I recently went on my former employer’s website and my head shot is still on the “our staff” page. When I clicked on my picture, the website was directed to a “staff bio”. In the bio was information that I did not give consent to disclose about my own personal mental health history. This website is available to the public, which means that my former clients and any future employers can see this. What grounds do I have to take legal action?

Ann Kiernan replies:

Plenty! First, violation of your right of publicity. This means that you have the right to control who uses your name and picture for commercial purposes. One of the very first cases on this involved Thomas Edison. A patent medicine maker put the great inventor’s picture on the label, which read: “Edison’s Polyform. I certify that this preparation is compounded according to the formula devised and used by myself. Thos. A. Edison.” Edison sued, and testified that he had never authorized the use of his picture and that he never made or authorized this certificate. The court granted Edison an injunction, reasoning: “If a man’s name be his own property … it is difficult to understand why the peculiar cast of one’s features is not also one’s property and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it.” Edison v. Edison Polyform Manufacturing Co. , 67 A. 392 (N.J. Ch. 1907)

And you don’t have to be a world-famous person to have a right of publicity. In Faber v. Condecor, Inc., 195 N.J. Super. 81 (App. Div. 1984) a Kodak employee allowed his employer to use a family photograph in a company publication. Years later, another company used a reproduction of the same family photo as an insert in picture frames. A jury award of $45,000 for the unauthorized use of the family’s photograph was affirmed on appeal.

Another legal claim would be based on the serious invasion of privacy caused by the disclosure of your medical history. The Americans with Disabilities Act, which requires employers to keep employee medical information confidential, may provide yet another basis for suing. 

The laws on privacy differ from state to state, so be sure to consult a local employment lawyer for more information about how to protect your rights. Good luck.

Posted 03-24-2020

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.