Question I: Invasion of Privacy

Invasion of Privacy definition

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Public Disclosure of Private but True Facts

(1) disclosed fact was a private fact, (2) public disclosure of the private fact, (3) public disclosure of private facts is offensive to a reasonable person of ordinary sensibilities The interest is in not being exposed requires disclosure test is offensiveness; overlaps with defamation Constitutional limits are invoked, unless it is a matter of public concern / public record Summary: . The disclosed fact was a private fact. A private fact is a detail of a person's life that is not generally known to the public or, at the very least, is not information that is publicly available. Examples include sexual orientation, medical history, and financial difficulties, but depending on context, may include any other potentially embarrassing private fact, such as employment history. A photograph, video, or audio recording may also be a private fact, but only if it was taken in a public or semi-public place. 2. There was a public disclosure of the private fact(s). A public disclosure is any communication of the fact-at-issue to the public, or to enough people that it's reasonably likely the fact will become public knowledge (assuming that those people will tell others). Examples of public disclosure include writing about the private facts on a blog, a website, as a comment on a bulletin board, or speaking to groups of others, in person, about the fact-at-issue. Generally, disclosure to one or two people does not constitute a public disclosure unless there is an implication that the information should be spread around. 3. The public disclosure of private facts is offensive to a reasonable person of ordinary sensibilities. The law asks whether an ordinary person, exhibiting the general beliefs of the community in which the disclosure takes place would take offense to the disclosure of the particular private facts. The law recognizes that complete privacy does not exist in modern society, and that occasional, unintentional disclosures of private facts will necessarily occur. Thus, the idea behind the "offensiveness" element is to restrict actionable claims to disclosures that are particularly harmful. Sexually charged disclosures are frequently considered offensive, but depending on the context, other private facts may also be determined offensive.

Defenses

-matters of public record are exempt; -consent; -legitimate public interest (did the PL make herself a temporary public figure? or are they a celebrity? in that case, details of their private lives are more likely to be considered legitimate public interest).

General Notes

apart from things like personnel records, almost nothing that is true about one is private CURIOSITY is what drives the "newsworthiness" here - the ends justify the means ("morbid curiosity") - as opposed to defamation, where what's driving "newsworthiness" is the importance of the information.

intrusion

interest in one's expectations of personal space test is offensiveness; overlaps with trespass. Would it be highly offensive to a reasonable person? --> what was the expectation of privacy in the circumstances? does misrepresentation of purposes affect the intrusion? is free speech or newsworthiness/matters of public concern implicated? disclosure not required?? constitution not necessarily implicated; unless its a matter of public concern investigative reporting question: entering on the basis of fraud/trespass, but the IP is not sustained because its justified by free speech. Expectations are not necessarily what the law would protect (if it can be seen/heard from the public way; some expectation at home, before work, etc.) Internet Summary: •First, that the defendant, without authorization, must have intentionally invaded the private affairs of the plaintiff; •Second, the invasion must be offensive to a reasonable person; •Third, the matter that the defendant intruded upon must involve a private matter; and •Finally, the intrusion must have caused mental anguish or suffering to the plaintiff. See Restatement (Second) of Torts - Intrusion Upon Seclusion. With respect to the first element of an intrusion claim -- intentional invasion into the private affairs of another -- courts generally require that the intrusion take the form of a "physical trespass." This can be met literally, by physically entering onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy. A court would consider this a "physical trespass" if your use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording. The second element requires that the actions giving rise to a claim must be offensive to a reasonable person. This requires more than mere discomfort or embarrassment. For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive. The third element requires that the intrusion involve a private matter. Generally speaking, if you've intruded into someone's seclusion in a place they expect privacy (e.g., a bathroom or their bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met. The fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded. This suffering can come from surprise, fright, or even anger at having been disturbed. In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established. Keep in mind that consent is typically one of your strongest defenses to an intrusion claim. Consent can often be gained expressly, by someone specifically telling you that you can photograph or collect private information about them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment. If consent is required, however, you must obtain it from someone who is legally able to give it. Permission from a child or mentally handicapped person is unlikely to be valid; in those situations, you should seek consent from the appropriate parent or guardian.

appropriation

interest is in the dignity of one's identity/name test is use/abuse --> does it have value? was there commercial use made of it? or is it only private use? Most jurisdictions require the name or ID have commercial value. Is free speech implicated? Is the use in the public interest or for the public's benefit? Is it newsworthy? publication not required?? constitution not necessarily implicated; unless its a matter of public concern Internet Summary: For ordinary people, the unauthorized use of their name or likeness is actionable as an invasion of privacy and the plaintiff will be able to bring a tort action for appropriation of his likeness. However, if the plaintiff is a celebrity, the use of his name and likeness has a clear commercial value and thus, he would be entitled to damages for the appropriation of his likeness under a tort theory and also for the violation of his right of publicity under an intellectual property theory. As with the other intrusion torts, causation is essential for a viable cause of action here. The defense to a suit for appropriation is newsworthiness. That is to say, if the plaintiff is a newsworthy figure, publication of his name or likeness is not actionable so long as the use is not for business or advertising purposes. Thus, showing movie clips of a recently deceased actor is considered newsworthy and, thus, not actionable. Please note as well that newspapers that place pictures of newsworthy people on the front page of their papers are insulated from liability, even if they place the pictures on the front page of their newspapers for the "commercial purpose" of selling more newspapers, so long as the picture is there for some newsworthy purpose. Damages will be measured based on the plaintiff's stature in the eyes of the public. If the plaintiff is a public figure, he can recover damages for the value of the use of his name or likeness. For private plaintiffs, emotional harm is recoverable along with other general damages.