Keith Mack
Privacy laws are a relatively new concept, particularly in the West, where they are founded on the Enlightenment view of the individual as the focus of society, with rights to live and act without interference. In the United States, privacy laws deal with several legal concepts, including the right to privacy, which is broadly defined as the right to be left alone. This right can be enforced through a claim of invasion of privacy, which can take several forms, including appropriation. Appropriation occurs when a defendant uses a plaintiff's name, likeness, or identity without permission for their own benefit, often commercial. For example, using a celebrity's picture for advertising without their consent. However, there are defences against appropriation lawsuits, such as when a person's identity is used in connection with reporting news or matters of legitimate public concern. The reasonable expectation of privacy is a legal test that helps define the scope of privacy protections under the Fourth Amendment, and it can be subjective or objective.
| Characteristics | Values |
|---|---|
| Invasion of privacy lawsuit | Intrusion of solitude, intrusion upon seclusion or private affairs |
| Public disclosure of embarrassing private facts | |
| Publicity which places a person in a false light in the public eye | |
| Appropriation of name or likeness | |
| Unauthorised use of a person's name or likeness to obtain some benefits | |
| Unauthorised commercial use of identity | |
| Unauthorised use of a celebrity's picture for advertising | |
| Unreasonable searches and seizures | |
| Unauthorised government intrusion into one's private life | |
| Unauthorised publicity | |
| Unreasonable disclosure of private facts | |
| Unauthorised intrusion into one's private activities | |
| Unauthorised appropriation or exploitation of one's personality | |
| Unauthorised appropriation of personality for commercial purposes | |
| Unauthorised appropriation of personality for newsworthy purposes | |
| Unauthorised appropriation of personality for non-commercial benefit |
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What You'll Learn
Invasion of privacy lawsuits
Privacy is a fundamental right in the United States, and the violation of this right can have profound implications. The tort law definition of privacy, or the tort of invasion of privacy, is the right to be left alone and to control the disclosure of personal facts. The right to privacy can be enforced through a claim of invasion of privacy. An invasion of privacy lawsuit can be based on different claims or causes of action.
Invasion of privacy is a broad legal concept that encompasses several distinct torts, and the viability of a lawsuit will hinge on the nature of the intrusion and the applicable laws. There are four main types of invasion of privacy torts:
- Intrusion upon seclusion: This involves an unwanted intrusion, both physical or electronic, into a private space or area.
- Public disclosure of private facts: This involves the public disclosure of embarrassing private facts.
- Publicity placing a person in a false light: This involves publicity that places a person in a false light in the public eye.
- Appropriation of name or likeness: This occurs when someone publicly uses the name or likeness of another person for their own benefit.
To succeed in an appropriation lawsuit, you must prove that you did not grant permission for the use of your identity, that the defendant utilized a protected aspect of your identity, and that the defendant used your identity for their immediate and direct benefit. The law varies from state to state on what constitutes a protected aspect of identity. For example, California law expressly protects a person's name, likeness, and image, while Florida law is more limited, protecting only a person's name, likeness, portrait, and photograph. The last element involving "benefit" is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving commercial benefit, while other states may attach liability even if the defendant appropriated the identity for non-commercial benefit, such as impersonation for professional gain.
There are several defences available to negate an invasion of privacy appropriation lawsuit, including consent, newsworthiness or public interest, truth, and lack of a reasonable expectation of privacy. For example, if a person's identity has been appropriated in connection with reporting the news or for commentary, then the First Amendment shields the defendant from liability. However, if the appropriated use bears no reasonable relationship to the news or commentary, the defence will not stand. Creative works are also generally exempt from liability for invasion of privacy, provided they contain elements that materially and substantially change the content beyond the appropriated identity.
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Defenses against appropriation lawsuits
- If a person’s identity has been appropriated in connection with reporting the news or for commentary, then the First Amendment shields the defendant from liability.
- When it comes to matters of legitimate public concern, the case law cuts in favor of defendants. Courts have also refused to attach liability in cases where the identity was appropriated for use in creative works.
- If the matter is the subject of legitimate public concern, then the First Amendment’s freedom of speech and freedom of the press guarantees protect the publication from lawsuits.
- If the plaintiff is a newsworthy figure, the publication of their name or likeness is not actionable as long as it is not used for business or advertising purposes.
The defenses available in appropriation lawsuits vary depending on the jurisdiction and the specifics of the case. To successfully defend against an appropriation lawsuit, it is essential to understand the specific laws and precedents applicable to the case.
Additionally, it is worth noting that the law surrounding appropriation and privacy is complex and can vary from state to state. The right to privacy can be enforced through a claim of invasion of privacy, and an invasion of privacy lawsuit can be based on different claims or causes of action. In common law states, the right to privacy causes of action includes Intrusion of Solitude (or Intrusion Upon Seclusion or Private Affairs). The restatement of torts defines appropriation as the act of appropriating for one's own use or benefit the name or likeness of another, which makes them liable to the other for invasion of privacy.
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Right of publicity
The right of publicity is a right to legal action, designed to protect the names and likenesses of celebrities and public figures against unauthorized exploitation for commercial purposes. It is a property right that safeguards the commercial value of the image cultivated by a celebrity. The right of publicity is similar to copyright law, and it can be interpreted in conjunction with the Lanham Act, which covers false endorsement claims and false advertising.
The right of publicity is largely protected by state common or statutory law, with about half of the United States recognizing this right. Many states recognize the Right of Publicity as a common law cause of action, while in other states it is statutory. In some states, the right is personal and can only be asserted by the individual during their lifetime, while in other states, it is descendable and can be asserted by the individual's heirs.
The right of publicity is often confused with the right to privacy, which is a broader concept that guards individuals' personal rights against emotional distress. The right to privacy can be enforced through an invasion of privacy lawsuit, which can include claims of intrusion upon seclusion, public disclosure of embarrassing private facts, publicity that places a person in a false light, and appropriation of name or likeness.
To succeed in an appropriation lawsuit, a person must prove that they did not grant permission for the use of their identity, that a protected aspect of their identity was utilized, and that their identity was used for immediate and direct benefit. The benefit is typically commercial, such as using a personal photograph for advertising. However, some states, like Florida, limit liability to situations involving commercial benefit, while other states may attach liability even for noncommercial benefit, such as impersonation for professional gain.
The right of publicity is an important tool for celebrities and public figures to protect their commercial interests and ensure that their names and likenesses are not exploited without their consent.
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Subjective vs objective expectations of privacy
In United States constitutional law, the "reasonable expectation of privacy" is a legal test that defines the scope of the applicability of the privacy protections of the Fourth Amendment to the US Constitution. The Fourth Amendment protects people from warrantless searches of places or seizures of persons or objects where they have a subjective expectation of privacy that is deemed reasonable.
Subjective Expectation of Privacy
Subjective expectation of privacy refers to an individual's opinion that a certain location or situation is private, which can vary significantly from person to person. For example, a person may have a subjective expectation of privacy in their car, but this may not always be objectively reasonable.
Objective Expectation of Privacy
Objective expectation of privacy refers to expectations that are generally recognised by society and may be protected by law. Places where individuals typically expect privacy include residences, hotel rooms, and public places specifically designated for privacy, such as public restrooms.
The Two-Part Test
To determine whether an individual's reasonable expectation of privacy has been violated, Justice Harlan created a two-part test in Katz v. United States:
- The individual must exhibit an actual (subjective) expectation of privacy, demonstrating that they took reasonable steps to keep the information private.
- Society at large must deem the individual's expectation of privacy as reasonable.
Application in Civil and Criminal Law
The reasonable expectation of privacy is crucial in both civil and criminal law contexts. In the criminal context, it limits searches by government actors, ensuring that law enforcement obtains a warrant based on probable cause before conducting a search. In the civil context, it allows individuals to hold others accountable for violating their personal privacy. For example, invading someone's privacy through physical intrusion or electronic monitoring can lead to liability.
Limitations and Exceptions
It is important to note that the expectation of privacy is not absolute and must be reasonable. The disclosure or discovery of private matters must occur in a place or situation where a reasonable person would take offence. Additionally, there are exceptions to the reasonable expectation of privacy, such as in open fields or when information is provided to third parties.
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Privacy laws in the US
Privacy laws in the United States are complex and multifaceted, encompassing various federal and state statutes. While there is no comprehensive national privacy law, several sector-specific federal laws address privacy and data security. These include laws governing financial institutions, telecommunications companies, credit reporting agencies, and healthcare providers. Additionally, consumer protection laws prohibit unfair and deceptive business practices, empowering the Federal Trade Commission (FTC) to take action against companies that violate privacy and data security standards.
One key aspect of privacy law in the US is the right to privacy, which can be enforced through invasion of privacy lawsuits. This right is often associated with the Fourth Amendment, which protects against unreasonable searches and seizures, safeguarding individuals' reasonable expectations of privacy. For example, the Supreme Court has protected against government intrusion into personal life when there is a reasonable expectation of privacy. This expectation can be subjective, varying from person to person, or objective, generally recognised by society and protected by law. The plain view concept is crucial, as information that is not reasonably concealed from casual observers may not be protected.
Invasion of privacy can manifest in several ways, including intrusion upon seclusion, public disclosure of embarrassing private facts, publicity that casts an individual in a false light, and appropriation of name or likeness. Appropriation occurs when someone uses another person's identity for their benefit without permission. This often involves using a person's name, likeness, or image for advertising or commercial purposes. To succeed in an appropriation lawsuit, individuals must prove non-consent, utilisation of a protected aspect of their identity, and direct benefit to the defendant.
State privacy laws play a significant role in the US privacy landscape, with some states enacting comprehensive privacy statutes. California, for instance, has over 25 state privacy and data security laws, including the CCPA. State laws can overlap with or be preempted by federal laws, creating a complex interplay. Additionally, state attorneys general have enforcement authority over unfair and deceptive business practices, including violations of consumer privacy rights.
Specific privacy laws in the US include the Gramm-Leach-Bliley Act (GLBA), which protects against the sale of private financial information and pretexting. The Right to Financial Privacy Act of 1978 also safeguards the confidentiality of personal financial records. The Employee Polygraph Protection Act of 1988 prohibits employers from requiring or using lie detector tests. The Video Privacy Protection Act of 1988 safeguards consumer privacy in the context of video rental records. Additionally, the HIPAA Privacy Rule sets a federal floor for health information privacy while allowing more protective state laws to coexist.
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Frequently asked questions
Appropriation in privacy laws refers to the unauthorized use of a person's name, likeness, or identity for another's benefit. This is considered an invasion of privacy, and the affected person may sue for damages.
An example of appropriation in privacy laws is the use of a celebrity's picture on a billboard to advertise a commercial interest or product without their consent.
A subjective expectation of privacy refers to an individual's opinion that a certain location or situation is private, which may vary from person to person. For example, a person may have a subjective expectation of privacy in their car, but it may not always be objectively reasonable.
