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Free Expression Limitations on Liability

By  Kelly Legal Group

Exception for News and Commentary

You generally cannot be held liable for using someone's name, likeness, or other personal attributes in connection with reporting or commenting on matters of public interest. Many courts view this as a constitutional privilege based on the First Amendment, and some states have statutes explicitly exempting news reporting and commentary on public issues from liability. It is not always easy to determine what will qualify as news or legitimate commentary, especially on the Internet.

But the courts traditionally have taken an extremely broad view of "news" and "commentary" -- it encompasses any reporting or commenting on current events or social issues, "soft news" which is of primarily entertainment value, and conveyance of information on past events of interest. The exception is extremely broad, and would encompass almost anything that conveys information or comments on a topic of even arguable public interest. For example, courts have found that the following media uses qualified for the exception:

  • An Internet bulletin board devoted to discussing Howard Stern's candidacy for governor;
  • An unauthorized biography of a celebrity;
  • A magazine report on meeting women at summer concerts, with photos of some of the women;
  • A TV news report on allegations that an orthopedist was sexually assaulting his female patients;
  • A magazine article discussing a research study about how caffeine affects fertility, with a photo of a large family;
  • A fundraising letter discussing public policy questions in the field of education and relating a local political figure's praise of the organization sending the letter;
  • A magazine article on contemporary attitudes of Irish-Americans in New York City, including a photo of an individual dressed up for the Saint Patrick's Day parade;
  • A magazine article featuring the plaintiff as "Asshole of the Month," with a photograph of the plaintiff superimposed over the rear-end of a bent-over naked man;
  • A book profiling the various leading securities experts and analyzing their strategies;
  • A magazine article about a "bomber jacket," with information about the approximate price, the name of the designer, stores where it could be purchased, and a photograph of the plaintiff modeling the jacket;
  • A report that a professional female tennis star had posed nude for a photograph; and
  • A report on teenage grooming.

There are literally thousands of additional examples. While most of these cases involved the traditional print and broadcast media, there is no reason to believe that the exception for news and commentary will not apply to your online activities. One case, Stern v. Delphi Internet Services Corporation, 626 N.Y.S.2d 694 (N.Y. Sup. Ct. 1995), addressed this question directly and held that the news and commentary exception applied to the defendant's online bulletin board service.

Hosting advertisements on your site does not deprive you of the news and commentary exception. The courts have long recognized that for-profit news organizations that sell advertising space are entitled to protection. See, e.g., Arrington v. New York Times, 434 N.E.2d 1319, 1322 (1982); Berkos v. National Broad. Co., 515 N.E.2d 668, 679 (Ill. App. Ct. 1987). This principle should extend to online platforms that sell advertising space.

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