Privacy Harms of Appropriation

Appropriation is described by both Solove and tort law as the “use or benefit the name or likeness of another” for one’s own gain. This originated in 1902 when a child was put on an advertisement for a product without permission of the legal guardian. As a result, the child was subject to social injury through teasing from others in the town who saw the flyer. The child was sufficiently traumatized by this situation that she sought medical treatment (Roberson v. Rochester Folding Box Co., 171 N.Y. 538 | Casetext Search + Citator, n.d.). This case was notable because not only was it one of the first instances of tort law invocation on the subject, but the victim in this case was also  not the subject of any particular malicious intent (Solove, 2006). In fact, the subject of appropriation in this situation was simply displayed in neutral terms in an advertisement. The defamatory social injury was a result of others being amused by her inclusion in an advertisement without her permission. As the child showed discomfort, this invited further comment.

Following this event, a law was passed in 1903 preventing this type of privacy harm. Ultimately, this was due to the fear of loss of dignity in early 1900s society. Social standings were highly heirarchial and upper class individuals likely feared that their likeness would similarly be used in a way they were not comfortable with.

Similarly, the unauthorized use of a likeness ran afoul of property law. As social constructs could be considered a possession in the early 1900s, individuals feared losing this social standing as it indirectly formed a sort of social currency. By having this social currency spent on vouching for products or services the individual had not actually agreed to support, the individual saw their credibility lessened. As a result, tort law accounted for this as a form of property theft.

Another modality by which appropriation causes harm is through hijacking the identity of an individual. If an individual is shown to recommend a product or service that they do not actually use, this could be used to foster an incorrect narrative regarding the person. For example, showing an advertisement for a medical product with the likeness of an individual implies that said individual is a user of that medical product. If that medical product is for any illness that carries a social stigma, it may be used to incorrectly shape the narrative regarding that individual’s private life.

References:

Roberson v. Rochester Folding Box Co., 171 N.Y. 538 | Casetext Search + Citator. (n.d.). Retrieved March 9, 2024, from https://casetext.com/case/roberson-v-rochester-folding-box-co-1

Solove, D. J. (2006). A Taxonomy of Privacy. University of Pennsylvania Law Review, 154(3), 477–564. https://doi.org/10.2307/40041279