Cecily Zamora
Invasion of privacy is a common law tort that recognises four forms of invasion: intrusion upon seclusion, public disclosure of private facts, publicity placing another in a false light, and appropriation of name or likeness. Common law, or law created by the history of court rulings, protects the private lives of individuals. An invasion of privacy occurs when there is an intrusion upon an individual's reasonable expectation of privacy. For example, if a private conversation in your home is eavesdropped on by a neighbour using an electronic device, your privacy has been invaded. However, it is important to note that state invasion of privacy laws vary, and it is necessary to check the specific laws in your state.
| Characteristics | Values |
|---|---|
| Definition | The right to privacy has been defined as the right to be left alone. |
| Common Law States | Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Missouri, Nevada, New Jersey, New Mexico, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Washington, West, and the District of Columbia. |
| Four Forms of Invasion of Privacy | Intrusion upon seclusion, public disclosure of private facts, publicity placing another in a false light, and appropriation of name or likeness. |
| Intrusion Upon Seclusion | Someone intrudes into your private affairs, isolation, or solitude without your consent or approval. |
| Public Disclosure of Private Facts | Someone reveals private or confidential information in a public forum, such as social media or a magazine. |
| Publicity Placing Another in a False Light | Information about a person that is false or misleading is widely published and is highly offensive to a reasonable person. |
| Appropriation of Name or Likeness | An individual's name or likeness is used to promote a product or service without their consent. |
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What You'll Learn
Intrusion upon seclusion
To be actionable, the intrusion must be of a type that is offensive to a reasonable person. The offensiveness element is judged under an objective standard, based on whether a reasonable person would consider the intrusion to be highly offensive. The intent element, on the other hand, is subjective and based on what the defendant actually knew or believed about whether they had consent or legal permission. For example, in Jackson v. Playboy Enterprises, Inc., the court found that an individual who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or their private affairs is subject to liability for invasion of privacy.
Consent is a valid defense to a claim of intrusion upon seclusion. However, the defendant's intrusion must stay within the scope of the plaintiff's consent. If the defendant's actions exceed the plaintiff's consent, the defense of consent is lost. For example, if a plaintiff consents to the defendant recording a conversation between the plaintiff and their mother, and the defendant records this conversation, the plaintiff would not have a claim for intrusion upon seclusion.
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Public disclosure of private facts
To prove a case of public disclosure of private facts, the plaintiff must demonstrate that the defendant disclosed private facts about them that were highly offensive and not of legitimate public concern. The plaintiff must also show that the disclosure was made widely, such as through mass media, and that it pertained specifically to their private life. Additionally, the plaintiff must prove that the defendant's actions were the actual and proximate cause of the disclosure and the harm suffered.
It is worth mentioning that the law recognizes that complete privacy does not exist in modern society, and unintentional disclosures of private facts can occur. Therefore, the ""offensiveness" element aims to restrict actionable claims to disclosures that are particularly harmful. Sexually-charged disclosures are often considered offensive, but the context of the disclosure is also crucial. The First Amendment protects the right to free speech and freedom of the press, and state supreme courts have expanded the plaintiff's burden to balance this right with the need to protect against harmful speech.
The idea of "public disclosure of private facts" was influenced by Warren and Brandeis, who later became a U.S. Supreme Court justice. They believed that all people deserved the "right to be let alone." These laws are similar to defamation laws in that they aim to protect an individual's reputation from harm. However, public disclosure of private facts laws focus on protecting against harm resulting from true but embarrassing or sensitive facts, while defamation laws address false assertions.
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False light laws
To establish a false light claim, a plaintiff must prove that:
- The defendant published information about them.
- The information portrays the plaintiff in a false or misleading light. This includes disclosing information that may be true but is nonetheless misleading or damaging.
- The information is highly offensive or embarrassing to a reasonable person.
- The defendant published the information with reckless disregard for its offensiveness.
It is important to note that false light laws vary by jurisdiction, and some states in the US do not recognize false light claims as a separate cause of action from defamation. In these states, false light lawsuits may need to be rewritten as defamation lawsuits. However, most states do allow false light claims, and they can often be easier to establish than defamation claims.
Some examples of successful false light claims include:
- Nellie Mitchell, a 96-year-old woman, sued a tabloid newspaper for printing her picture next to a headline claiming she was the world's oldest newspaper carrier and was pregnant at 101 years old. She was awarded $1.5 million in damages.
- Actor Jose Solano Jr. won a false light claim against Playgirl magazine due to suggestive headlines on the magazine's cover, which implied that he might be pictured nude inside.
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Appropriation of name or likeness
Invasion of privacy is considered the intrusion upon, or revelation of, something private. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity, and false light.
The appropriation of name or likeness laws protects an individual's right to control the use of their identity for commercial use. The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.
In the United States, the right of publicity is largely protected by state common or statutory law. Only about half of the states have distinctly recognized a right of publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy. For example, in California, common law has generally followed Prosser's classification of privacy interests as embodied in the Restatement.
In Colorado, an individual whose name or likeness has been appropriated may recover "personal damages," including emotional injury, harm to reputation, and related financial losses. However, Colorado does not recognize damages based upon the commercial value of one's persona. In other jurisdictions, courts have recognized a "right of publicity" against those who appropriate, without consent, the plaintiff's name, likeness, or identity, under which commercial damages are recoverable if the plaintiff proves value in their identity.
To be actionable, the intrusion into the plaintiff's private affairs must be offensive to a reasonable person. While the Restatement of Torts provides that the acts constituting the invasion of privacy must be highly offensive to a reasonable person, in the case of wrongful appropriation of one's name or likeness, the act need not be highly offensive to constitute invasion of privacy. The unwarranted publication of a person's name or likeness may constitute the most common means of invasion of the right of privacy.
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Invasion of privacy in employment
In employment law, an "invasion of privacy" typically refers to a situation where an employee feels that their employer has violated their right to privacy. Generally, an invasion of privacy occurs when a "reasonable person" expects certain information to remain private or wishes to be out of public view, and another person obtains and/or publicly discloses this information.
Employees have the right to keep private facts about themselves confidential and the right to some degree of personal space. However, privacy protections become more complex when in a public place, including the workplace. An employee's privacy rights are rather limited, and employers may legally engage in surveillance, drug testing, or monitoring of an employee's lifestyle. Nevertheless, there are certain circumstances where employees can take legal action against their employers for invading their privacy. These cases depend on state laws, the nature of the job, and the specific facts of each situation.
Common invasions of privacy in employment include the disclosure of medical records, illegal surveillance, and monitoring of an employee's private life outside of work. For instance, installing hidden video cameras in an employee restroom would likely qualify as an invasion of privacy, unless the job is in a high-security industry. Additionally, an employer might be liable for invasion of privacy if they install surveillance cameras in a locker room or restroom and regularly view the footage.
Invasion of privacy lawsuits against employers will typically consider the nature of the intrusion and its overall effect. The invasion of privacy must be one that a reasonable person would not expect, and the employee must suffer a highly offensive invasion of privacy, long-term distress, or other consequences as a result. For example, if an employer discloses private facts or lies about an employee, they may be held accountable in a civil action for invasion of privacy or defamation.
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