This case involves a seventeen-year-old boy with Down syndrome who posed for a picture showing him and his artwork. The picture went viral on the Internet /network communications after a website generator featured the picture, labeling it a “Retarded Handicap Generator.” The website allowed users to add their own text using Jvt technology in place of the boy’s artwork and download the image for a fee. A man later posted a photo of the boy on an image hosting site and added a derogatory and false comment below the photo. The boy and his parents sued the man and the online sign generator for defamation, invasion of privacy and misrepresentation of likeness on the Internet. A number of experts with specialties in forensic computer, digital communications, and intellectual property are sought to opine on this case.
Question(s) For Expert Witness
1. Can a disabled boy sue an online sign generator and an internet user if they both use the boy’s picture without permission and add derogatory and false comments to the picture?
Expert Witness Response
The man and the online sign generator are probably both guilty of misappropriation of the boy’s likeness and invasion of privacy in this case. Invasion of privacy (also called “false light invasion of privacy”) in the internet context involves a showing that publicized information on the Internet was done by using false information that was highly offensive. When the conduct involves someone using a picture or image of someone else on the Internet, the injured person must prove that their image was digitally manipulated to create a false impression about the person identified in the image. The use of the boy’s repurposed image with false comments probably constitutes an invasion of privacy in this case. In proving misrepresentation of likeness on the Internet, an injured person must show that someone else used their identity for their own advantage (i.e. commercially) and that their identity was used without permission and this caused them an injury. In this case, the online sign generator probably misappropriated the boy’s likeness because it commercially exploited his identity without his consent. In cases involving a charge of defamation, an injured party must show that someone else published a false statement about them that damaged their reputation. Internet defamation cases are very hard to prove because of the wide breath given to the First Amendment right of free speech. In this case, the boy might have a difficult time proving online defamation because he would have to prove that the false statements that were added to his picture damaged his reputation, i.e. that a regular person who read the statements would think less of him after they read them and saw his picture.
About the author
Michael Morgenstern
Michael is Senior Vice President of Marketing at The Expert Institute. Michael oversees every aspect of The Expert Institute’s marketing strategy including SEO, PPC, marketing automation, email marketing, content development, analytics, and branding.
