3.1 Invasion of privacy torts

Privacy torts protect individuals from invasions of their personal space and information. There are four main types: intrusion upon seclusion, public disclosure of private facts, false light publicity, and appropriation of name or likeness. Each has specific elements that must be proven for a successful claim.

These torts often clash with First Amendment freedoms of speech and press. Courts must balance privacy interests against the public's right to know, considering factors like the individual's status and the newsworthiness of the information. Emerging technologies present new challenges in applying traditional privacy concepts.

Types of privacy torts

• Privacy torts protect individuals from invasions of their privacy by others, including the media
• Four main types of privacy torts recognized in the United States: intrusion upon seclusion, public disclosure of private facts, false light publicity, and appropriation of name or likeness
• Each tort has specific elements that must be proven for a successful claim

Intrusion upon seclusion

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• Involves physical or electronic intrusion into a person's private affairs or solitude
• Requires a reasonable expectation of privacy in the area intruded upon
• Intrusion must be highly offensive to a reasonable person
• Examples: hidden cameras, wiretapping, trespassing

Public disclosure of private facts

• Involves dissemination of truthful but private information about an individual
• Information must not be of legitimate public concern
• Disclosure must be highly offensive to a reasonable person
• Widespread dissemination is typically required

False light publicity

• Involves portraying an individual in a false or misleading light
• Portrayal must be highly offensive to a reasonable person
• Requires actual malice for public figures
• Similar to defamation but does not require proof of harm to reputation

Appropriation of name or likeness

• Involves unauthorized use of an individual's name, likeness, or identity for commercial purposes
• Protects the right of publicity, especially for celebrities
• First Amendment and newsworthiness defenses may apply
• Parody and transformative use can be exceptions

Elements of privacy torts

• Each privacy tort has specific elements that must be proven for a successful claim
• Common elements include a reasonable expectation of privacy, highly offensive conduct, and publicity or publication of private information
• Defenses such as consent and newsworthiness can defeat privacy claims

Reasonable expectation of privacy

• Plaintiff must have a subjective expectation of privacy in the area or information at issue
• Expectation must be objectively reasonable, considering societal norms and customs
• Reduced expectation of privacy in public places and for public figures

Highly offensive to a reasonable person

• Intrusion or disclosure must be highly offensive or objectionable to a reasonable person
• Considers the degree of intrusion, the nature of the information, and the circumstances
• More than minor annoyances or insensitivities

Publicity vs publication

• Publicity generally requires widespread dissemination to the public at large
• Publication may involve more limited sharing of information
• False light and appropriation torts typically require publicity

Consent and newsworthiness defenses

• Consent, whether express or implied, can defeat a privacy claim
• Newsworthiness defense applies to matters of legitimate public concern or interest
• Courts balance privacy interests against First Amendment considerations

Intrusion upon seclusion

• Protects against physical or electronic intrusions into a person's private affairs or solitude
• Requires a reasonable expectation of privacy in the area intruded upon
• Intrusion must be highly offensive to a reasonable person
• Includes trespass, surveillance, and other forms of intrusion

Physical vs electronic intrusion

• Physical intrusion involves physical trespass or invasion of private space (breaking and entering, hidden cameras)
• Electronic intrusion involves the use of technology to invade privacy (wiretapping, hacking, GPS tracking)
• Both forms can support an intrusion claim if the other elements are met

Reasonable expectation of privacy in public places

• Reduced expectation of privacy in public places, but some privacy still recognized
• Considers the nature of the activity, the means of intrusion, and societal norms
• Examples: public restrooms, changing rooms, private conversations in public

Hidden cameras and microphones

• Use of hidden recording devices can constitute intrusion upon seclusion
• Considers the location, the subject matter recorded, and the means of recording
• Generally unlawful to record in private areas or where there is a reasonable expectation of privacy

Trespass and surveillance

• Physical trespass onto private property can support an intrusion claim
• Surveillance, whether physical or electronic, can constitute intrusion if it invades a reasonable expectation of privacy
• Examples: peeping toms, stalking, unauthorized GPS tracking

Public disclosure of private facts

• Involves dissemination of truthful but private information about an individual
• Information must not be of legitimate public concern
• Disclosure must be highly offensive to a reasonable person
• Widespread dissemination is typically required

Private vs public facts

• Private facts are those that are not generally known or available to the public
• Public facts are those that are already in the public domain or of legitimate public concern
• The status of the individual (public figure vs private citizen) can affect the analysis

Highly offensive to a reasonable person

• Disclosure of the private facts must be highly offensive or objectionable to a reasonable person
• Considers the nature of the information, the circumstances of disclosure, and societal norms
• More than minor embarrassment or discomfort

Widespread dissemination requirement

• Most jurisdictions require widespread dissemination to the public at large
• Limited sharing among a small group may not satisfy this element
• Considers the means and extent of dissemination

Newsworthiness and public interest defenses

• Matters of legitimate public concern or interest are protected by the First Amendment
• Courts balance the individual's privacy interest against the public's right to know
• Factors include the social value of the information, the depth of intrusion, and the status of the individual

False light publicity

• Involves portraying an individual in a false or misleading light
• Portrayal must be highly offensive to a reasonable person
• Requires actual malice for public figures
• Similar to defamation but does not require proof of harm to reputation

False or misleading portrayal

• Publicized information must be false or create a false impression about the individual
• Misleading editing, selective omissions, or juxtaposition of facts can create false light
• Fictionalization or dramatization of true events can also support a claim

Highly offensive to a reasonable person

• False portrayal must be highly offensive or objectionable to a reasonable person
• Considers the nature of the falsehood, the circumstances of publication, and societal norms
• More than minor inaccuracies or mischaracterizations

Actual malice for public figures

• Public figures must prove actual malice to prevail on a false light claim
• Actual malice requires knowledge of falsity or reckless disregard for the truth
• Higher burden than for private figures, who may only need to prove negligence

Distinguishing from defamation

• False light claims do not require proof of harm to reputation, unlike defamation
• False light focuses on the offensiveness of the portrayal, rather than its defamatory nature
• Some jurisdictions do not recognize false light as a separate tort from defamation

Appropriation of name or likeness

• Involves unauthorized use of an individual's name, likeness, or identity for commercial purposes
• Protects the right of publicity, especially for celebrities
• First Amendment and newsworthiness defenses may apply
• Parody and transformative use can be exceptions

Commercial vs non-commercial use

• Commercial use involves exploitation of identity for advertising, merchandising, or other commercial purposes
• Non-commercial use, such as news reporting or artistic expression, may be protected by the First Amendment
• The line between commercial and non-commercial use can be blurry in some cases

Right of publicity for celebrities

• Celebrities have a heightened right of publicity based on the commercial value of their identity
• Protects against unauthorized use of name, image, voice, or other distinctive attributes
• Some jurisdictions recognize a postmortem right of publicity for a certain period after death

First Amendment and newsworthiness defenses

• Use of name or likeness in connection with matters of public interest may be protected by the First Amendment
• Newsworthiness defense applies to reporting on newsworthy events, public figures, or matters of public concern
• Courts balance the individual's commercial interests against free speech considerations

Parody and transformative use

• Parody or satire using an individual's name or likeness may be protected as transformative use
• Transformative use adds significant creative elements or social commentary beyond mere exploitation of identity
• Courts consider the extent of transformation and the economic impact on the individual

Privacy vs First Amendment

• Privacy rights often conflict with First Amendment freedoms of speech and press
• Courts balance privacy interests against the public's right to know and the free flow of information
• The status of the individual and the newsworthiness of the matter are key considerations

Balancing privacy and free speech

• Courts weigh the individual's privacy interests against the First Amendment values at stake
• Matters of legitimate public concern or interest generally receive greater First Amendment protection
• Privacy interests may prevail where the intrusion or disclosure is particularly offensive or unjustified

Newsworthiness and public interest

• Newsworthiness defense protects reporting on matters of legitimate public concern or interest
• Considers factors such as the social value of the information, the depth of intrusion, and the status of the individual
• Broader protection for reporting on public figures and public affairs

Prior restraints on publication

• Prior restraints on publication are presumptively unconstitutional under the First Amendment
• Courts rarely uphold injunctions against publication, even of allegedly private or confidential information
• Subsequent civil or criminal liability may still apply after publication

Chilling effects on journalism

• Potential liability for privacy torts can have a chilling effect on journalism and free speech
• Journalists may self-censor or avoid reporting on controversial or sensitive topics for fear of legal action
• Courts consider the impact on First Amendment freedoms in crafting the scope of privacy protections

Emerging privacy issues

• Rapid technological and social changes present new challenges for privacy law
• Courts and legislatures grapple with how to adapt traditional privacy concepts to the digital age
• Key issues include online privacy, data protection, surveillance technologies, and the right to be forgotten

Online privacy and data protection

• The widespread collection, use, and sharing of personal data online raises privacy concerns
• Websites, apps, and online services often collect and monetize user data for advertising and other purposes
• Legal frameworks like the European Union's General Data Protection Regulation (GDPR) seek to give individuals greater control over their personal data

Drones and aerial photography

• The increasing use of drones for journalism, photography, and other purposes presents new privacy issues
• Drones can capture images and video from previously inaccessible vantage points, potentially intruding on privacy
• Courts and regulators consider how to balance the benefits of drone technology with privacy concerns

Facial recognition technology

• Facial recognition software can identify individuals from photographs or video footage
• Law enforcement, retailers, and other entities increasingly use facial recognition for various purposes
• Critics raise concerns about privacy, surveillance, and the potential for abuse or misuse of the technology

Right to be forgotten

• The right to be forgotten refers to an individual's ability to have certain information about them removed from online searches or databases
• Recognized in some jurisdictions, particularly in the European Union
• Raises questions about the balance between privacy, free speech, and the public's right to access information