3.4 Invasion of privacy torts

Invasion of privacy torts protect individuals from unwanted intrusions into their personal lives. These legal actions cover four main areas: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness.

Each type of privacy tort has specific elements that must be proven in court. Balancing privacy rights with freedom of speech can be tricky, especially when dealing with public figures or newsworthy events. Challenges in privacy claims include proving offensiveness and reasonable expectations of privacy.

Types of Invasion of Privacy Torts

Four Main Types

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• Intrusion upon seclusion involves the intentional intrusion into an individual's solitude, seclusion, or private affairs in a manner that would be highly offensive to a reasonable person (trespassing, eavesdropping, hacking into personal devices)
• Public disclosure of private facts involves the public revelation of private information about an individual that would be highly offensive to a reasonable person and is not of legitimate public concern (revealing medical records, sexual orientation, or financial information without consent)
• False light involves the public portrayal of an individual in a false or misleading way that would be highly offensive to a reasonable person (publishing altered photographs, attributing false statements or beliefs to an individual)
• Appropriation of name or likeness involves the unauthorized use of an individual's name, likeness, or other identifying characteristics for commercial purposes without their consent (using a celebrity's image in an advertisement without permission, creating merchandise featuring a person's likeness)

Elements of Invasion of Privacy Torts

Intrusion Upon Seclusion

• The plaintiff must prove that there was an intentional intrusion into their private affairs or concerns (physical intrusion, electronic surveillance, hacking)
• The intrusion would be highly offensive to a reasonable person (considering the nature and extent of the intrusion and the plaintiff's reasonable expectation of privacy)
• The intrusion must have caused mental anguish or suffering to the plaintiff
• The defendant's conduct was intentional or reckless, not merely negligent

Public Disclosure of Private Facts

• The plaintiff must show that the defendant publicly disclosed private information about them (through media outlets, internet, or other means of wide dissemination)
• The disclosure would be highly offensive to a reasonable person (considering the nature and sensitivity of the information and the plaintiff's reasonable expectation of privacy)
• The information is not of legitimate public concern (not newsworthy or related to a matter of public interest)
• The disclosure caused harm or damage to the plaintiff (emotional distress, reputational harm, financial losses)

False Light

• The plaintiff must demonstrate that the defendant publicly portrayed them in a false or misleading way (through media reports, publications, or other public statements)
• The portrayal would be highly offensive to a reasonable person (considering the nature and extent of the false portrayal and its potential impact on the plaintiff's reputation)
• The defendant acted with knowledge or reckless disregard for the falsity of the portrayal (showing actual malice, particularly for public figures)
• The false portrayal caused harm or damage to the plaintiff (emotional distress, reputational harm, financial losses)

Appropriation of Name or Likeness

• The plaintiff must prove that the defendant used their name, likeness, or other identifying characteristics for commercial purposes without their consent (in advertisements, merchandise, or other commercial contexts)
• The use resulted in injury or damage to the plaintiff (financial losses, emotional distress, or reputational harm)
• The defendant's use was not incidental or de minimis, but rather a significant aspect of the commercial activity
• The plaintiff did not consent to the use or the consent was exceeded or violated

Privacy vs Freedom of Speech

Balancing Competing Interests

• The First Amendment protects freedom of speech and press, which can sometimes conflict with an individual's right to privacy (particularly in cases involving matters of public concern or newsworthiness)
• Courts must balance the individual's privacy interests against the public's right to know and the media's right to report on matters of public concern (considering factors such as the nature of the information, the plaintiff's status as a public or private figure, and the newsworthiness of the disclosure)
• Newsworthiness is a key factor in determining whether the disclosure of private information is protected by the First Amendment (information related to public officials, public figures, or matters of public interest may be protected even if it would otherwise be considered an invasion of privacy)

Limitations on First Amendment Protection

• The Supreme Court has recognized that the First Amendment does not provide absolute protection for all speech, and that privacy rights can sometimes outweigh free speech considerations (particularly when the speech is of a purely private nature and not of public concern)
• In cases involving defamation or false light, the First Amendment requires public figures to prove actual malice (knowledge of falsity or reckless disregard for the truth) to recover damages, providing heightened protection for speech about public figures
• Speech that is considered obscene, fighting words, or true threats is not protected by the First Amendment and may be subject to regulation or restriction

Challenges in Invasion of Privacy Claims

Proving the Elements

• Invasion of privacy claims can be difficult to prove because the plaintiff must demonstrate that the intrusion or disclosure was highly offensive to a reasonable person, which is a subjective standard (what one person finds highly offensive may not be considered so by others)
• In cases involving public figures, plaintiffs face a higher burden of proof, as they must show that the defendant acted with actual malice (knowledge of falsity or reckless disregard for the truth)
• Plaintiffs must also demonstrate that they had a reasonable expectation of privacy in the information or context at issue (information shared with others or in public spaces may not be considered private)

Defenses and Limitations

• Defendants may argue that the information was already public (through prior disclosures, public records, or the plaintiff's own actions), that the plaintiff consented to the disclosure (expressly or implicitly), or that the disclosure was protected by the First Amendment as a matter of public concern
• The rise of social media and the internet has made it easier for private information to be shared and disseminated widely, making it more challenging to protect individual privacy rights (once information is posted online, it can be difficult to control its spread or remove it entirely)
• Jurisdictional issues can arise when invasion of privacy claims involve online or cross-border activities, as different states and countries may have varying privacy laws and standards (making it difficult to determine the applicable law or enforce judgments across jurisdictions)
• Statutes of limitations may bar invasion of privacy claims if the plaintiff does not file suit within the required time period after the intrusion or disclosure occurs (varying by state and type of claim)