Intentional torts: invasion of privacy

Question 1

The right of privacy

Answer 1

The right of privacy applies to natural persons, not corporations.

The right terminates upon the death of the plaintiff.

Question 2

Intrusion upon seclusion

Answer 2

Intrusion upon exclusion is:

• Intrusion, physically or otherwise, into the plaintiff’s private affairs
• in a way that is objectionable to a reasonable person.

Qualifying intrusions include phone tapping, hacking into medical records, and peeping toms.

Question 3

False light

Answer 3

False light requires that

(1) The defendant makes public facts about the plaintiff;
(2) That place the plaintiff in a false light;
(3) Which would be highly offensive to a reasonable person.

For example, there may be a false light claim against a person who writes a story about one person but includes a mug shot of someone else.

Question 4

Appropriation of the right to publicity

Answer 4

Misappropriation of the right to publicity requires that the plaintiff prove that:

(1) The defendant appropriated the plaintiff’s name, likeness, or identity;
(2) For the defendant’s commercial advantage;
(3) Without the plaintiff’s consent; and
(4) Causing injury to the plaintiff.

The appropriation must be exploitative but need not be commercial.

Question 5

Public disclosure of private facts

Answer 5

To establish a claim for public disclosure of private facts, the plaintiff must prove that:

(1) The defendant publicized a matter concerning the private life of the plaintiff; and
(2) The matter publicized:
(a) is highly offensive to a reasonable person; and
(b) is not of legitimate concern to the public.

Question 6

Defenses to privacy torts

Answer 6

Defenses include:

(1) Qualified and absolute privilege with respect to “false light” and “public disclosure” claims;
(2) Consent.

Truth, however, is not a defense to privacy torts.

Question 7

Damages

Answer 7

Emotional or mental distress suffices for damages purposes—i.e., a plaintiff need not prove special damages.

Question 8

Public disclosure of private facts: publicity requirement

Answer 8

The publicity requirement requires far broader dissemination of information than is required for defamation.

It must be communicated at large or to so many people that it is substantially certain to become public knowledge.

Question 9

Public disclosure of private facts: legitimate public concern

Answer 9

Courts broadly construe “legitimate public concern.” Consequently, the tort is difficult to establish.

Question 10

Intrusion upon seclusion: photographs in a public place

Answer 10

Taking a photograph of a person in a public place generally is not considered to be an unreasonable intrusion.

There is an exception, however, if the photograph is taken in a manner that reveals information that the plaintiff expects to keep private, even in public.