Torts - Invasion of Right to Privacy

Appropriation of Plaintiff's Picture or Name (Prima Facie Case)

Element: (1) Unauthorized use by defendant of plaintiff's picture or name for defendant's commercial advantage.

Public Disclosure of Private Facts About Plaintiff (Prima Facie Case)

Elements: (1) Publication of public disclosure by defendant of private information about the plaintiff; and (2) The matter made public is such that its disclosure would be highly offensive to a reasonable person.

Intrusion Highly Offensive to a Reasonable Person

For liability to attach, the intrusion by defendant must be something that would be highly offensive to a reasonable person.

Proof of Special Damages Unnecessary (All Privacy Torts)

In an action for invasion of right to privacy, the plaintiff need not plead and prove special damages, provided the elements of a prima facie case are present. In other words, emotional distress and mental anguish are sufficient damages.

Limited to Advertisement or Promotion of Product or Service (Appropriation)

Liability is generally limited to the use of plaintiff's picture or name in connection with the promotion of advertisement of a product or service, e.g., use of plaintiff's picture to advertise an automobile. The mere fact that defendant is using plaintiff's picture or name for his own personal profit may not, by itself, be sufficient. Thus, for example, the use of a personality's name in a magazine story, even if motivated by profit, may not be actionable.

Not Applicable to Corporations (misc.)

Only individuals may avail themselves of a right to privacy action; it does not apply to corporations.

Basis of Liability (All Privacy Torts)

The basis of liability in a privacy action may rest on an intentional or negligent invasion.

Facts Must Be Private (Publication of Private Facts)

The facts disclosed must be "private." For example there is no liability for matters of public record, since these facts are not private.

Causation (All Privacy Torts)

The invasion of plaintiff's interest in privacy must have been proximately caused by defendant's conduct.

Effect of Passage of Time (Constitutional Privilege, Publication of Private Facts)

The mere passage of time does not preclude the "public interest" characterization of a publication. Hence, it has frequently been held that the life of one formerly in the public eye has become public property, even though that person is no longer in the public eye.

Right Is Personal (misc.)

The right of privacy is a personal right and does not extend to members of a family. The right of privacy does not survive the death of plaintiff and is not assignable.

Disclosure Highly Offensive to Reasonable Person (Publication of Private Facts)

To be actionable, the disclosure of private facts must be such that a reasonable person would find it highly offensive.

Highly Offensive to Reasonable Person

To be actionable, this "false light" must be something that would be highly offensive to a reasonable person under the circumstances.

Absolute Privilege with Regard to Matters of Public Record (Publication of Private Facts)

Where the matters republished are taken from official public records, there is an absolute constitutional privilege (e.g., rape victim's name obtained from police records or court proceedings used in newspaper article).

Constitutional Privilege (Publication of Private Facts)

If the matter is one of legitimate public interest, the publication is privileged if made without actual malice.

Facts May Be True (Publication of Private Facts)

Liability may attach under this privacy branch if the three elements of a prima facie case are satisfied even though the factual statement about the plaintiff is true.

Invasion of Right to Privacy

The right to protection against unreasonable interferences with an individual's solitude is well recognized. The tort of invasion of privacy as it has developed, however, includes protection of "personality" as well as protection against interference with solitude. In all, the tort includes the following: (1) Appropriation by defendant of plaintiff's picture or name for defendant's commercial advantage; (2) Intrusion by the defendant upon plaintiff's affairs or seclusion; (3) Publication by the defendant of facts placing the plaintiff in a false light; and Public disclosure of private facts about the plaintiff by the defendant.

Defenses to Invasions of Privacy (All Privacy Torts)

(1) Consent - Some states, by statute, require consent to be in writing. (2) Defamation Defenses - Those defenses to actions for defamation that are based on absolute privilege and qualified privileges appear applicable to those invasion of right to privacy actions predicated on publication grounds, i.e., "false light" and "public disclosure of private facts" actions. Thus, for example, one may have an absolute privilege to comment as a participant in judicial proceedings or a qualified privilege to report public proceedings. Note: Truth is not a good defense to most invasion of privacy actions. Similarly, inadvertence, good faith, and lac of malice generally are not good defenses.

What is "False Light"?

A fact will be deemed to present plaintiff in a false light if it attributes to him: (i) Views that he does not hold, or (ii) Actions he did not take. Note: This element requires falsity and, as such, may also involve defamation if the falsity affects reputation.

Invasion of Plaintiff's Private Affairs or Seclusion

For liability to attach, there must be an invasion of the plaintiff's private affairs or seclusion; e.g., defendant puts a microphone in plaintiff's bedroom.

Publication or Public Disclosure

For liability to attach, there must be publicity concerning a private fact; i.e. the disclosure must be a public disclosure, not a private one.

Publication or Public Disclosure (False Light)

For liability to attach, there must be publicity concerning the "false light" facts; this requires more than "publication" in a defamatory sense.

Intrusion on Plaintiff's Affairs or Seclusion (Prima Facie Case)

Elements: (1) Act of prying or intruding on the affairs or seclusion of the plaintiff by the defendant; (2) The intrusion is something that would be highly offensive to a reasonable person; and (3) The thing to which there is an intrusion or prying is "private."

Publication of Private Facts Placing Plaintiff in False Light (Prima Facie Case)

Elements: (1) Publication of facts about plaintiff by defendant placing plaintiff in a false light in public eye; (2) The "false light" is something that would be highly offensive to a reasonable person under the circumstances; and (3) Actual malice on the part of the defendant where the published matter is in the public interest.

Intrusion Must Be Into Something "Private"

For liability to attach, the intrusion by defendant must be into something within the plaintiff's own private domain. Thus, for example, taking pictures of a person in a public place is not actionable.