The right to privacy and to be protected from commercial exploitation has a precedent in Prosser, who saw it as a right to value, which the claimant could exploit by selling licenses. Evidence of its proprietary nature could be seen from the exclusive licensee had a right of publicity which entitled him to prevent the the use of the name or likeness by a third person.Most right to privacy cases deal with the economic aspects and do not cover the mental stress aspect. Other tort specialists such as Harper and James were more aware of the distinction, and recognised that the two unrelated ideas of emotional stress and purely financial loss produced a legal grey area which did not make for clarity of thought.
In most cases the issue of financial loss is not separate but is related to the emotional stress of the exploitation of personality.
According to Bloustein the name or likeness which was used had no commercial value, which could not justify legal action. The only way a right to privacy could exist was if society placed a value on the image itself and on the idea of a right to privacy. ‘every man had a right to privacy not because of its commercial worth but because it would be demeaning to human dignity to fail to enforce such a right.
The core of the right to privacy protects against: peeping toms, the collection and dissemination of personal data, watching and photographing individuals, intruding into public places, eavesdropping and wiretapping. It does not include harassment, unsolicited mail, nuisance phone calls, neither does it include commercial exploitation.
When applied to celebrity the law does not deny the celebrity in question the right to privacy, rather it prevents the unlicensed use of their image. Their celebrity is not inconsistent with their right to privacy. If a famous athlete finds his image is used without his permission, he is entitled to compensation, but the concern is with his public reputation rather than his private life.
If a non-celebrity has their image widely used in an advertisement, the claimant’s anonymity would not be an issue since they would be subject to unwanted attention, unless there was damage to their dignitary interests, which might be protected at law either as part of a general right to privacy or by a tort of appropriation of personality which might provide redress for either or both economic or dignitary interests.
The principle of privacy
English courts see privacy as a value that underlies the existence of a rule of law, but this does not define the specific rules to be deduced and applied. In America where celebrities have complained over invasion of privacy over unauthorised use of images, the courts refused to accept they had suffered loss of dignity since they were willingly licensing their images to advertise or endorse products. By virtue of their celebrity, some claimants were considered to have waived their right to privacy.
Separate but related is the right to publicity. The first case was Halean Laboratories v. Topps Chewing gum Inc, the parties were rival chewing gum makers. With knowledge of the claimant’s contracts with particular baseball players the defendant deliberately induced the players to enter into a contracts authorising the defendant to use their image with their own chewing gum. The right of privacy was a personal and non-assignable right and the contracts did not give the claimant any property right or other legal interest to sue. The court rejected the claimant’s defense that the contracts created no more than a release of liability and that a claimant would have no other interest in the publication of his picture. Independently of the right to privacy, a person had a right in the publicity value of his photograph and the right to grant the exclusive right to publication of his photograph. If they suffered no moral damage, they felt the loss of financial reward keenly.The right of privacy was born and with it the right to grant exclusive rights of exploitation, which could potentially be enforced by a licensee.