(6) Torts: Right to Privacy/Invasion of Privacy Flashcards
Hint: I FLAP
Right to Privacy/Invasion of Privacy
Overview
The right to privacy includes 4 separate torts that expire at death
1. Misappropriation of the Right to Publicity (Commercial Appropriation)
2. Intrusion Upon Seclusion
3. False Light
4. Public Disclosure of Private Facts
Misappropriation of Right to Publicity (Commercial Appropriation)
Right to Privacy
An individual has the right to control the commercial use of their identity.
Rule: P must prove (1) The D’s unauthorized appropriation of the P’s name, likeness or identity; (2) For the D’s advantage, commercial or otherwise; (3) Lack of consent; AND (4) Resulting injury.
Instrusion upon Seclusion
Right to Privacy
D’s act of intruding physically or otherwise into the P’s private affairs to a degree objectionable to a reasonable person establishes liability. No publication is required to establish liability.
*Must be a place where P would have a reasonable expectation of privacy.
False Light
Right to Privacy
P must prove that the D (1) Made public facts about the P that; (2) Placed the P in a false light; (3) Which false light would be highly offensive to a reasonable person.
Many jurisdictions also require P prove actual malice by the D (knowledge that the statement is false or acting with reckless disregard as to the truth or falsity of the statement). [A statement that is misleading causes liability.]
Public Disclosure of Private Facts
Right to Privacy
P must show that the D (1) Gave publicity to a matter concerning the private life of another; AND (2) The matter publicized is of a kind that would be highly offensive to a reasonable person; AND (3) the matter is not of legitimate concern to the public.
*(1)The information must be communicated at large so that it is substantially certain to become one of public knowledge (widespread disclosure).
Is disclosure of material that is from decades ago a matter of public interest?
Right to Privacy
Public disclosure of dated materials such as a criminal conviction from decades ago is a matter of public interest and doesn’t create liability also this tort is disfavored because it is concerning true statements and is at odds with the 1st amendment.
Damages for Public Disclosure of Private Facts
P does not need to prove special damages for any of the 4 torts, emotional distress and mental distress is sufficient.
Defenses for Right to Privacy
- Absolute Privilege
- Qualified Privilege
- Consent
- Newsworthiness
- Matter in Public Record
Remember that truth is not a defense in invasion of privacy cases like it is for defamation.
Absolute Privilege
Defenses
Only applies to False Light & Public Disclosure of Private Facts.
Based on the identification of the speaker these statements are qualified (a) in the course of a judicial proceeding by any participants (i.e., judge, lawyer, witnesses – must be related to proceedings); (b) in the course of legislative proceedings (a legislator may say anything no limitation); (c) between husband and wife; (d) required publications by newspaper, TV, or radio by a political candidate.
Qualified Privilege
Defenses
Only applies to False Light & Public Disclosure of Private Facts.
Statements made under the following circumstances are subject to conditional privilege: (a) in the interest of the D, such as defending their reputation; (b) in the interest of the third party receiving the statement; or (c) affecting an important public interest.
How is the defense of Qualified Privilege lost?
Defenses
Qualified privilege is lost if made with actual malice (modern trend – knowledge that the statement is false or acting with reckless disregard as to the truth or falsity of the statement) (common law malice – express malice or hatred, ill will, spite).
Who has the burden of proving Qualified Privilege
Defenses
The burden is on the D to prove the privilege exists. Then the burden is on the P to prove the privilege has been abused.
Consent
Defense
Is a defense to all invasion of privacy actions, however mistake as to consent negates the defense no matter how reasonable the mistake.
Newsworthiness
Must be of public interest
Matter in Public Record
no rule statement.
