Invasion of Privacy

Question 1

Invasion of Privacy

Appropriation of name or likeness

Answer 1

To recover damages for an invasion of privacy claim based on appropriation of name or likeness (ie, misappropriation of the right to publicity), the plaintiff must prove that the defendant:

1) used the plaintiff’s picture, name, or likeness without authorization, AND
2) obtained a benefit (typically a commercial advantage—eg, advertising) from that use.

Question 2

Appropriation & False Light

Answer 2

Appropriation and false light are invasion of privacy torts, along with intrusion upon seclusion and disclosure

1) Appropriation — use of P’s name or likeness for commercial purposes (e.g., promotion or advertisement) without P’s consent
* Newsworthiness exception — no liability for use of P’s name or likeness for the purpose of reporting news
2) False light — widespread publication of a falsehood or material misrepresentation about P that would be highly offensive to a reasonable person

• Includes mischaracterization of P’s views or conduct
• Matters of public concern — D must have actual malice or reckless disregard for the truth of the matter publicized

Note — this is the same as the constitutional considerations for defamation

• No newsworthiness exception
  3) Defenses:
  i) Consent — valid defense, although D may be liable if his actions exceed the consent given
• Mistake as to if consent was given is not a valid defense
  ii) Privilege — may be available as a defense to false light if D has an absolute or qualified privilege to publication

_***Truth is not a valid defense to invasion of privacy claims***_

Question 3

Intrusion upon Seclusion & Disclosure

Answer 3

Intrusion upon seclusion and disclosure are invasion of privacy torts, along with appropriation and false light

1) Intrusion upon seclusion — intrusion upon P’s private affairs in a manner that would be highly offensive to a reasonable person

Requirements:

I. P must have a reasonable expectation of privacy

• No reasonable expectation of privacy in public

II. Intrusion must be highly offensive — e.g., peeping, eavesdropping, or using hidden cameras in P’s domain

• No newsworthiness exception
  2) Disclosure — public disclosure of P’s private information

Requirements — disclosure must be:

I. Highly offensive to a reasonable person

• Public activities are not objectionable
• E.g., D announces that the mayor frequents strip clubs — no liability b/c the acts occur in public

II. Publicized — made available to a public audience

• Newsworthiness exception — no liability if private facts are newsworthy
  3) Defenses —
• consent is a valid defense
• privilege is a valid defense to disclosure