MBE - Invasion of Privacy

1. Misappropriation of the Right to Publicity

A majority of states recognize an action for the misappropriation of the right to publicity, which is based on the right of an individual to control the commercial use of his identity. The plaintiff must prove: i) The defendant's unauthorized appropriation of the plaintiff's name, likeness, or identity (Most often, commercial appropriation cases involve the use of the plaintiff's name or picture, but this is not required. A television or radio production might mimic the plaintiff's distinctive vocal patterns. Also, an action may be maintained when the defendant uses other items closely associated with the plaintiff, such as a specially designed car with unique markings associated with a racecar driver.); ii) For the defendant's advantage, commercial or otherwise; iii) Lack of consent; and iv) Resulting injury. The states are split as to whether this right survives the death of the individual, with some states treating it as a property right that can be devised and inherited.

b. Consent

Consent is a defense to invasion of privacy actions. Mistake as to consent negates this defense, no matter how reasonable the mistake. EXAM NOTE: Remember that truth generally is not a defense to invasion of privacy, whereas it is a complete defense to defamation.

2. Intrusion Upon Seclusion

The defendant's act of intruding, physically or otherwise, into the plaintiff's private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability. Eavesdropping on private conversations by electronic devices is considered an unreasonable intrusion. Photographing a person in a public place generally is not, unless the photograph is taken in a manner that reveals information about the person that the person expects to keep private even in a public place. Unlike the other forms of invasion of privacy, no publication is required to establish liability.

"Publicity"

The information must be communicated at large or to so many people that it is substantially certain to become one of public knowledge.

Damages

The plaintiff need not prove special damages for any of the invasion of privacy torts. Emotional distress and mental distress are sufficient.

Disclosure of dated material

The public disclosure of even dated material—for example, a criminal conviction from decades ago—is a matter of public interest and therefore does not create liability.

B. Invasion of Privacy

The right of privacy does not extend to corporations, only to individuals. Additionally, because the right of privacy is a personal right, in most instances, this right terminates upon the death of the plaintiff and does not extend to family members. Invasion of privacy is not a single tort but includes four separate causes of action. MNEMONIC: I FLAP (Intrusion, False Light, Appropriation, Private facts) 1. Misappropriation of the Right to Publicity 2. Intrusion Upon Seclusion 3. Placing the Plaintiff in a False Light 4. Public Disclosure of Private Facts 5. Damages 6. Defenses

Disfavored tort

Because the public disclosure tort involves the dissemination of true facts, it clearly is in tension with the First Amendment's freedoms of speech and the press. Accordingly, the tort is disfavored in the modern era.

6. Defenses

a. Defamation defenses b. Consent

3. Placing the Plaintiff in a False Light

π must prove that ∆ (i) made public facts about the plaintiff that (ii) placed the plaintiff in a false light, (iii) which false light would be highly offensive to a reasonable person. Most jurisdictions require that the plaintiff prove actual malice by the defendant. This may be constitutionally required in many instances. Attributing to the plaintiff views that he does not hold or actions that he did not take may constitute placing him in a false light. Falsely asserting that the plaintiff was a victim of a crime or once lived in poverty may be sufficient for the false light tort. This false light does not necessarily involve an absolute falsity; rather, the presentation of the truth in a misleading way can be sufficient to sustain this claim. Truth is not a defense if the resulting implication is still false or misleading, but it may be a defense if the resulting implication is true.

4. Public Disclosure of Private Facts

π must show that: i) ∆ gave publicity to a matter concerning the private life of another; and ii) The matter publicized is of a kind that: a) Would be highly offensive to a reasonable person; and b) Is not of legitimate concern to the public. Disfavored tort c. Disclosure of dated material

a. Defamation defenses

The defenses of absolute and qualified privilege that are applicable in defamation actions also apply to privacy actions brought on "false light" or "public disclosure of private facts" grounds. These defenses are not applicable if the defendant was intrusive.