for defamation. It will be very difficult for you to defend yourself by proving your statement is true. Even worse, if you uphold your commitment and refuse to identify your source – and there are important legal and ethical reasons to do so – the result at trial could be a presumption that the source did not exist. See the section on Promising Confidentiality to Your Sources in this guide for more information. Seek comment from the subjects of your statements, when appropriate: If your story or blog post includes an assertion of fact that might be harmful to someone’s reputation, double check your facts and give your subject an opportunity to respond. You don’t necessarily need to include the response in your post, but it can help if you can show you reached out before publication, gave the subject a chance to respond, and considered what he or she had to say. You might find out that the subject has a perfectly reasonable explanation, you received misinformation from other sources, or the subject has confirmed the accuracy of your research. Document your research: It will often be beneficial to you to keep a log of your fact-checking efforts. Save your research and other documentary materials. Don't assume that just because something is available online today, it will always be available. In the case of a lawsuit, you will likely need to produce your notes, drafts, and copies of source materials. Accordingly, if you create these materials you should make sure they provide a complete and accurate picture of the work you did in researching and fact-checking your statements. Keep an eye out for "Red Flag" statements: Some statements are more likely to be problematic than others. Statements that accuse someone of committing a crime or being arrested; acting immorally; acting with professional incompetence; committing malpractice; exhibiting evidence of substance abuse; or engaging in improper sexual activities are especially problematic. Be cautious when publishing negative information about businesses: Many defamation lawsuits are brought by businesses who often have lawyers at their disposal and economic interests tied to their reputations. You have every right to criticize companies and their products and services provided you do so accurately and fairly. However, you can run into problems not only under defamation law, but also under laws designed to enforce fair trade and fair competition, if you falsely disparage a business entity, or its product or services, particularly when your subject is a competitor. Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to defamation and false light claims. Consent can often be gained expressly, by someone specifically telling you that you can publish the information about them, but can also be implied if a person fails to object to a fact-checking draft or read back you send them prior to publication. Where possible, attempt to get express consent. Be willing to correct or retract your mistakes: If someone asks you to publish a correction or retraction, investigate the request carefully. If you find you got something wrong, correct any inaccuracies and issue a correction or retraction. Be prompt and give your correction the same prominent position that you gave the inaccurate information you previously posted. See the section on Correcting or Retracting Your Work After Publication for guidance. Ensure that your work is covered by all applicable privileges: A number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. These defenses, which are often called privileges, may allow you to get out of a case at a very early stage. For example, if the statement at issue is substantially true, a defamation claim cannot succeed. But truth is not the only defense that may be available. You are entitled to state your opinions and if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. We've included some additional tips below that can help you get the most out of any applicable privileges.
Ensuring that the Opinion and Fair Comment Privileges Apply to Your Statements When offering your opinion about someone or something, make sure the context and the language you use conveys that you are stating your opinion. Words such as "in my opinion," "I believe," and "we think," are not always enough. Avoid using terms that imply underlying, verifiable facts. If you are stating an opinion that is based, at least in part, on verifiable facts be sure to state the facts you are relying on and be careful to ensure that your opinion is reasonable in light of those facts. If possible link to a document or source containing those facts in order to make clear what the underlying facts are that you are basing your opinion on.
Ensuring that the Fair Report Privilege Applies to Your Statements If you are publishing information about the activities or statements of government officials or institutions, you should seek to rely as much as possible on official documentary sources and statements made by government officials. Provide clear and accurate attribution to all documentary sources and statements by government officials, and keep copies if possible. Stick to the facts. While you may report the content of an official document or the proceedings of a government meeting, your editorial additions (for example, musings as to the motives of those involved) that tend to give a defamatory spin to the report are not privileged. Be fair and evenhanded in your use of these sources. Be sure to read the whole source document and characterize its statements accurately in your reporting. Beware of selective quoting; for example, if you report only negative testimony against the defendant in a lawsuit, while neglecting to report testimony that tends to vindicate the defendant, your coverage could fail the "fairness" requirement of this defense.
Ensuring that the Neutral Report Privilege Applies to Your Statements Attribute your quotes. Make sure it is obvious that you are reporting on an accusation made by someone else. If your source is a public figure, clearly indicate his title or role when quoting him, so as to emphasize that you are relying on a public figure speaking about a person or subject about which he has some stature or qualification. Be particularly careful when abridging or paraphrasing quotes so as to not change them in such as way as to create a defamatory meaning that was not there previously. Also, if possible, verify your quote with the source. Be fair in your coverage of the accusation or controversy. The neutral report privilege is not available if you provide a biased view of the situation. Keep in mind that the privilege is intended to protect the publication of matters related legitimately to the public good. If you're reporting something that is of vital public interest, it will more likely be privileged than if you are reporting something that is of only marginal import, such as personal gossip concerning a celebrity.
Anti-SLAPP Law in WashingtonNote: This page covers information specific to Washington. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use the Washington Act Limiting Strategic Lawsuits Against Public Participation, found at Wash. Rev. Code § 4.24.525, to counter a SLAPP suit filed against you. The statute allows you to file a special motion to strike any claim against you that is based on your public statements about an issue of public concern. The anti-SLAPP law allows for a stay of all discovery, pending hearings, and motions, with certain exceptions. If a court rules in your favor, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees, litigation costs, and ten thousand dollars in damages. Activities Covered By The Washington Anti-SLAPP Statute
To challenge a lawsuit under Washington's anti-SLAPP act, you must show that the claim(s) against you is based on your written or spoken acts "involving public participation and petition". Washington defines statements involving "public participation and petition" in 5 ways: (1) Statements made in a "legislative, executive, or judicial proceeding or other governmental proceeding authorized by law,"(2) Statements made regarding any issues under consideration by any branch of the government,(3) Statements that are reasonably likely to encourage public participation and interest in an issue being considered by the government,(4) Statements made "in a place open to the public or a public forum in connection with an issue of public concern," or(5) "Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition."
Wash. Rev. Code § 4.24.525 (4)(a-e). As an online publisher, you are most likely to rely on the fourth category above. It applies to written statements in a public forum on an issue of public concern.
Washington's law explicitly does not apply to prosecutions brought by the state. Wash. Rev. Code § 4.24.525 (3). How To Use The Washington Anti-SLAPP Statute
The Washington anti-SLAPP statute gives you the ability to file a motion to strike (i.e., to dismiss) a complaint brought against you for engaging in protected speech or petition activity (discussed above). If you are served with a complaint that you believe to be a SLAPP, you should seek legal assistance immediately. Successfully filing and arguing a motion to strike can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. You should file your motion to strike under the anti-SLAPP statute within sixty days of being served with the complaint. (Note that if the plaintiff serves you with an amended complaint, the 60-day deadline will run from service of the amendment.) A court may also allow you to file the motion after sixty days, but there is no guarantee that it will do so. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion.
One of the benefits of the anti-SLAPP statute is that it enables you to get the SLAPP suit dismissed quickly. After receiving your motion to strike, the court must hold a hearing on your motion within thirty days, unless the court's docket is overbooked. Until your motion is decided, all discovery and other hearings will be stayed (unless the plaintiff can show good cause for continuing some discovery).
Washington courts follow a two-step process when deciding a motion to strike under the anti-SLAPP law. First, you (as the party looking to invoke the anti-SLAPP statute) must show by a preponderance of the evidence that the plaintiff's claim is based on your speech protected as involving public participation. (See above.) Once you successfully show that your online writing involves public participation, the burden shifts to the plaintiff for step two. The plaintiff must clearly show “by clear and convincing evidence a probability” of winning the lawsuit; if the plaintiff fails to show this, the court will dismiss the claim.
Whoever loses the motion to strike (either you or the plaintiff) has the right to an immediate appeal. What Happens If You Win (or Lose) A Motion To Strike
If you win your motion to strike under Washington's anti-SLAPP statute, the court will dismiss the lawsuit (or the parts of the lawsuit found to be SLAPPs). You will also be entitled to receive your attorneys' fees, your court costs, and an automatic statutory damage award of $10,000. The court may also sanction the plaintiff or the plaintiff's attorney.
Normally, nothing happens if you lose your motion to strike (other than the lawsuit continuing against you). However, if the court finds that your motion under the anti-SLAPP law was entirely frivolous or solely intended to delay the lawsuit, the court can award attorneys' fees, court costs, and an automatic statutory damage award of $10,000 to the plaintiff.
If you succeed in fending off a SLAPP lawsuit in Washington, you may be able to bring a claim of malicious prosecution against the original plaintiff. While Washington does not have a special form of process for a "SLAPP back" claim, the elements of a malicious prosecution claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.
Responding to Strategic Lawsuits Against Public Participation (SLAPPs)SLAPP stands for "Strategic Lawsuit Against Public Participation." It refers to a lawsuit filed in retaliation for speaking out on a public issue or controversy. You might be "SLAPPed" for actions such as posting a blog entry, posting a comment on another person's blog, writing a letter to the editor of a newspaper, testifying before the legislature, reporting official misconduct, or circulating a petition. Often, SLAPPs are brought by corporations, developers, or government officials against individuals or community organizations that oppose their actions.
Lawsuits targeting individuals who post anonymously on the Internet, usually because their posted messages criticize the actions of public figures or corporations, are sometimes called cyberSLAPPs. Like a regular SLAPP, a cyberSLAPP aims at chilling free speech by intimidating critics with the prospect of defending an expensive lawsuit. But it also often aims at uncovering the identity of the anonymous critic. For more information on the court procedures a lawyer or party can use to identify an anonymous Internet speaker, see Potential Legal Challenges to Anonymity.
Most SLAPPs ultimately would fail if litigated fully, but the SLAPP filer doesn't usually intend to do so. As previously mentioned, the point of a SLAPP is to intimidate and silence the target through the threat of an expensive lawsuit. Although the First Amendment to the U.S. Constitution protects freedom of speech, the U.S. legal system generally gives the benefit of the doubt to a party bringing a lawsuit until the fact-finding stage, and a winning defendant is not usually entitled to recover attorneys' fees to cover the expense of legal defense (as in some other countries). This means that, even if the claim ultimately fails, the process of defending against a SLAPP through the legal system can be a daunting and expensive prospect for many individuals.
Two other states, Colorado and West Virginia, do not have anti-SLAPP statutes, but their courts have recognized a defense to lawsuits that target activities aimed at petitioning the government for action on issues of public importance. These common law (i.e., judge-made) rules offer similar protections to those provided by some anti-SLAPP statutes.
If you get sued in a state with an anti-SLAPP law, you may be able to dismiss the lawsuit at an early stage of the proceeding and recover your costs and attorneys' fees. If you live in a state with an anti-SLAPP law but someone sues you in a state without one, you may be able to argue that the laws of your state should apply. For example, if you are a journalist in California (which has an anti-SLAPP statute) writing about the local community impact of the actions of a corporation based in Iowa (which does not have an anti-SLAPP law), you may be able to argue that California law should apply even if the corporation files a lawsuit in Iowa.
See the state pages for state-specific information on anti-SLAPP laws. Types of SLAPPs
SLAPP suits come in many forms. Some of the common claims asserted in SLAPPs include:
Defamation: Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). Defamation is the most common basis for a SLAPP suit. An individual or organization might file a defamation lawsuit in reaction to criticism or negative commentary published on- or offline, such as in a blog post, news report, letter to the editor, or speech at a public meeting, just to name a few. For more information, see the Defamation section.
Interference with contract or economic advantage: This claim alleges that you intentionally interfered with a contract or other business relationship between the plaintiff and a third party that would have benefited the plaintiff economically. You also might see this claim referred to as "tortious interference with business relations," "tortious interference with contract," or some like-sounding phrase. In the publishing context, you often see this claim included along with a defamation claim. Like a defamation claim, individuals and organizations tend to bring this claim in response to criticism or negative commentary published on- or offline, or political activity that hampers the plaintiff's activities.
Intentional infliction of emotional distress: This claim alleges that the defendant intentionally or recklessly committed some outrageous act that caused the plaintiff extreme emotional distress. As above, in the publishing context, you often see this claim included along with a defamation claim, and it often comes in response to criticism or negative commentary published on- or offline.
Conspiracy: A conspiracy is an agreement between two or more persons to commit an illegal act. A plaintiff might claim that you and someone else conspired to commit defamation, to interfere with a contract, or to intentionally inflict emotional distress. Often, the plaintiff will not even identify who you allegedly have conspired with, naming instead an unspecified number of "John Does" or "Jane Roes" in the complaint.
Keep in mind that, at least at the outset, calling a lawsuit a SLAPP is a subjective evaluation of the merit of its legal and factual claims. If someone sues you, the complaint will not identify itself as a SLAPP, and the person filing the lawsuit will vigorously deny characterization of it as a SLAPP. In the end, you cannot definitively establish that a lawsuit is a SLAPP until a court has ruled on the question. How To Protect Yourself Against a SLAPP
Be aware that when you are speaking out on a matter of public controversy that involves significant private interests or the reputation of a government official, you may find yourself the target of a SLAPP. By being prepared, you can minimize your risk of being SLAPPed and continue to exercise your rights with confidence.
Know your rights
Under the Constitution, you have a right to free speech and to petition the government. Courts have interpreted these rights to form legal doctrines that protect the types of activities that attract SLAPPs. Note, however, that the Constitution generally does not protect defamatory, threatening, or harassing speech.
Tell the truth
Truth is an absolute defense to a defamation claim. You can protect yourself by not publishing rumors or scandalous innuendo, and you may want to avoid broad, sweeping generalizations or speculative rhetoric in favor of accurate, fact-based statements.
Diligent fact-checking will make you a harder target for a SLAPP suit. Always cite to legitimate sources. Public records are an excellent source of solid factual information. For more information on how to use the law to obtain government records, see Access to Government Information. If you use Internet sources, print out the website page in case the information there changes at a later date.
Even if what you publish ultimately turns out not to be true, you could still have a defense if the subject of your publication is a public figure, such as a celebrity, a government official, or someone who takes on an important role in the relevant debate or controversy. Public figures must prove that you made false statements about them with "actual malice" -- that is, you actually knew that your statements were false or recklessly disregarded their falsity.
In a defamation lawsuit, a court will not hold you liable for stating an opinion. But, be aware that simply adding the words "in my opinion" to the beginning of a sentence will not necessarily help you. For example, if you write, "In my opinion, Mayor Jones is taking bribes from local developers," you could be liable for defamation, unless the statement is true. In addition, if your opinion implies the existence of facts that can be proven true or false, then it is a statement of fact and not opinion for legal purposes, and you could be held liable for publishing it if the underlying facts turn out to be false.
For more information on how to protect yourself against a defamation claim, see the Defamation section.
Insurance may be a good way to protect yourself from the expense of defending against a SLAPP. Your homeowners or renters insurance may cover damages and legal fees if someone sues you for defamation, invasion of privacy, or other legal claims. Most homeowners and renters policies, however, exclude coverage for "business pursuits," and a court might find that your online activities are a business pursuit if you earn advertising income from your site or blog or you collect money through other online means. The rules vary from state to state. If your state excludes coverage for business pursuits and you make sufficient money from your site to be excluded, media liability insurance might be a better option, although for many it is prohibitively expensive. See our Finding Insurance section for details on all these insurance-related issues. What To Do If You Think You've Been SLAPPed
If someone files a lawsuit against you, and you believe it is a SLAPP, you should seek legal assistance immediately. Be aware of the deadline for filing a response to the complaint; if you miss the deadline, the court may enter a judgment against you without hearing your side of the case.
As noted above, twenty-six states and one U.S. territory have enacted anti-SLAPP statutes to help protect citizens who speak out. These anti-SLAPP laws vary in effectiveness, and some have not yet been tested in a legal case. As a general matter, however, they attempt to shift some of the costs and burdens of litigation from you to the person filing the SLAPP suit. See State Law: SLAPPs for state-specific information.
Some common provisions of anti-SLAPP statutes include: Protection for speech on issues of public significance and/or activities aimed at petitioning the government for action on economic, social, and political issues; Procedural mechanisms for obtaining early dismissal of a SLAPP; Recovery of attorneys' fees and court costs incurred in defending against a SLAPP; Expedited review of motions to dismiss in order to reduce the time and costs of litigation; and Limits or stays on discovery while the court considers a motion to dismiss under the anti-SLAPP law.
If you live in a state with an anti-SLAPP law, you will want to move quickly to get the case dismissed. It is a good idea to seek legal assistance in getting the case dismissed. Keep in mind that, although hiring legal help is expensive, you can recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help. You'll want to find help as soon as you can because successfully filing and arguing a motion to dismiss can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines.
If your insurance company provides you with a lawyer who is not familiar with SLAPP cases, that lawyer may want to try to settle the case in order to minimize costs. This may sound like a good idea, but a settlement will likely include the condition that you do not discuss the matter in the future. With such a settlement, the SLAPP has been successful, because you cannot publicize the SLAPP filer's abuse of the legal system to chill public debate. Consider arranging to hire an attorney who is knowledgeable about SLAPP law.
In addition to getting the case dismissed, you may want to consider going on the offensive. Eight states have statutes allowing "SLAPPback" suits, which are filed as counterclaims against a SLAPP or in a separate lawsuit. These states are California, Delaware, Hawaii, Minnesota, Nevada, New York, Rhode Island, and Utah. A SLAPPback is a lawsuit you can bring against the person who filed the SLAPP suit to recover compensatory and punitive damages for abuse of the legal process. Even if your state does not have a statute addressing SLAPPbacks, you may be able to sue your opponent for malicious prosecution or abuse of process under the common law of your state. However, you should not underestimate the considerable expense required to bring a SLAPPback, like any lawsuit, to a successful conclusion.
Access to Government InformationThis section of the legal guide outlines the wide-array of information available to you from government sources. These sources range from your local city council all the way up to the largest agencies in the federal government. In fact, you might be quite surprised at how much information is available to you. And the best part is that you generally don't need to hire a lawyer or file any complicated forms -- you can access most of this information simply by showing up or filing a relatively simple request. Moreover, you don't need to be a professional journalist to share what you find with others who are interested in these issues; with nothing more than an Internet connection, you can make the information available to anyone in the world. For an impressive example of how some people are using the power of new information technologies in conjunction with government information, check out Adrian Holovaty's Chicagocrime.org, a browsable database of crimes reported in Chicago.
Regardless of what you publish online, it is likely that at least one (if not many) of the information sources we discuss in this section will be valuable to you. For example, you might want to find out whether the drinking water coming out of your faucet contains pollutants (information that is likely contained in documents held by the Environmental Protection Agency or one of its state counterparts). Perhaps you'd like to know more about how your local school board makes decisions (information that you can get by attending school board meetings). Or perhaps you are concerned that a real estate developer may have been sued for fraud (information that is available by visiting the courthouse in person or accessing the court's electronic docketing system).
Information from these government sources will be especially useful to you if you want to take your publishing activities beyond merely commenting on material posted by others. These sources can help you move into original reporting and enable you to comment in an informed fashion on local and national debates. You might even do a periodic post or column on subjects of particular interest to your website or blog. For example, the Gotham Gazette, an independent news site that covers "New York City News and Policy," has an entire section focusing on city government, which is largely based on meetings of the New York City Council.
We should point out, however, that the information you gather from these government sources doesn't have to be limited to the actions of the government itself. Government bodies collect extensive information on individuals, corporations, and other organizations. Much of this information is available to the public. You just have to know where to look.
The first thing you will need to consider is which government entity likely has the information you are seeking. Public access to government information extends to a broad range of government sources, including federal and state agencies, Congress and state legislatures, government boards and committees, and the courts. In fact, it might be the case that the information you are interested in is located in more than one place. A little advanced research on your part can go a long way when dealing with the government. Because different laws apply to different government entities, you will want to review each section of this guide that might apply to your situation. If you are not sure whether the information you seek is associated with a federal, state, or local government body, refer to the page on Federal, State, and Local Government Bodies for some helpful information.
It is also worth bearing in mind that laws granting access to government information are only one of many important fact-finding tools in your information gathering toolbox. These laws can be very powerful, but their scope is limited to records and information available through government sources. For a broad overview of how you can investigate a full range of actors, including government, individuals, and corporations, see the Newsgathering section of this guide and check out the Center for Investigative Reporting's entertaining and inspirational guide, Raising Hell: A Citizens Guide to the Fine Art of Investigation.
Information Held by the Federal Government
The federal government is a sprawling and far reaching entity headquartered in Washington, D.C., but with agencies and offices in almost every part of the country. A number of important laws govern your access to information associated with the federal government.
The most well known of these laws is the Freedom of Information Act ("FOIA"), which provides access to the public records of most departments, agencies, and offices of the federal government. But several lesser known laws are also important, including the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, the Federal Advisory Committee Act, which allows you to attend the meetings of boards and committees that advise agencies of the federal government, and the Presidential Records Act, which sets out the procedures you must follow to request records from the president and his or her close advisers.
The federal government often acts through boards, committees, and other government "bodies." Examples include the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Housing Finance Board. A common feature of these agencies, boards, commissions, and other government bodies is that they meet as groups to deliberate or take action on public business. If you wish to attend these meetings, you will need to become familiar with a category of laws called open meetings laws. These important laws give anyone, including members of the traditional and non-traditional press, the ability to attend the meetings of many federal government bodies and to receive reasonable notice of those meetings. In many instances, they also entitle you to obtain copies of minutes, transcripts, or recordings at low cost. See the section on Access to Government Meetings for more information and practical advice.
There are basically two types of federal government meetings you may wish to attend and each is governed by a different set of legal requirements. Federal agency meetings are governed by the Government in the Sunshine Act which gives you the right to attend the meetings of many federal agencies, such as the Federal Election Commission and the Federal Trade Commission. Federal advisory committee meetings, which are a strange hybrid type of meeting involving outside advisers tasked with giving advice to the federal government, are governed by the Federal Advisory Committee Act.
Information Held by State and Local Governments
Just as with the federal government, a number of important laws govern your ability to access information associated with state and local governments.
Every state has some version of a "Freedom of Information" (FOI) law — sometimes called a "sunshine law" — that governs the public’s right to access state government records. These FOI laws help the public keep track of its government’s actions, from the expenditures of school boards to the governor's decision to pardon prison inmates. For example, in 2003, a parent of a student in Texas, Dianna Pharr, spurred by the financial crisis in her local school district, began filing requests under the Texas Public Information Act to investigate the district's spending and operations. She and other parent volunteers established an online repository for the documents and made them available on a local community website, Keep Eanes Informed. Pharr's efforts received coverage in the local press, and have enabled her community to make informed decisions when dealing with school board proposals.
If the information you are seeking is contained in records held by your state or local government, you will need to review the section on Access to Records from State Governments in order to understand how to make a request under the relevant state law. For example, the California Public Records Act and the New York Freedom of Information Law govern access to records in California and New York, respectively. In many states, local government records can also be requested under the state open records law. Unfortunately, public officials sometimes deny that they are required to turn over information, deny that the public has any right to information, or fail to provide information in a timely way. To ensure that you get the information you need, you should review the section on Practical Tips for Getting Government Records.
If you are interested in attending the meetings of state or local government bodies, you should review the section on Access to State and Local Government Meetings. The most familiar examples of these kinds of government bodies at the local level include school boards, city councils, boards of county commissioners, zoning and planning commissions, police review boards, and boards of library trustees. At the state level, examples include state environmental commissions, labor boards, housing boards, and tax commissions, to name a few.
Courts and Court Information
The court system is yet another resource-rich place for you to access information. Your right to access the court system stems from the First Amendment, and has been expanded to give you the ability to attend almost all court proceedings and inspect public court records. The law provides important tools that you can use to help you understand the intricacies of a particular case, or watch how the court system performs. For example, you can use court records to check whether a doctor has previously been sued for malpractice, or to find the outcome of a criminal case.
You should first determine whether you need to access the information at the state or federal level. Once you’re armed with that knowledge, visit the pages that discuss access to court proceedings in federal court or state court, for information on your right to attend trials and other court proceedings. If, on the other hand, you want to review court records, such as legal complaints, motions, and other filings, visit the page on Federal Court Records or State Court Records, which describes your right to access court records and provides information on why your request may be denied, and how to appeal a denial. While there is no guarantee that you will get every court record or attend every court proceeding you desire, we've put together some tips that will help ensure that you take full advantage of the wealth of information available through state and federal courts. See the page discussing Practical Tips for Accessing Courts and Court Records for more information.
You may also wish to talk with the individuals associated with a court case. Visit the page on Access to Jury and Trial Participants to understand your ability to contact those who participated in the court proceeding such as the judge, lawyers, parties, witnesses, and jurors.
If, after reviewing the information in this section, you are still not sure where to start, you can always just browse one of the topics listed below: Access to Government Records: Describes federal and state freedom of information laws and provides practical advice on how to use these laws to acquire government records. Access to Government Meetings: Provides an overview of federal and state open meetings laws and explains how to assert your right to attend meetings held by federal, state, and local agencies, boards, committees, and other government bodies. Access to Congress and the President: Outlines the special set of rules that govern access to Congress and Presidential records. Access to Courts and Court Records: Provides an overview of federal and state laws that grant you the right to access federal and state court records and court proceedings.
Washington Protections for Sources and Source MaterialNote: This page covers information specific to Washington. See the section on Protecting Sources and Source Material for more general information.
Washington state has a shield law that protects the identity of confidential sources and other materials collected or prepared in the newsgathering process, such as notes and outtakes. The state legislature adopted the shield law in 2007, and no courts have applied it yet, so so many of its provisions are open to interpretation. However, some preliminary guidance is possible. First, the law protects anyone who runs or works in a news-related capacity for an "entity" (more below) that regularly provides news to the public, including through any kind of online media. Second, the shield's protection is qualified, meaning that a court may order you to disclose protected information if the information is unavailable elsewhere and there is a compelling public interest in disclosure.
Before the state legislature adopted the new shield law, Washington state courts recognized a common law (i.e., judge-made) privilege for reporters. Typically, when a legislature passes a specific law on a topic, such as a privilege for reporters, courts often say that the new statute takes the place of the common law on that topic and strips it of its force as law. While no court in Washington has said so, it seems unlikely that Washington courts will continue to recognize a common law privilege now that a shield law is in place. For more information on Washington's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Washington.
Washington state courts do not universally recognize a "reporter's privilege" based on the First Amendment to the U.S. Constitution or the Washington Constitution. One unpublished appellate court decision, issued prior to the passage of the shield law, hinted that a privilege under the First Amendment might exist. If Washington courts were to recognize a constitutional protection for reporters, that protection would exist in addition to the protections given by the shield law, and it probably would function like the reporter's privilege recognized by the federal courts in Washington.
Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live. Shield LawSource and Statutory Text
Washington's shield law, located at Wash. Rev. Code § 5.68.010, states in relevant part: (1) Except as provided in subsection (2) of this section, no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose:(a) The identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality; or(b) Any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or other data of whatever sort in any medium now known or hereafter devised. This does not include physical evidence of a crime.(2) A court may compel disclosure of the news or information described in subsection (1)(b) of this section if the court finds that the party seeking such news or information established by clear and convincing evidence:(a)(i) In a criminal investigation or prosecution, based on information other than that information being sought, that there are reasonable grounds to believe that a crime has occurred; or (ii) In a civil action or proceeding, based on information other than that information being sought, that there is a prima facie cause of action; and(b) In all matters, whether criminal or civil, that:(i) The news or information is highly material and relevant;(ii) The news or information is critical or necessary to the maintenance of a party's claim, defense, or proof of an issue material thereto;(iii) The party seeking such news or information has exhausted all reasonable and available means to obtain it from alternative sources; and(iv) There is a compelling public interest in the disclosure. A court may consider whether or not the news or information was obtained from a confidential source in evaluating the public interest in disclosure.. . .
(5) The term "news media" means:(a) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution;
(b) Any person who is or has been an employee, agent, or independent contractor of any entity listed in (a) of this subsection, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity; or
(c) Any parent, subsidiary, or affiliate of the entities listed in (a) or (b) of this subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection (1) of this section. Who is Protected?
The language of Washington's shield law is extremely broad. It covers the "news media," defined as Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.
It also covers any "employee, agent, or independent contractor" who is working (or has worked) for one of these entities. While no Washington court has interpreted this language, it clearly applies to online publishing. This would cover owners, employees, freelancers, and (most likely) volunteers for one of these entities.
A harder question is whether your website or blog qualifies as an "entity" that distributes news or information on a regular basis. If you publish only sporadically, then you likely fall outside the protection of the statute. More troubling, the meaning of "entity" is uncertain. The statute does not specifically require the entity to be formally organized, like a like a corporation, LLC, or nonprofit organization. But whether a court might read in such a requirement is less clear. Arguably, "entity" could refer to any platform for disseminating news or information, including a solo blog or website. Nevertheless, if you are operating in Washington, one of the benefits of creating a formal business entity would be increased certainty about coverage under the shield law. What Information is Protected?
The Washington shield law protects confidential sources and any information collected "for potential communication to the public." This latter category would include unpublished materials, whether confidential or non-confidential, collected during your newsgathering activities.
By publishing information received from a confidential source or obtained during newsgathering, you do not waive (i.e., give up) the protection for the source or other, unpublished materials.
The shield law does not protect physical evidence of a crime. How Strong is the Protection?
Washington's shield law is qualified, which means that a court may order you to disclose information under certain circumstances, even when you are covered by the statute (above). Specifically, a court will order you to reveal protected information if the party seeking your information can prove the following things by clear and convincing evidence: The person seeking the information has a reasonable chance of succeeding in his/her case, even without the information sought; The information is highly material (i.e., legally significant) and relevant; The information is critical or necessary to the maintenance of the person's claim, defense, or proof; The person seeking the information has exhausted all reasonable and available means to obtain it from alternative sources; and There is a compelling public interest in disclosure -- on this factor, a court may consider whether or not the information was obtained from a confidential source in evaluating the public interest in disclosure.
The same test applies in criminal and civil cases, and when the reporter is a party to the lawsuit in question. As a practical matter, however, the final factor ("compelling public interest in disclosure") will often weigh in favor of your disclosing information when the party seeking information is a criminal defendant trying to mount a defense. This factor will also weigh in favor of disclosure when your information is not confidential (i.e., not received in exchange for a promise of confidentiality). Constitutional Protection in Federal Court
Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.
The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
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