We had a community event, a July 4 ice cream social, on our grounds and the public was invited. A newspaper came and photographed a bunch of stuff, including some residents. Good public relations, right? Wrong. Now we are being accused of violating residents’ privacy rights since some of their images appeared in the newspaper. Are we liable for any penalties or wrongdoing? Should we have handled this differently?
To respond in brief, unfortunately, yes, you are liable and you should have handled this differently. A resident’s image, without the resident’s written permission, cannot be used to promote the business interests of an organization serving seniors. There may be liability if a resident sues in court or if a state licensing agency finds you were using the pictures from the event to attract new residents.
The argument that you are not the newspaper and did not instruct the newspaper to publish any pictures is a defense that may not win the day. A court or state agency will take the position that you should have advised the newspaper employees not to take or use pictures of residents without their written permission. Such a permission would defeat a resident’s claim against you, the operator, for violation of their privacy.
Some state laws may set out a fine for privacy rights violations. If no state law establishes a fine, a judge or jury may find the liability and set damages for the breach of privacy. Regardless of the facts set forth in your question, in the future you must take better steps to protect your residents’ privacy.
Always get a resident’s permission to use their likeness. For example, if the images were used in your advertising (such as brochures or TV ads), your liability would be more certain for breach of privacy and your damages could be great.
From the December 2019 Issue of McKnight's Long-Term Care News
