Pennsylvania: Statutory Civil Law
Contents
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Pennsylvania Constitution, art. I, § 1
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Introduction
Under Article I, Section 1 of the Pennsylvania Constitution, a person’s interest in his or her reputation is afforded the equivalent protection as a person’s life, liberty and property.1 This has been interpreted to apply to claims of defamation.
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Text of Statute
§ 1. Inherent rights of mankind.
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
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Cases
Nothing with applicable fact patterns at this time.
↑ Back to top- Emekekwue v. Offor, No. 1:11-CV-01747, 2012 WL 1715066, at *3 (M.D. Pa. May 15, 2012) (citing Pa. Const. Art. 1, § 1). ↩
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Statutory Right to Publicity, 42 Pa. Cons. Stat. § 8316
a. Introduction
42 Pa. Cons. Stat. § 8316, titled “ Unauthorized Use of Name or Likeness,” creates a cause of action where one’s image is used for commercial purposes without his or her consent. Under the statute, a plaintiff can obtain both monetary relief and an injunction barring the further distribution of the image. What is necessary under this statute is that the name or likeness used is valuable for commercial purposes and used for commercial gain. Plaintiffs under this statute, then, are more likely to have pre-existing publicity.
b. Text of Statute
42 Pa. Cons. Stat. § 8316 – Unauthorized use of name or likeness.
(a) Cause of action established. — Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose without the written consent of such natural person or the written consent of any of the parties authorized in subsection (b) may bring an action to enjoin such unauthorized use and to recover damages for any loss or injury sustained by such use.
(b) Parties authorized to bring action. — Such action may be brought by:
(1) The natural person.
(2) A parent or guardian of a natural person, if the natural person is a minor.
(3) If such natural person is deceased, any person, firm or corporation authorized in writing to license the commercial or advertising use of the natural person’s name or likeness by the natural person during the natural person’s lifetime or by will or other testamentary device; an executor named in a will or designated by a court of competent jurisdiction; or where there is no such authorization, then by the deceased person’s surviving spouse at the time of death until the surviving spouse’s death or, in a case where there is no surviving spouse, then any other heir or group of heirs having at least a 50% interest in the deceased person’s estate as provided for under law.
(4) Any other person, firm or corporation authorized in writing by such natural person to license the commercial or advertising purposes of the person’s name or likeness.
(c) Repose. — No action shall be commenced under this section more than 30 years after the death of such natural person.
(d) Immunity. — No person, firm or corporation, including their employees and agents, in the business of producing, manufacturing, publishing or disseminating material for commercial or advertising purposes by any communications medium shall be held liable under this section unless they had actual knowledge of the unauthorized use of the name or likeness of a natural person as prohibited by this section.
(e) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Commercial or advertising purpose.”
(1) Except as provided in paragraph (2), the term shall include the public use or holding out of a natural person’s name or likeness:
(i) on or in connection with the offering for sale or sale of a product, merchandise, goods, services or businesses;
(ii) for the purpose of advertising or promoting products, merchandise, goods or services of a business; or
(iii) for the purpose of fundraising.
(2) The term shall not include the public use or holding out of a natural person’s name or likeness in a communications medium when:
(i) the natural person appears as a member of the public and the natural person is not named or otherwise identified;
(ii) it is associated with a news report or news presentation having public interest;
(iii) it is an expressive work;
(iv) it is an original work of fine art;
(v) it is associated with announcement for a commercial or advertising purpose for a use permitted by subparagraph (ii), (iii) or (iv); or
(vi) it is associated with the identification of a natural person as the author of or contributor to a written work or the performer of a recorded performance under circumstances in which the written work or the recorded performance is lawfully produced, reproduced, exhibited or broadcast.
“Commercial value.” —Valuable interest in a natural person’s name or likeness that is developed through the investment of time, effort and money.
“Communications medium.” —Includes, but is not limited to, a newspaper, magazine, book, newsletter, billboard, telephone, radio, television, recording, computer software, digital communications network, transit ad, audiovisual work or global communications network.
“Expressive work.” —A literary, dramatic, fictional, historical, audiovisual or musical work regardless of the communications medium by which it is exhibited, displayed, performed or transmitted, other than when used or employed for a commercial or advertising purpose.
“Name” or “likeness.” —Any attribute of a natural person that serves to identify that natural person to an ordinary, reasonable viewer or listener, including, but not limited to, name, signature, photograph, image, likeness, voice or a substantially similar imitation of one or more thereof.
“Natural person.” —A living person or a deceased person who was domiciled within this Commonwealth at the time of such person’s death.
c. Cases
Nothing with applicable fact patterns at this time.
d. Practice Pointers
Under 42 Pa. Stat. and Cons. Stat. Ann. § 5523(1), the claims of “invasion of privacy” are subject to a one-year statute of limitation
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Civil Nonconsensual Porn, 42 Pa. Cons. Stat. § 8316.1
a. Introduction
42 Pa. Cons. Stat. § 8316.1, titled “ Damages in Actions for Unlawful Dissemination of Intimate Image” provides a private right of action for the dissemination of intimate images, defined as “ a visual depiction of the current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct.” 1 As of December 2016, there is proposed legislation that may alter the text and substance of this statute.
b. Text of Statute
42 Pa. Cons. Stat. § 8316.1 - Damages in actions for unlawful dissemination of intimate image.
(a) Cause of action established. — A person may bring a civil cause of action based upon unlawful dissemination of intimate image, as defined in 18 Pa.C.S. § 3131 (relating to unlawful dissemination of intimate image), 2 in order to recover damages for any loss or injury sustained as a result of the violation.
(b) Parties authorized to bring action. — An action may be brought by a natural person or a guardian of the natural person, if the person is incompetent.
(c) Damages. — A court of competent jurisdiction may award damages as set forth in this subsection. In determining the extent of injury, the court shall consider that dissemination of an intimate image may cause long-term or permanent injury. The court may award:
(1) Actual damages arising from the incident or $ 500, whichever is greater. Damages include loss of money, reputation or property, whether real or personal. The court may, in its discretion, award up to three times the actual damages sustained, but not less than $ 500.
(2) Reasonable attorney fees and court costs.
(3) Additional relief the court deems necessary and proper.
(d) Other remedies preserved. — Nothing in this section shall be construed to limit the ability of a person to receive restitution under 18 Pa.C.S. § 1106 (relating to restitution for injuries to person or property).
(e) Nonapplicability. — The provisions of this section shall not be applicable to a law enforcement officer engaged in the law enforcement officer’s official duties.
(f) Definition. — As used in this section, the term “law enforcement officer” means any officer of the United States, of the Commonwealth or political subdivision thereof, or of another state or subdivision thereof, who is empowered to conduct investigations of or to make arrests for offenses enumerated in 18 Pa.C.S. (relating to crimes and offenses), or an equivalent crime in another jurisdiction, and any attorney authorized by law to prosecute or participate in the prosecution of such offense.
c. Cases
Nothing with applicable fact patterns at this time.
d. Practice Pointers
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Under 42 Pa. Stat. and Cons. Stat. Ann. § 5523(1), the claims of “invasion of privacy” are subject to a one-year statute of limitation.
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Pennsylvania's criminal definition of nonconsensual porn is incorporated by reference in this civil cause of action. The original 2014 version of Pennsylvania's criminal nonconsensual porn law was drafted to cover only nonconsensual porn conduct perpetrated by a "current or former sexual or intimate partner" who acted with "intent to harass." Therefore, any perpetrator: (1) who was not a former sexual or intimate partner; or (2) "who disclosed private, sexually explicit material for profit, reputation enhancement, entertainment, or 'satire'" could arguably act with impunity. See Franks, Mary Anne, 'Revenge Porn' Reform: A View from the Front Lines (October 17, 2016). Florida Law Review, Forthcoming; University of Miami Legal Studies Research Paper No. 16-43. Available at SSRN: https://ssrn.com/abstract=2853789. This foreseeable scenario played out in a 2015 Penn State fraternity incident. The KDR fraternity was caught posting photos of naked, unconscious women to a members-only Facebook page, and explained "[i]t was a satirical group." Id. at 54. As of December 2016, there is proposed legislation that may alter the text and substance of this statute to close the "relationship loophole" in light of the KDR fraternity case. See Franks, 'Revenge Porn' Reform, at 55. In many states, criminal revenge porn laws are passed in original versions and then updated on a regular basis as society's understanding of this crime evolves. When conducting your research, be sure you are reading the current version of the statute for the most up to date definitions of covered conduct.
↑ Back to top- 18 Pa. Cons. Stat. § 3131. ↩
- Under this criminal statute, “a person commits the offense of unlawful dissemination of intimate image if, with intent to harass, annoy or alarm a current or former sexual or intimate partner, the person disseminates a visual depiction of the current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct.” 18 Pa. Cons. Stat. § 3131. ↩
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Wiretapping and Electronic Surveillance Control Act, Civil Relief, 18 Pa. Cons. Stat. § 5747
a. Introduction
Pennsylvania’s statute regarding wiretaps and electronic surveillance provides for a private right of action for victims whose electronic, wire, or oral communication are intercepted. Victims can seek to recover actual and punitive damages and attorney’s fees.
b. Text of Statute
18 Pa. Cons. Stat. § 5747 - Civil action.
(a) Cause of action. — Except as provided in subsection 5743(e) (relating to requirements for governmental access), any provider of electronic communication service, subscriber or customer aggrieved by any violation of this subchapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity which engaged in the violation such relief as may be appropriate.
(b) Relief. — In a civil action under this section, appropriate relief shall include:
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) reasonable attorney fees and other litigation costs reasonably incurred.
(c) Damages. — The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $ 1,000.
(d) Defense. — A good faith reliance on:
(1) a court warrant or order, a grand jury subpoena, a legislative authorization or a statutory authorization;
(2) a request of an investigative or law enforcement officer under section 5713 (relating to emergency situations); or
(3) a good faith determination that section 5704(10) (relating to exceptions to prohibitions of interception and disclosure of communications) permitted the conduct complained of; is a complete defense to any civil or criminal action brought under this subchapter or any other law.
(e) Limitation. — A civil action under this section may not be commenced later than two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation.
c. Cases
Nothing with applicable fact patterns at this time.
d. Practice Pointers
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