New Hampshire law recognizes the tort of invasion of privacy by appropriation of an individual's name or likeness. The privacy interest protected by this tort is an individual’s interest in the exclusive use of his own identity, to the extent that his own identity is represented by his name or likeness and the use of his name or likeness may be of benefit to him or to others. Liability for this tort exists if the defendant appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness. The misappropriation tort does not protect one's name per se; rather it protects the value associated with that name.
For example, appropriation occurs most often when the person's name or likeness is used to advertise the defendant's product or when the defendant impersonates the person for gain. On the other hand, as was the case in Remsburg v. Docusearch, Inc., a person who sells the personal information of another is selling the information for the value of the information itself, not to take advantage of the person's reputation or prestige. The seller does not capitalize upon the goodwill value associated with the information but, rather, upon the buyer's willingness to pay for the information. In other words, the benefit derived from the sale in no way relates to the social or commercial standing of the person whose information is sold. Thus, a person whose personal information is sold does not have a cause of action for appropriation.
In Mansfield v. Arsenault, the New Hampshire Supreme Court noted that New Hampshire law has not yet recognized the false light privacy tort. However, like the other three torts discussed above, this tort is widely recognized in other jurisdictions, and it is possible that the New Hampshire Supreme Court could recognize the tort in a future case. In Mansfield, the Court analyzed the elements of the false light privacy tort and held that, even if New Hampshire law recognized the tort, the plaintiffs still did not meet the tort’s elements in that case.
The Court noted that a false light claim requires the plaintiff to show that the defendant published material containing some falsity about the plaintiff. The “falsity” requirement is met in one of two ways: either the publicized information is actually false, or the publicized information is true but creates a false impression about the plaintiff. Additionally, for the defendant to be liable, the false light that the plaintiff was placed in must be highly offensive to a reasonable person, and the defendant must have had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
The plaintiff’s claims related to the defendants’ reality TV show called “North Woods Law,” which featured the work of New Hampshire Fish & Game Department conservation officers. One episode of the series included a segment about an investigation into an illegal marijuana grow in New Durham. The plaintiffs lived near the area of the illegal grow. As part of the investigation, a conservation officer and a local police officer approached the plaintiffs outside their residence and questioned them about the grow. The plaintiffs cooperated and denied any knowledge. This short exchange was recorded and aired in the episode, which also mentioned the subsequent arrest of the plaintiffs’ neighbor. Although their faces were blurred, the plaintiffs sued, alleging that the defendants invaded their privacy by portraying them in a false light and appropriating their images and likenesses for commercial benefit.
The Court disagreed, holding that it did not need to determine the issue of whether the false light tort was recognized by New Hampshire law because the plaintiffs could not have met the elements of the tort anyway. The Court reasoned that the plaintiffs did not allege the required falsity and that no reasonable person would find the portrayal of the plaintiffs in the episode to be “highly offensive.”
If you think that your privacy has been invaded in a manner actionable under the law, you should consult an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.
Samantha J. Heuring