Names changed to protect privacy?
January 7, 2006 7:18 PM   Subscribe

Scenario: Linda, an author, is at a party. Linda says that she is writing a book about near-death experiences. Sarah, a guest at the party, says, "Oh, I had one!" and proceeds to recount her experience to the assembled guests. Linda finishes writing her book and includes Sarah's story in it, using Sarah's real first name and some details from Sarah's life (profession, husband's first name and profession, Sarah's religious background). Is Linda legally allowed to do this without changing Sarah's name in the published book? Did Sarah waive her right to privacy by telling the story at a party? What about Sarah's personal details, which were not revealed at the party, but known to the author because of their shared social circle? Legal citations are appreciated.
posted by xo to Law & Government (25 answers total)
Hey, XO, I'm just a journalist and no lawyer, but the important privacy precedent we learned about was Shulman v. Group W Productions, Inc., decided by the California Supreme Court (18 Cal. 4th 200, 955 P.2d 469, 74 Cal. Rptr. 2d 843 (1998)).

A Ms. Ruth Shulman was in a horrible car accident, and had to be pried from her auto using the "jaws of life." A nurse was wearing a mic for the show. On the way to the helicopter, the mic picked up Shulman saying, "I want to die."

Top courts ruled she could sue for invasion of privacy. Not sure what happened after that.

Of course, your party is not a car accident. So there's much less of a reasonable expectation of privacy. Still, the possibility of a suit exists, and book authors typically get waivers for things like this to be on the safe side.
posted by johngoren at 8:16 PM on January 7, 2006

(Just to clarify, that was a TV show about car accidents.)
posted by johngoren at 8:18 PM on January 7, 2006

I think this is an answer that definitively needs a lawyer to answer. My gut reaction would be the author is in the wrong... how deeply in the wrong I am unsure. But it seems that anytime one uses personal information in the media that is not gleaned from an overly public setting you have to get waivers. The party was not an explicit public setting setting, imo of course
posted by edgeways at 10:56 PM on January 7, 2006

I'd hope that, at the very least, the social circle would come to understand what a sleaze the author is.
posted by Good Brain at 11:25 PM on January 7, 2006

Was this a party in a home or a pub/bar/hall/whatever?

If the latter, I believe the expectation of privacy would be a lot less.
posted by Kickstart70 at 11:39 PM on January 7, 2006

XO, is there some sort of privacy commissioner for your state or country? In Canada, we have a privacy commissioner. When a blog with more than two years of *detailed* diary entries about someone I know appeared on the Internet, the person mentioned contacted the Canadian privacy commissioner to find out what protection they had. (However, they didn't get the answer they were hoping for. Said blog has now disappeared, much to that person's relief.)
posted by acoutu at 12:18 AM on January 8, 2006

I'd just like to throw out a dissenting opinion on supposed "sleaze"...

Authors often have to draw from personal experiences/conversations in order to get material to write... There isn't much information in the post about what kind of information was divulged in the book, how damaging it could be, etc..

Furthermore, it's stated that only her real first name was used.. not any last name (presumably not a fake one).. Who's really going to know that it's that sarah save for people who were at the party and overheard it ... and happen to read the book?

I don't think this is definitely "sleazy"... maybe the author really thought he/she was ok putting this in the book, since Sarah openly talked about it in a public setting (a party is public-ish)...

With more context, I might agree that it's bad form... but given what little we know, I can see the author thinking that Sarah was sharing her story for the purpose of the book... she volunteered the fact that she had a near death experience upon the author's mention of the book, after all...
posted by twiggy at 12:25 AM on January 8, 2006

Author said: I'm writing a book about X
Person Said: Oh, here's a story about X

What did Person think was going to happen? If you were writing a book about annoying cats and told me so, and I then proceeded to tell you about my annoying cat - well, I think there's an implied permission. As for the other details about her life, that's probably out of bounds, and you might as well ask permission to use names, identifying facts - the only reason not to is if you think the person would say no.
posted by muddylemon at 1:43 AM on January 8, 2006

If you were writing a book about annoying cats and told me so, and I then proceeded to tell you about my annoying cat - well, I think there's an implied permission.

Well people sometimes just don't think (especially at parties) - they might have considered the "I'm writing a book..." comment just part of the conversation, not a request for an interview on the topic. I could picture myself doing the same thing, and getting pissed off when my story appeared in print months later. One would imagine that going back and asking sources for the specific permission is something an author should know to do.
posted by Jimbob at 3:28 AM on January 8, 2006

Errrr.....No offense in case this isn't just a 'Scenario', but what author in their right mind wouldn't immediatly ask Sarah if it was okay to use that story in their book as it so inspired them. Or, if the inspiration came later, immediatly call her up and make sure it's okay?

I don't really think any author would spend any time writing up all that info without attempting to contact her. And if they did, yeah, definate sleaze.

A party is only a 'public' place if it's held in a 'public' place that everyone has access too, and anyone can come and go as they see fit. This sounds more like a house/dinner party, which would have invited guests. That would make it a 'private party'. However, she did indeed tell the author the story knowing that he was writing a book. I'm not a lawyer, but I think that both sides would have a good argument.

If I was the author, I'd kick myself in the groin a few times for being foolish enough to not ask immediatly, and especially so because I should have found some time to sit down with Sarah and really interview her regarding the subject. There could have been many things that you missed, she didn't remember, or she negelcted to tell in the story. It's obviously a non-fiction book, so being the author, I should have took some time to do my research and had a proper interview instead of attaching some story that goes 'And this one time, at band camp, I had a near death experince!'. I'd give her a ring and fix the problem, get a waiver, and publish the book with a lesson learned.

In short, I think the Scenario Stinks. The Author in it is lazy and sleazy, and should think about switching to Fiction where any any association with real individuals is coincidence.
posted by Phynix at 4:00 AM on January 8, 2006

Would anything we read in the newspaper be there if you needed people's permission to write about them? The author may be sleazy, but I can't imagine this is illegal.
posted by duck at 5:03 AM on January 8, 2006

Journalism (Newspapers) and Books are totally different things. Author in the Scenario is not a reporter.
posted by Phynix at 5:14 AM on January 8, 2006

twiggy said:

>Furthermore, it's stated that only her real first name was used.. not any last name (presumably not a fake one).. Who's really going to know that it's that sarah save for people who were at the party and overheard it ... and happen to read the book?

How about Sarah's friends, family, coworkers, members of her church, and casual acquaintances? Other than those people, of course, no one will draw the connection.

The common practice and the common courtesy is at least to use a fake first name, and perhaps even to disguise or fictionalize enough personal details that don't really matter so as to throw off the scent of any hounds that might be sniffing.

Linda is in the wrong.
posted by megatherium at 5:37 AM on January 8, 2006

Actually, usually you do need people's permission to write about them using their names and personal details in newspapers too, unless they're committed a crime or are public figures or politicians or celebrities and so on. But this would depend on each country's legislation.

I don't know how the privacy laws apply in the US for this sort of thing, but the fact the author used only the first name suggests that she was aware it would/might be a breach of privacy if she'd mentioned the full name without requesting consent.
posted by funambulist at 6:18 AM on January 8, 2006

I tend to agree with twiggy and muddylemon: why would you tell an author doing a book on near-death experiences your own such experience if you didn't want to be in the book?

Um, xo, would it be too much to ask you to clarify your position in this? Are you a friend of Sarah's? I ask because you seem to be looking to back up her position, and I wonder if we're getting all the relevant facts.
posted by languagehat at 6:36 AM on January 8, 2006

Journalism (Newspapers) and Books are totally different things. Author in the Scenario is not a reporter.

Journalists may have different ethical codes than others, but they don't have their own laws.
posted by duck at 7:40 AM on January 8, 2006

Actually, usually you do need people's permission to write about them using their names and personal details in newspapers too....

In the US, this is not the case. Explicit permission is assumed if you agree to talk to a known reporter. Even if you do not agree, you can't sue for slander if the reporter tells the truth.

I think some people are confusing ethics with law here. Sarah knew Linda was an author writing a book about near-death experiences. Sarah volunteered her story and did not request secrecy or special acknowledgment. Given the circumstances, it was not strictly ethical of Linda to print Sarah's story verbatim without her explicit permission. However, Sarah has no clear legal recourse against Linda.

In the US, there is no such thing as a "right to privacy" in the sense that people are using that term above. Invasion of privacy is defined under civil law and varies from state to state. Even if this situation is covered by her state's tort law, Sarah would still have to prove actual damages in order to get an injunction or monetary judgment against Linda, i.e., Sarah lost a job because her boss now thinks she's a loon.

As far as I can see, the only possible legal avenue is copyright law. Sarah could claim (supported by the folks at the party) that she is an unacknowledged co-author and therefore deserves a share of the profits from the book. But unless Sarah's story is the centerpiece of a bestseller, this would not be worth testing in court.
posted by naomi at 8:35 AM on January 8, 2006

Really, unless the story involved is something embarrassing (which said at a party, doesn't appear to be), I'm not sure why Linda would be making a fuss. I'd be like,"Woot, I'm in a published book!" Its not like its a book that covers the art of cleaning one's bum hole, ya know?

What exactly is the real issue with this scenario? Why is Linda so upset that her story was used, one that she felt free to share publically before? Is it simply due to not gaining initial permission from the author? Had the author asked, would the scenario be entirely different?
posted by Atreides at 9:15 AM on January 8, 2006

Thanks for the thoughts so far, and here's some follow-up info for those that requested it:

I know Sarah, and she is the type of person to reveal too much personal info while out in public. She's not upset that her story was included in the book, but about the identifying details.

I think she assumed that if the story would be used, that there'd be a follow-up call or something to ask if it was okay, to clarify the version of the story (since it was told at a party and not in an interview setting), and to ask her if she wanted her name changed. The author and she are from the same town, so it's an easy match when it says "I was at a party talking to Sarah, this occupation, married to Jeremy, this occupation, they have three kids." The story goes on to mention Sarah's religious history (and therefore the devoutness of her parents), what dogma Sarah accepts/rejects, and the names of dead friends/family that appeared in Sarah's near-death experience.

Sarah's not interested in a lawsuit or receiving proceeds from the book, but I think she'd like to inform the author if the author has done something illegal, and she'd like to request that subsequent printings of the book have her name changed in them... if that's a reasonable legal expectation.
posted by xo at 9:33 AM on January 8, 2006

In the US, this is not the case. Explicit permission is assumed if you agree to talk to a known reporter.

That's true, and it pretty much works the same everywhere. But in that case, you are agreeing to talk to a reporter as a reporter in their professional capacity, you're going to them or they're coming to you with the explicit intent of writing a story.

The situation is different here, or at least perceived as different. I'm not sure the simple fact that during a party Linda says she is writing a book about the topic and Sarah goes on to talk about her own related experience would be the same situation as assumed explicit permission for publishing.

On the other hand, Linda did not use Sarah's full name, so my impression is what she did would not be illegal even in other countries where there are laws about the right to privacy that require explicit consent for personal data to be published. A first name - and a few generic details about her life - would not be considered private personal data. I was just wondering if the situation would have been different under US laws if she'd published Sarah's surname as well.
posted by funambulist at 9:40 AM on January 8, 2006

As someone who has dealt with lawyers on this subject before specific to non-fiction books, I would say that you should have explicitly gotten Sarah's permission to use the story. In writing would have been the most sound legal thing to do, but a clear agreement that you were in fact going to use the material in a book would have been enough. Does Sarah have a viable case? Possibly, it is in questionable territory. Book publisher do not want to go to court or even risk the possibility of going to court so we generally change the details or try to make the reference to a source as vague as possible unless we have written permission to use their stories. I doubt Sarah would sue, but you could have at least gotten in touch with her after the book was done and reconfirmed that you would have liked to use her story. As an editor I would have asked you if the stories used in the book have all been adequately checked and permission had been given for you to use those works. If not I would have suggested a name change. It seems moot at this point, but for subsequent printings I would make those changes as the subject has asked for it and you do not have any documents that prove she agreed to letting you use her story.

Funambulist- the question of privacy is a tricky one ans if Sarah could prove these were unique aspects of her life and the courts agreed then there could be repercussions.
posted by rodz at 10:07 AM on January 8, 2006

she is the type of person to reveal too much personal info while out in public.

Then this should be a valuable lesson for her. She should definitely contact Linda and ask nicely to have identifying information changed (that seems more productive than idle legal threats), but basically, this falls into the category of Things You Ought to Know Better Than to Do.
posted by languagehat at 11:13 AM on January 8, 2006

Well, it certainly would have been easier to address this question had you just mentioned the real issue. The question seemed to be more about the author's worries, and not the story tellers. Anyway, my previous decision still holds true, the Author is Lazy, and a Sleaze.

I suggest she kindly ask him/her to remove any identifying information, including real name, occupation, husband, reference to kids, etc. Especially the family/religious history needs to be removed.

Sarah can make an okay argument in court about the story at the party, and the Author will have a good argument as well. However, Sarah has an excellent argument when it comes to the Author publishing personal background information that she did NOT give permission to use. Just because the Author knew that information, doesn't mean he's allowed to publish it without permission.

So, to be clear, publishing personal information including name, occupation, family information, and specificaly personal, family, and religious history is indeed an invasion of privacy.

I'm not a lawyer, of course, so this may not fit with the legal defination, and Sarah may not have any legal recourse. But she could certainly sue in a Civil setting. If the story is a major focus of the book (As in, more then 15-20 pages), and the Author does not agree to make any changes after you inform them that they arn't allowed to publish personal information like that without permission, I'd suggest she go talk with an Attorney. She won't have to prove damages, she can specify that her story and her resulting personal information that was not approved for use consists of a large portion of the book, and as it was used without her permission, she may (or may not) be untitled to some of the profits.

Anyway, this Author certainlly needs to be taught a lesson, so future people will not get hurt worse then Sarah.
posted by Phynix at 2:12 PM on January 8, 2006

The publisher should be notified. The author is clearly in the wrong, but I suspect her editor may be equally delinquent.
posted by mkultra at 4:58 PM on January 8, 2006

While I wouldn't recount a story at a party to an author specifically seeking such stories if I wasn't comfortable with the possibility that it would be included in her project, I still find it surprising that the author would not have followed up and gotten permission. Was the story included in a very casual way, like as an example in the introduction for how ubiquitous this phenomenon is, or something? If it was included as its own chapter or as a detailed description, I would just be amazed by the poor researching. If it was more of a passing comment from the author (once at a party I talked to Sarah...) then perhaps it would be different... I dunno, though; I did think journalists had to get permission. Although, a photo of me was once published in the VVoice and I don't think I ever gave them explicit permission... but I was in public when the photo was taken -
posted by mdn at 12:16 PM on January 9, 2006

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