"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been necessary from time to time to define anew the exact nature and extent of such protection." -- Samuel D. Warren and Louis D. Brandeis, THE RIGHT TO PRIVACY, 4 Harvard Law Review 193 (1890)This case turns on a particular section of Virginia law which protects the right of an individual to control the use of his or her name. Mr. Avrahami believes that USN&WR violated that law when it rented his name to the Smithsonian Magazine. If Mr. Avrahami prevails in court, it may have profound implications for the future of the direct marketing industry and the sale of personal data.
The case arises at a time of growing public concerns about the misuse of personal information. Several opinion polls show public opposition to the sale of personal information. When public concerns about industry practice are sufficient, Congress will often pass legislation if courts fail to act. In fact, the first federal privacy law The Fair Credit Reporting Act came about after disclosures of rampant violations of privacy by the credit reporting bureaus.
The case is important for another reason. The Virginia law is based on a famous law review article that appeared in 1890. In The Right to Privacy, Samuel Warren and later-to-be Supreme Court Justice Louis Brandeis argued that the law should protect an individual's right to control the use of his or her name or likeness.
Legal scholars have debated for years exactly what it is that the privacy right described in 1890 protects. In one of the most famous articles, Dean Prosser suggested that when Brandeis and Warren spoke of a right to privacy, they were really describing four rights -- a right to be protected from intrusion, a right to control the disclosure of private facts, a right to protect the commercial value of one's name or likeness, and a right to protect against "false light" disclosures.
Mr. Avrahami's case focuses on the commercial appropriation issue. He is saying that USN&WR misappropriated something of value -- his name -- when it sold it to another publication. Courts have generally taken the position that the law protects only the names of celebrities, sport heroes, and movie stars. Mr. Avrahami contends that the law should protect everyone, not just the commercially successful. He says that the fact that companies are able to buy and sell his data is enough to establish that the information has value.
The case also raises an interesting privacy dimension for libertarians who believe that market solutions are preferable to government regulation. In the area of privacy, this requires establishing a property interest so that individuals are able to negotiate for the commercial value of the their names. While traditional legal analysis tends to focus on whether it is right for an individual to own his name, libertarians and economists look at whether it is efficient. This issue is likely to come up in the Avrahami case.
Finally, the case is taking place as many states across the US and many countries around the world are considering new safeguards to protect personal information. In Europe a new directive on privacy protection may limit the ability of marketing firms to collect and sell personal information. In Canada privacy agencies are considering safeguards to protect medical records, credit reports, and personal communications. New proposals to promote anonymous transactions are also under consideration.
Will the Avrahami case establish new legal precedents in Virginia or lead to new legislation in Washington? Only time will tell.
This is the critical provision
"Unauthorized use of name or picture of any person; exemplary damages; statute of limitations -- A. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm or corporation so using such person's name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damage for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages." (Code of Virginia, Section 8,01-40)
Appropriation of Name or Likeness. One who appropriates to his own use of benefit the name or likeness of another is subject to liabaility to the other for invasion of his privacy.(Restatement (Second) of Torts, section 652C)
"Privacy promotes individual autonomy, personal growth, and human relations. Computerization of personal information threatens to erode, and possibly destroy, the personal privacy that individuals in our society have enjoyed until recently. This Note set forth a common-law solution for protecting privacy in the face of the use of computers to collect, store, process, and disseminate personal information. Society must recognize that individuals have a legal interest in information privacy. In the case of the private sector's use of personal information, the law must recognize that the private commercial dissemination of private information may, in some cases, be tortious. Recognition of such a tort by the courts will force businesses to be more responsible in transferring personal information. The more responsible businesses are in transferring such information, the more individuals and society can continue to enjoy the benefits of individual privacy."
Last Updated: November 5, 1995
Page URL: http://www.epic.org/privacy/junk_mail/law.html