A Virtual 'Puppet'': Performance and Privacy in the Digital Age

AuthorMegan Richardson
PositionProfessor of Law and Joint Director, Centre for Media & Communications Law, The University of Melbourne
A Virtual ‘Puppet’”: Performance and
Privacy in the Digital Age
Megan Richardson*
e recent case of Garcia v Google identies a central problem of the internet world as
we know it — that speech may be freer and more powerful than before and opportunities
for creative expression radically extended but individuals may lose control over what
happens to their images and other distinctive features, challenging assumptions about
their identity. In the discussion below, it is argued that the time has come to move
beyond relying on the language of “privacy” and if the idea is to allow individuals to
maintain control over the formulation of personal identity in the digital age, then laws
should be framed around that.
* Professor of Law and Joint Director, Centre for Media &
Communications Law, e University of Melbourne.
Richardson, “A Virtual ‘Puppet’”
I. I
II. N P
III. R I
IV. T  R  I
V. C
I. Introduction
curious moment in the case of Garcia v Google Inc. was the passing
comment of Judge Margaret McKeown that “[p]rivacy laws,
not copyright, may of‌fer remedies tailored to Garcia’s personal and
reputational harms”.1 My initial reaction was to wonder what privacy
interests were at stake in this case of Innocence of Muslims whose
trailer aired on YouTube in 2012, fomenting outrage across the Muslim
world, violent protests in the Middle East and parts of Asia (where it
was blocked)2 and Australia (where it was not),3 and a fatwa issued from
an Egyptian cleric against those associated with the f‌ilm including its
performers.4 Cindy Lee Garcia’s complaint before the 9th Circuit was
that she was deceived into thinking that the f‌ilm, originally titled Desert
1. Garcia v Google, Inc., 786 F (3d) 733 at 745 (9th Cir 2015) (en banc)
(US) [Garcia v Google].
2. See Jeremy Bowen, “Anti-Islam Film: ousands Protest around Muslim
World” BBC News (17 September 2012), online: BBC .bbc.com/
3. As it Happened: Violence Erupts in Sydney over Anti-Islam Film” ABC
News (16 September 2012), online: ABC
4. See Andrew Blankstein & Ned Parker, “Police Probe reats, Fatwa
against “Innocence of Muslims” ActorsLos Angeles Times (21 September
2012), online: LA Times
(adding “[w]hether anyone will abide by them is another matter. Senior
mainstream Sunni clerics have urged restraint in regard to the f‌ilm”).
(2018) 4 CJCCL
Warrior, was to be an historical Arabian Desert adventure f‌ilm.5 Instead,
during post-production it was turned into an anti-Islamic polemic,
with her lines overdubbed to express the director’s “hateful” “bigoted”
views, using her as a virtual “puppet” in a manner repugnant to her
character as someone who would “never debase another person’s religious
beliefs”.6 Further, the instrumentalities of the f‌ilm’s notoriety, Google
and YouTube, refused to take it down despite her many requests relying
on the Digital Millennium Copyright Act.7 As a result of these acts and
refusals, Garcia claimed, she suf‌fered emotional distress, the destruction
of her career and reputation and credible death threats.8 It seems that,
at this point of the proceedings, copyright not privacy was Garcia’s legal
concern. Yet for fairly obvious reasons to do with the fact that copyright
law protects authors not performers, that claim failed,9 leaving Garcia
with no legal claim — subject to the puzzling hint above that had she
pursued an alternative claim in privacy she might yet have prevailed. And
I am still puzzled. Yes, there are a number of scenarios where privacy laws
5. She was not the only one. Other actors also maintained that they were
duped by Nakoula into thinking the f‌ilm was an incompetent amateur
adventure story although admittedly they did not look too closely. See
Michael Joseph Gross, “Disaster MovieVanity Fair (27 December 2012),
online: Vanity Fair e/2012/12/making-of-
6. See Garcia’s Complaint in Cindy Lee Garcia v Nakoula Basseley Nakoula, et
al, 2012 WL 4426549 at paras 4, 8–9, 29 (CD Cal 2012) (US) [Garcia’s
Complaint, CD Cal].
7. 112 Stat 2860 (US).
8. Garcia’s Complaint, CD Cal, supra note 6 at para 38; Garcia v Google,
supra note 1 at 745.
9. Garcia v Google, ibid at 742–745. For a thorough analysis of the dif‌ferent
stages of the case, including an earlier judgment for Garcia given by
Judge Kozinski in the 9th Circuit in Garcia v Google, Inc 766 F (3d) 929
(9th Cir 2014) (US), overturned by the en banc Court (Judge Kozinski
dissenting), see Elizabeth Martin, “Using Copyright to Remove Content:
An Analysis of Garcia v Google” (2016) 26:2 Fordham Intellectual
Property, Media and Entertainment Law Journal 464. Documents for
the case are available at Santa Clara Law Digital Commons, online: SCU
Richardson, “A Virtual ‘Puppet’”
rather than copyright might be the preferable basis for a claim, especially
if copyright is restricted to protecting and fostering authored creative
expression as the 9th Circuit posited in Garcia’s case,10 echoing an
argument of Samuel Warren and Louis Brandeis in 1890.11 And we can
debate whether, nevertheless, if privacy law fails to provide an ef‌fective
remedy in such cases, copyright and other claims may be drawn on to f‌ill
the gap.12 But what was the “digital circuit”13 signalling with its suggestion
that privacy should frame the response to the essential problem that
Garcia identif‌ied in her case? e problem of individuals caught up as
“puppets” in f‌ictionalised worlds created and fostered by others working
behind the scenes and pursuing their own ends — the internet world as
we know it, where speech may be freer and more powerful than before and
opportunities for creative expression radically extended but individuals
may lose control over what happens to their images and other distinctive
features, challenging assumptions about their identity? In the discussion
below, I argue that the time has come to move beyond relying on the
nebulous language of “privacy” and if the idea is to allow individuals to
10. Garcia v Google, ibid at 745. See further the Hon Margaret McKeown,
“Censorship in the Guise of Authorship: Harmonizing Copyright and
the First Amendment” (2016) 15:1 Chicago Kent Journal of Intellectual
Property 1.
11. Samuel Warren & Louis Brandeis, “e Right to Privacy” (1890) 4:5
Harvard Law Review 193 at 205.
12. See, for instance, Margaret Chon, “Copyright’s Other Functions”
(2016) 15:2 Chicago Kent Journal of Intellectual Property 364 (giving
the particular example of “cyber-harassment [using] non-consensual
pornography” at 366). In fact remedies may not be limited to copyright
to deal with such cases. See Federal Trade Commission, Press Release,
“Website Operator Banned from the ‘Revenge Porn’ Business After FTC
Charges He Unfairly Posted Nude Photos” (29 January 2015), online:
FTC ebsite-operator-
banned-revenge-porn-business-after-ftc-charges>; and Danielle Citron &
Woodrow Hartzog, “e Decision at Could Finally Kill the Revenge-
Porn Business” e Atlantic (2 February 2015), online: e Atlantic
13. e label adopted by the Hon McKeown, supra note 10 at 1.
(2018) 4 CJCCL
maintain control over the formulation of personal identity in the digital
age, then laws should be framed around that.
II. Nebulous Privacy
Even a superf‌icial examination of Garcia’s privacy claims in her earlier
proceeding before the Superior Court of the State of California, later
to be superseded by her federal proceeding, shows the challenges of
claiming privacy in a case such as this.14 Garcia claimed invasion of her
constitutional right to privacy under the California Constitution,15 again
using the imagery of “a virtual ‘puppet’” to object to Nakoula Basseley
Nakoula’s treatment of her as an “egregious breach of social norms”,16
and false light invasion of privacy under California law;17 namely, that
“Defendants, through the above described Film and their actions in
publishing it, including the contents that falsely purported to depict
Plaintif‌f saying bigoted things that she did not say, gave publicity to
matters concerning Plaintif‌f that unreasonably places her in a false light
and violates her right to privacy”.18 Yet these claims, along with claims
for fraud, unfair business practices, right of publicity, defamation and
intentional inf‌liction of emotional distress were discontinued after the
Superior Court dismissed the application for a preliminary injunction
14. Complaint of Cindy Lee Garcia in Cindy Lee Garcia v Nakoula Basseley
Nakoula, et al, Case No BC 492358, f‌iled Superior Court, County of Los
Angeles, State of California, September 19, 2012 [Garcia’s Complaint,
Sup Ct].
15. Although query whether the Constitution could in itself provide the basis
for a claim as opposed to lending constitutional support and weight to a
claim, as in Melvin v Reid, 112 Cal App 285 (Ct App 1931) (US), where
the Constitutional right to privacy was said to support the plaintif‌f’s
common law tort claim of the defendant’s public disclosure of private
facts when it identif‌ied her as the subject of its f‌ilm biopic about her
former life as a prostitute swept up in a murder trial.
16. Garcia’s Complaint, Sup Ct, supra note 14 at paras 24, 26.
17. See William Prosser, “Privacy” (1960) 48:3 California Law Review 383 at
398–491, identifying false light as the third of four torts developing in the
wake of Warren & Brandeis’s article, Warren & Brandeis, supra note 11,
recognised in states including California.
18. Garcia’s Complaint, Sup Ct, supra note 14 at para 30.
Richardson, “A Virtual ‘Puppet’”
on the basis that “Plaintif‌f has not shown a likelihood of success on the
merits”.19 Presumably this was because she was unable to demonstrate
that the absent Nakoula had acted falsely and with “actual malice”, that
is with knowledge of falsity or reckless disregard of truth or falsity,20 her
Constitutional burden in this case of a newsworthy publication according
to the Supreme Court in Time, Inc v Hill.21 Moreover, given she was
applying for a mandatory injunction, a prior restraint, asking “that the
of‌fending content be removed from the Internet”,22 her burden was
especially high. We can imagine the Superior Court at this preliminary
stage thinking there might have been a variety of possible exonerations
of Nakoula’s conduct, including that Garcia had signed the usual release
19. See Cindy Lee Garcia v Nakoula Basseley Nakoula, et al, Case No BC
492358, f‌iled Superior Court, County of Los Angeles, State of California,
September 19, 2012 [Minutes of Garcia’s Complaint, Sup Ct], specif‌ically
Judge Luis A Lavin, minutes entered 20 September 2012.
20. Garcia unsuccessfully sought to argue “actual malice” in these terms in her
Complaint. See Garcia’s Complaint, Sup Ct, supra note 14 at para 36.
21. Time, Inc v Hill, 385 US 374 (1967) [Time, Inc], another false light
claim where the plaintif‌f argued that the defendant’s theatre review of
a Broadway play misrepresented the play’s f‌ictionalised account of a
home invasion as the actual home invasion which the plaintif‌f and his
family had suf‌fered. Also see Andrew T Kenyon & Megan Richardson,
“Reverberations of Sullivan” in Andrew T Kenyon, ed, Comparative
Defamation and Privacy Law (Cambridge: Cambridge University Press,
2016) ch 16.
22. Garcia’s Complaint, Sup Ct, supra note 14 at para 11.
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form that performers signed for f‌ilms,23 or impliedly consented to his
post-production editing through her participation in the f‌ilm (as the
District Court later held in her federal case,24 a f‌inding that the 9th
Circuit was reluctant to disturb as “clearly erroneous”, notwithstanding
its conclusion that she was “bamboozled”).25 us, even apart from the
problem that Google/YouTube were immunised from liability under
Section 230 of the Communications Decency Act26 (“CDA”), as Rebecca
Tushnet points out,27 her prospects of success under her State law privacy
claims seemed to be weak at best.
As such, Judge McKeon’s suggestion that privacy laws might have
been a better avenue to give Garcia a viable claim to address her “personal
23. As Nakoula later argued in the federal proceedings: see Declaration of
Timothy L Alger for Google and YouTube, Garcia v Google, supra note
1. e Release appended specif‌ically grants to “Sam Bessi” and his
production entity the right to photograph and record Ms. Garcia, releases
all claims including for invasion of privacy, right of publicity or other civil
rights in connection with the authorized use of her likeness and sound
in the f‌ilm and assigns the rights necessary to make the f‌ilm (including
any relevant copyright, performance right or right of publicity). See also
Nakoula’s Answer, f‌iled on 20 May 2014, Garcia v Google, supra note 1 at
1–2, which alleges not only that Garcia signed the Release but states that
the words spoken by her character in Innocence of Muslims “came from her
voice and were never changed”, adding that “any NON-UNION actress
such as the Plaintif‌f knows that any movie they participate in represents
the opinions or knowledge of the writers and Producers, not the actors”.
Garcia nevertheless disputed the authenticity of the document with the
support of a handwriting expert: See Declaration of James A Blanco
(handwriting expert), f‌iled 30 November 2012, Garcia v Google, supra
note 1.
24. See Order of Judge Michael W Fitzgerald that denies Plaintif‌f Garcia’s
Motion for Preliminary Injunction in Cindy Lee Garcia v Nakoula Basseley
Nakoula, et al, 2012 WL 12878355 (CD Cal 2012) (US) [2012 Order
Denying Garcia’s Motion].
25. Garcia v Google, supra note 1 at 736, 737, 743 (incongruously f‌inding that
Garcia was “bamboozled” and lines were “dubbed”, yet the District Court
was not clearly erroneous in f‌inding she impliedly consented).
26. 47 USC tit V § 230.
27. Rebecca Tushnet, “Fair Use’s Unf‌inished Business” (2016) 15:2 Chicago
Kent Intellectual Property 399.
Richardson, “A Virtual ‘Puppet’”
and reputational harms” than copyright is rather surprising. Nevertheless
the question whether privacy is the appropriate organising principle and
theoretical foundation of a false light claim,28 of‌fering a powerful argument
based on dual ideas of human dignity and individual f‌lourishing as core
principles of a liberal society,29 is still worth considering. So, was Garcia v
Google even a case about privacy? If I take as the core concern of privacy
the desire to be “let alone”, as Warren and Brandeis put it in 1890,30 or
not to be subjected to the “public gaze” as Lisa Austin explains,31 then I
would say no. Further, stretching the meaning of privacy to cover Garcia’s
situation, treating privacy in a “pluralist manner from the bottom up”, as
Daniel Solove for instance argues, 32 would only undermine this important
idea. e dif‌f‌iculty is not that Garcia is a performer and lives much of
her life in the public gaze. For even performers and those who live much
of their lives in the public gaze can benef‌it from periods “backstage” in
28. See Melville Nimmer, “e Right to Speak from Times to Time: First
Amendment eory Applied to Libel and Misapplied to Privacy” (1968)
56:4 California Law Review 935; Cf. Dianne Zimmerman, “False
Light Invasion of Privacy: e Light that Failed” (1989) 64:2 New
York University Law Review 364 (although doubting that the claim has
anything to do with privacy).
29. Warren & Brandeis, supra note 11, talk about both dignity and
f‌lourishing: the right to privacy a right of “inviolate personality” at 205;
development of an “intense intellectual and emotional life” the product of
“the advance of civilisation” which law must respond to, at 195, although
the f‌irst is more prominent. See also Edward J Bloustein, “Privacy as an
Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39:6 New
York University Law Review 962; Nimmer, ibid at 959.
30. Warren & Brandeis, supra note 11 at 195; see also 196 (as opposed to
“intrusion upon the domestic circle”).
31. Lisa Austin, “Privacy and the Question of Technology” (2003) 22:2 Law
& Philosophy 119.
32. Daniel Solove, Understanding Privacy (Cambridge, MA: Harvard
University Press, 2008), proposing a pluralist theory of privacy in these
terms at 40; and treating false light as falling within a privacy taxonomy
“because of its signif‌icant similarity to other privacy disruptions”,
involving “the spreading of information that af‌fects the way society views
a person” and resulting in “embarrassment, humiliation, stigma, and
reputational harm” at 160.
(2018) 4 CJCCL
order to relax with close associates, prepare for the “putting on and taking
of‌f of character”, engage in informal and intimate conduct, and f‌ind
opportunities for ref‌lection as well as support from peers, as Canadian
sociologist Erving Gof‌fman pointed out in his study on e Presentation
of the Self in Everyday Life some sixty years ago.33 And those of us who
f‌ind that being onstage is a near-constant feature of modern internet life
can draw a similar conclusion about the importance of privacy. Yet Garcia
showed no sign of this being her desire in this particular instance. Rather,
her objection to being used as a “virtual puppet” seemed to have more
to do with another common human desire talked about by Gof‌fman,
namely that of maintaining control over the “frontstage” performances in
dif‌ferent aspects of one’s everyday life.34 As such, it is hard to see this as a
false light right to privacy claim (although such arguments may be more
feasible in some other false light cases, such as Time, Inc v Hill where the
claimed false light publicity concerned matters that were private family
matters which the plaintif‌f would rather not have seen aired in public).35
III. Reputation Insucient
On the other hand, query whether reputation is necessarily a preferable
organising principle as some, including William Prosser, have argued.36
Yet perhaps it comes closer than privacy in many cases. It has the benef‌icial
33. Erving Gof‌fman, e Presentation of Self in Everyday Life (Garden City:
Anchor Books, 1959) ch 3 at 120–130, passim [Gof‌fman, Presentation of
34. See ibid, ch 1, where Gof‌fman talks about the challenges of impression
management, the need to negotiate dif‌ferent roles, the dif‌f‌iculty of
maintaining expressive control, and the risks of being caught out.
35. As Nimmer argues, supra note 28 at 962–66 (although Zimmerman
doubts this, supra note 28 at 432–34). See similarly, regarding the UK’s
tort of misuse of private information, McKennitt v Ash, [2006] EWCA
Civ 1714, Longmore LJ (“[t]he question in a case of misuse of private
information is whether the information is private not whether it is true or
false” at 86).
36. Prosser, supra note 17 (“the interest protected is clearly that of reputation”
at 400).
Richardson, “A Virtual ‘Puppet’”
feature of being concerned with the frontstage aspect of a performance.37
And as Justice Stewart said in Rosenblatt v Baer, “the right of a man to the
protection of his own reputation from unjustif‌ied invasion and wrongful
hurt ref‌lects no more than the basic concept of the essential dignity and
worth of every human being — a concept at the root of any decent system
of ordered liberty”.38 us, while I might dispute whether the false light
tort can be wholly equated the protection of reputation in every case (for
instance, recall the Time, Inc v Hill case noted above), the concerns may
be more along these lines in some cases. Was this the case for Garcia who
in her false light claim talked of “being shunned, avoided and subjected
to ridicule”, resulting in “signif‌icant damage to her reputation and to
her livelihood”, harms usually associated with defamation and repeated
in her defamation claim?39 e 9th Circuit at one point suggested that
defamation law might equally be an appropriate claim to address Garcia’s
“personal and reputational harms”.40 Not that her prospects of a remedy
were greater with defamation, given the “actual malice” standard equally
applies,41 prior restraints are equally resisted, and Section 230 of the CDA
extends to such claims (and recall that Garcia’s defamation claim was
dismissed by the Superior Court along with her privacy claims; moreover,
she suf‌fered the same result in the District court where a defamation
37. See Warren & Brandeis, supra note 11 at 197. Warren and Brandeis
distinguish reputation from privacy, identifying this as essentially
concerning “the individual in his external relations to the community, by
lowering him in the estimation of his fellows” (as opposed to “intrusion
upon the domestic circle” which is they identify as a core concern of
privacy as a right to be “let alone”).
38. Rosenblatt v Baer, 383 US 75 at 92 (1966) [Rosenblatt].
39. Garcia’s Complaint, Sup Ct, supra note 14 at paras 30, 33, 34, 69, 76.
40. Garcia v Google, supra note 1 at 741, 745.
41. Indeed, the Court in Time, Inc, supra note 21, in setting out an “actual
malice” test followed the path being established for defamation in New
York Times Co v Sullivan, 376 US 254 (1964) (where the standard was
applied to public of‌f‌icials); Curtis Publishing Co v Butts, 388 US 130
(1967); Associated Press v Walker, 389 US 28 (1967); Gertz v Robert Welch,
Inc, 418 US 323 (1974) (where the standard was extended to public
f‌igures). See Kenyon & Richardson, supra note 21.
(2018) 4 CJCCL
claim was added to her copyright claim).42 But there is a suggestion here
that defamation and false light may be rather alike in their treatment
of reputational harms, although from Garcia’s perspective there seemed
to be some dif‌ferences. Her false light claim focussed more on personal
harms and invoking the moral standard that the conduct was “highly
of‌fensive to a reasonable person”.43
Of course it may still be argued that such personal harms can be
brought within the rubric of a defamation claim broadly construed
and generously applied. And in common law jurisdictions such as the
United Kingdom, Australia, and Canada which do not recognise a
false light tort, a distinctly American invention, a claimant in Garcia’s
position would probably rely on defamation to address her personal and
reputational harms44 (possibly supplementing this with reference to the
right to reputation under the European Convention on Human Rights45 in
42. See Minutes of Garcia’s Complaint, Sup Ct, supra note 19; 2012 Order
Denying Garcia’s Motion, supra note 24.
43. See Garcia’s Complaint, Sup Ct, supra note 14 at para 31 (“[t]he false
light in which Plaintif‌f was placed would be highly of‌fensive to a
reasonable person”), and para 33 (“[p]laintif‌f has suf‌fered and will suf‌fer
emotional distress, and has been, and continues to be, embarrassed and
humiliated by the false statements and implications, [and] terrorized by
the death threats that she has received as a result of the false light in which
she has been placed...”).
44. See Youssoupof‌f v Metro-Goldwyn-Mayer Pictures Ltd (1934), 50 TLR 581
(CA (Eng)) (substantial damages awarded to plaintif‌f Princess Youssopov
who claimed defamation in her portrayal as a f‌ictional character in the
f‌ilm Rasputin, the Mad Monk); Kidu v Fifer, [2016] NSWSC 488 (Austl)
[Kidu, 2016] (granting an interlocutory injunction against defendant
f‌ilmmaker showing certain extracts from her f‌ilm at a Canadian festival
after the subject who signed a release then purported to withdraw it),
although the plaintif‌f’s version of the facts of the parties’ agreement was
successfully disputed and the injunction discharged in Kidu, 2016.
45. Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, 213 UNTS 221 (entered into force 3 September
1953) [ECHR].
Richardson, “A Virtual ‘Puppet’”
the UK).46 Further, given that reasonableness rather than “actual malice”
is the touchstone of analysis in these jurisdictions,47 the claim might
well succeed. Indeed, an injunction might be awarded, based on recent
experience of an injunction granted in the Irish internet defamation case
of McKeoh v John Doe where the plaintif‌f was falsely identif‌ied as a taxi
fare evader and subjected to public condemnation, after an attempt on
the part of the court to broker a voluntary arrangement with Google and
Facebook to take appropriate steps failed.48 us it may be said that the
right to reputation is better recognised in these jurisdictions than in the
US, providing an ef‌fective vehicle to deal with false light-type claims in
cases where a privacy claim is unavailing.49 Nevertheless, the point remains
that an exclusive focus on reputation where privacy is unavailing risks
understating the personal dimension of a false light claim — that while
“reputation” may be understood broadly as “the estimation by which the
community holds a person”,50 or “the social apprehension that we have
of each other” as Robert Post puts it,51 focussing just on the way that a
person is judged by their community risks fails to appreciate Gof‌fman’s
point that multiple dif‌fuse aspects may contribute to a performer’s success
(or failure) in projecting an identity, or “self”, including the way that “the
46. See Tanya Aplin & Jason Bosland, “e Uncertain Landscape of Article
8 of the ECHR: e Protection of Reputation as a Fundamental Human
Right?” in Kenyon, supra note 21, ch 13.
47. See, for instance, Jack Monroe v Katie Hopkins, [2017] EWHC 433 (QB)
(allegation by defendant right-wing blogger that plaintif‌f left-wing blogger
had vandalised a war memorial); Rebel Wilson v Bauer Media, [2017] VSC
521 (Austl) (allegation in Women’s Day based on email correspondence
with anonymous source that plaintif‌f actor was a serial liar); Baglow v
Smith, 2015 ONSC 1175 (“more vocal supporters” although there treated
as “fair comment” on the basis they were statements of opinion not fact).
48. Eoin McKeogh v John Doe, [2012] IEHC 95 (HC (I)), specif‌ically decision
of Peart J on Interlocutory Injunction application.
49. Although this is not to say that a privacy claim would not be viable in
some cases, see Rosenblatt, supra note 38.
50. See Aplin & Bosland, supra note 46 at 268.
51. Robert C Post, “e Social Foundations of Defamation Law: Reputation
and the Constitution” (1986) 74:3 California Law Review 691 at 692.
(2018) 4 CJCCL
individual … handle[s] things during his presence among others”.52 Here
having a strong sense of identity may count for more than reputation.
IV. Towards a Right to Identity
us my argument is that we should consider a right to identity as an
appropriate frame for false light cases in the internet world where so much
more is social than before. A focus on identity would take us beyond
considerations of reputation and also privacy in assessing the harms
suf‌fered by a person in a false light case, even appreciating that reputation
and privacy may be relevant as well and may sometimes coincide (for
instance, where a person is af‌fected in their private self by the judgments
of others). It would allow us to consider what Jeremy Waldron refers to
as a “concern for the ordinary dignity of an individual focus[ed] on the
ways his or her status is af‌f‌irmed and upheld — and the ways in which it
might be endangered — as one person among thousands or millions of
52. Ibid, citing Erving Gof‌fman, Interaction Ritual (Garden City: Anchor
Books, 1967) [Gof‌fman, Interaction Ritual] talking about a person’s
“projected … identity” or “self” (or “selves”) as a product of various things
including reputation (the way that a person may be remembered and
judged from the past), social role and status, and more particular factors
such as setting, audience and (most signif‌icantly here) the ways that “the
individual … handle[s] things during his presence among others” at
107–108, 168.
Richardson, “A Virtual ‘Puppet’”
others”,53 and having to do with the person’s capacity to engage ef‌fectively
in public discourses and contribute to the formulation of a diverse multi-
vocal community.54 As Waldron puts it, there is “a sort of public good
of inclusiveness that our society sponsors and that it is committed to”55
— using language reminiscent of Gof‌fman’s earlier observation that in
“urban secular living”, the individual “walks with some dignity”, aware of
his “status” relative to those of others and “f‌inding that they must treat
him with ritual care”, but now adapting this idea to suit a modern virtual
setting where “status” is a more f‌luid thing than previously imagined and
a person’s ability to maintain their identity is key.56 is sentiment comes
through in Garcia’s complaint that her identity as an individual who
53. Jeremy Waldron, e Harm in Hate Speech (Cambridge, MA: Harvard
University Press, 2012) at 142 [Waldron, Harm in Hate Speech] in Jeremy
Waldron, “How Law Protects Dignity” (2012) 71:1 Cambridge Law
Journal 200 at 202 [Waldron, “How Law Protects Dignity”], Waldron
expands on the concept he is putting forward here of a dignitarian “status”
as “predicated on the fact that [the person] is recognised as having the
ability to control and regulate her actions in accordance with her own
apprehensions of norms and reasons that apply to her; it assumes that
she is capable of giving and entitled to give an account of herself (and of
the way in which she is regulating her actions and organising her life), an
account that others are to pay attention to; and it means f‌inally that she
has the wherewithal to demand that her agency and her presence among
us as a human being be taken seriously and accommodated in the lives
of others, in others’ attitudes and actions towards her, and in social life
generally”. See also Jeremy Waldron, “Lecture 2: Law, Dignity, and Self-
Control” in Jeremy Waldron, Dignity, Rank, and Rights (Oxford: Oxford
University Press, 2012).
54. See especially Waldron’s discussion in e Harm in Hate Speech, ibid
at 4–5, 58–60, talking about hate speech. Waldron’s terms this group
defamation but I think it goes beyond defamation designed simply to
protect reputation.
55. Ibid at 4.
56. Gof‌fman, Interaction Ritual, supra note 52 at 95. Generally in a more
traditional way Gof‌fman connects status more with a person’s position
in society, e.g. a person of higher or lower status — but in this quoted
comment he hints at a more f‌lexible evolving idea of social status more
reminiscent of Waldron’s.
(2018) 4 CJCCL
would “never debase another person’s religious beliefs” was being radically
impugned by Nakoula’s egregious breach of social norms, combined
with the unwanted notoriety conferred by Google/YouTube’s worldwide
publication.57 As such, we have a powerful argument against the argued
rights of those such as Nakoula, Google and YouTube to engage in free
speech without restraint,58 based on an individual’s ability to express
herself freely on her own terms, participate in public discussions and
democratic processes, and even possibly avoid violence and maintain
truth in an environment in which she is accurately represented.59
I appreciate that this reasoning would represent a shift beyond
Warren and Brandeis’s advocacy of a right to be “let alone” as but one
aspect of what they called “inviolate personality”,60 coming closer to a
right in inviolate personality. But then the false light tort already takes us
beyond the right to privacy, as Prosser points out.61 I believe it would also
take us further than a right to reputation, although this is also important,
and may be almost enough in a case such as Garcia’s. If anything, it
comes closest to the right of publicity which is sometimes couched as a
57. See Garcia’s Complaint, CD Cal, supra note 6; Garcia’s Complaint, Sup
Ct, supra note 14.
58. See Nimmer, supra note 28 at 949–950, summarising the values of free
speech as elucidation of truth, democratic participation, self-expression
and aversion of violence, citing, inter alia, Justice Brandeis in Whitney
v California, 274 US 357 at 375–377 (1927). Although query whether
violence was averted by publication of Innocence of Muslims.
59. Including the prospect of violence against Garcia. Note, however,
the argument of Judge Watford in Garcia v Google that “[t]he sad but
unfortunate truth is that the threat posed to Garcia by issuance of the
fatwa will remain whether e Innocence of Muslims is available on
YouTube or not. Garcia is subject to the fatwa because of her role in
making the f‌ilm, not because the f‌ilm is available on YouTube”: Garcia v
Google, supra note 1 at 748. But perhaps a dif‌ferent kind of injunction,
such as a public disclaimer of association available on YouTube, might be
more ef‌fective here.
60. See Warren & Brandeis, supra note 11 at 205.
61. See Prosser, supra note 17.
Richardson, “A Virtual ‘Puppet’”
way of protecting a person’s “identity” from commercial appropriation.62
But I am not suggesting that false light amounts to a full appropriation
of identity, in the sense of taking over a persons identity.63 Rather, I
am simply arguing that the law here should of‌fer protection from an
unjustif‌iable attack on a person’s identity, specif‌ically her perception of
herself as someone who has the “ability to control and regulate her actions
in accordance with her own apprehensions of norms and reasons that
apply to her”, as Waldron puts it.64 Nor am I going as far as to advocate
a European-style right to control the use of personal information, a right
also based on an idea of a right to personality which transcends privacy
and reputation and may go signif‌icantly further,65 appealing as that may
be in the internet environment where control over personal information
may be key to a person’s capacity to maintain an independent dignif‌ied
existence.66 For present purposes, I am merely making a limited argument
that the false light invasion of privacy tort would be better framed as a
tort not just about privacy but as also covering reputational and identity
62. See, for instance, Garcia’s Complaint, Sup Ct, supra note 14 (“California’s
Right of Publicity Statute, California Civil Code § 3344 et seq, protects
persons from the unauthorized appropriation of the person’s identity by
another for commercial gain” at para 38). Note also as to the common law
right of publicity, Midler v Ford Motor Co, 849 F 2d 460, 462 (9th Cir
1988) (US) (“California will recognize an injury from ‘an appropriation
of the attributes of one’s identity’”, citing Motschenbacher v RJ Reynolds
Tobacco Co, 498 F 2d 821 (9th Cir 1974) (US)).
63. Query whether the right of publicity, being conf‌ined generally to publicity
in advertising or trade (as, for instance, under Cal Civ Code § 3344
(US)) should extend to the posting of a f‌ilm on YouTube, despite Garcia’s
argument that a commercial or other purpose should suf‌f‌ice.
64. See Waldron, “How Law Protects Dignity”, supra note 53.
65. As well as providing more ef‌fective protection to these rights in some
instances where other laws may fall short: for instance, regarding the right
to reputation under the ECHR, supra note 45, see David Erdos, “Data
Protection and the Right to Reputation: Filling the “Gaps” After the
Defamation Act 2013” (2014) 73:1 Cambridge Law Journal 536.
66. See Stefano Rodotà, “Data Protection as a Fundamental Right” in Serge
Gutwirth, Yves Poullet, Paul De Hert, Cécile de Terwangne & Sjaak
Nouwt, eds, Reinventing Data Protection? (Amsterdam: Springer, 2009) ch
(2018) 4 CJCCL
harms in ways that egregiously breach social norms about what can
and what cannot be deemed to be acceptable within the boundaries
of free speech.67 As such, I believe the tort would not only provide a
more appropriate model for dealing with cases such as Garcia’s where the
essential complaint was the way she was represented publicly, using her
as “a puppet”, in a manner repugnant to her self-proclaimed identity as
someone who would “never debase another person’s religious beliefs”.68 It
would also provide a useful model for courts in other jurisdictions which
from time to time look to US legal innovations in refashioning their laws
to better address and deal with the exigencies of modern life.
V. Conclusion
I have argued in this essay that a false light invasion of privacy tort
conceived as a way of protecting identity makes the best sense of Garcia’s
claim in her case against Nakoula, focussing us more sharply on what
Garcia alleged to be Nakoula’s extreme wrongful conduct in changing the
innocent and banal message of Desert Warrior and overdubbing the lines
of her character to give it a darker and more dubious role in Innocence
of Muslims, exemplif‌ied by her repeated complaint that he had treated
her as his “puppet”, or “virtual puppet”, in “an egregious breach of social
norms”. Perhaps it is no accident that a f‌ilmmaker especially would
conceive of a character as potentially subject to his dominion and control,
and that a performer especially would notice and object to being treated
as a puppet? Performance may be a metaphor for the presentation of the
self in everyday life, as Gof‌fman has said.69 But as Garcia’s case shows,
67. Bearing in mind that the standards of “actual malice”, resistance to
prior restraints, and s 230 of the Communications Decency Act, 47 USC
§ 230 (1996) would apply and would likely be suf‌f‌icient to rule out
the injunction sought by Garcia, see Garcia’s Complaint, Sup Ct, supra
note 14. Whether that would preclude a more limited injunction, e.g.
disclaiming her endorsement of Nakoula’s views, is another question.
68. See Garcia’s Complaint, CD Cal, supra note 6; Garcia’s Complaint, Sup
Ct, supra note 14.
69. See Gof‌fman, Presentation of Self, supra note 33 at 254 (my concern is “the
structure of social encounters”).
Richardson, “A Virtual ‘Puppet’”
in the expansive theatre of the internet performance and life can easily
become blended — and one useful contribution we f‌ind in this case is a
vocabulary to talk about some of the problems, or as Gof‌fman puts it, “an
apt terminology for the interactional tasks that all of us share”.70
e theatrical terminology also helps us to think about the role
assumed by Google and YouTube in all this. In cases such as Garcia’s they
like to present themselves as merely passive conduits in a production
being staged and performed by others for the benef‌it of an audience,
no more than the bricks and mortar of the physical theatre. is is a
useful technique in bringing themselves within the terms of Section 230
of the CDA which has repeatedly been justif‌ied as a bulwark of freedom
of speech. And if the value of free speech includes preserving “unpopular
speech”, as Judge McKeown has said with respect to Garcia v Google,71 then
perhaps restraints should not readily be imposed based on the quality of
speech. On the other hand, so long as we maintain the position that free
speech is justif‌ied by values such as individual f‌lourishing, democratic
participation, aversion of violence and truth coming out of the market
place of ideas, then at very least there needs to be fresh consideration
of how those values work in practice. For instance, whether freedom of
speech for some people becomes a way of disrupting attempts of other
people to fashion their identities, participate in public discussions and
democratic processes, avoid violence and maintain truth. Or is it that
free speech values are changing? Google/YouTube’s policy of publishing
everything sometimes makes me wonder whether we are moving into a
world where the value of free speech is just free speech. A world of “e
Library of Babel”, to adopt another metaphor from another sociologist
of the post-war period: a world whose disorder repeated over eternity
eventually becomes “the Order”.72
70. Ibid at 255.
71. Hon McKeown, supra note 10 at 16.
72. Jorge Luis Borges, “e Library of Babel” (f‌irst published as ‘La biblioteca
de Babel’ in El jardín de senderos que se bifurcan. Sur, 1941), translated by
James E Irby, Labarynths (London: Penguin, 2011) at 78, 86.

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