I was walking down the street with my boyfriend a photographer asked if he could take a picture of us. We agreed and he snapped the photo and left. No consent forms were signed. Now the photo is being used for COVID 19 testing ads and on websites talking about rent forgiveness by major publications and websites. Do we have any grounds to sue for defamation? The photos imply we're sick and/or struggling financially, neither of which are flattering.

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    What jurisdiction? – jeffronicus Jul 6 '20 at 17:33
  • Do these ads and websites directly say anything false about the picture? Or is it just implication, without saying anything? – user6726 Jul 7 '20 at 22:29

No one can give you a meaningful answer unless you specify what jurisdiction you're in. Assuming you're in the United States:

There's no liability for defamation.

The company using your picture isn't saying anything about you. Whatever you might feel the implications are, the reasonable reader would not view the ads and conclude that you are actually sick or struggling financially. Even if they would, it is not defamatory to say that someone got sick or that they are struggling financially.

As you indicated, those implications would merely be unflattering, and there is no liability for saying something unflattering about someone.

There's potential liability for "misappropriation of likeness."

One of the four commonly recognized privacy torts covers the misappropriation of a plaintiff's likeness. The classic case would involve the use of a celebrity's name or picture to sell a product that she has not endorsed.

Some states allow lawsuits for misappropriation; others do not. Even among the ones that do allow it, there is some variation as to the facts you must prove to win the case. As I recall, some states require that the defendant use the name or likeness for commercial purposes and some require that the plaintiff's likeness already had some meaningful value outside the context of the misappropriation in question.

If you're interested in pursuing the case, contact a lawyer with experience in privacy torts in your jurisdiction.

  • 1
    There may be exceptions, but my understanding is that the "exclusion from society" language is a euphemism for sexually transmitted diseases. I don't remember seeing any cases permitting a case to go forward on any other diseases, with the exception of leprosy, which is associated with an exclusion of quite a different character than COVID-19. According to the Restatement, at least, liability should not attach where "the disease may be expected to run its course to death or recovery within a short time." – bdb484 Jul 8 '20 at 15:08
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    This, by the way, is the problem with assuming that anything is "obvious" in the law. It's so full of overstatement and understatement and circumlocution that many things that seem obvious from the stated rule look quite different when you've spent some time actually applying them. – bdb484 Jul 8 '20 at 15:11
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    My understanding is that using an explicit term today doesn't change the meaning of its euphemism from 100 years ago. If you have some cases supporting the idea that per se liability attaches to statements about diseases other than STDs or leprosy, I'd love to see them. Like I said, I imagine they're pretty extreme outliers, if they even exist. – bdb484 Jul 8 '20 at 16:59
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    OK. What I imagine is based on the Restatement and lots of defamation cases, but you're of course free to interpret the law however you choose. Sorry for upsetting you. – bdb484 Jul 8 '20 at 18:35
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    Of course. My apologies. – bdb484 Jul 9 '20 at 16:09

Do we have any grounds to sue for defamation?

At the outset it seems unlikely, although this is hard to determine without seeing or knowing more details about those ads. Depending on details that are missing in your description, you might have other claims that have nothing to do with defamation such as unjust enrichment.

It is common knowledge that people appearing in ads do not actually suffer the struggles portrayed therein. This practice is so common that it basically constitutes the default presumption. Unless the ads make false representations which override that default presumption and are detrimental to your reputation, you will be unable to prove that a reasonable person has or would have a negative impression of you based on what the ads portray. In that case, it cannot be concluded that the ads defame you.

You mention that "[n]o consent forms were signed". In most claims this might not suffice, since signing a document is not the only form of consenting to the use of one's image. An authorization can be verbal, or it may be inferred from the person's conduct or acts.

Your short description has no indication of any communication between you and the photographer other than the permission to take a picture. A failure to ask the photographer about the purpose of the picture(s) would weaken --although not necessarily defeat-- a claim of abuse of your image or of someone else's unjust profiting therefrom. That is because your failure to inquire is tantamount to a disregard on your part as to what a stranger might do with your image. Consequently, in many contexts this could be construed as your waiver of some rights or entitlements.

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    There is a case for suing for compensation. Commercial use of a person's likeness usually requires a release. – jeffronicus Jul 6 '20 at 23:23
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    How is it not easy to say about defamation? What is the potentially false statement contained in a photograph? – user6726 Jul 7 '20 at 19:17
  • @user6726 "What is the potentially false statement contained in a photograph?" An ad has more content than a bare, unedited photograph. We don't know what captions (if any) have been added, or whether the photograph has been altered or juxtaposed with other material in a way that overrides the default presumption. That is why defamation cannot be automatically discarded, even if generally speaking it is unlikely. – Iñaki Viggers Jul 7 '20 at 20:09

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