Invasion of Privacy

Question 1

What is the very broad, general rule for invasion of privacy?

Answer 1

An action for invasion of privacy is based on the principle that the plaintiff has a right to be left alone.

Question 2

What are the four types of invasion of privacy?

Answer 2

1. Public disclosure of private facts
2. Intrusion upon seclusion
3. False light
4. Appropriation of likeness

Question 3

What is the actual damages requirement for actions under invasion of privacy?

Answer 3

Actual damages are those for actual harm suffered by the plaintiff, so excluding nominal damages and punitive damages. Actual damages can be either specific or general. In other words, you don’t have to prove one until you get to the other, as is required in some other actions.

Question 4

What are the 6 elements for public disclosure of private facts?

Answer 4

1. DF gave publicity
2. A matter concerning the private life of the plaintiff
3. Would be highly offensive to a reasonable person
4. Not a legitimate concern to the public
5. factual and proximate cause
6. of plaintiff’s actual damages

Question 5

What is the rule statement for public disclosure of private facts?

Answer 5

For a claim of public disclosure of private facts, the plaintiff must prove, by a preponderance of the evidence, that the defendant gave publicity to a matter concerning the private life of the plaintiff that would be highly offensive to a reasonable person, is not of legitimate concern to the public, and was both the factual and proximate cause of the plaintiff’s actual damages.

Question 6

What is the publicity requirement for public disclosure of private facts and false light?

Answer 6

Publicity means the matter is made public by communicating it to the public at large or in such a way that the matter msut be regarded as substantially certain to become one of public knowledge, which may be oral, written, or by some other means.

Question 7

What is the private life requirement for public disclosure of private facts?

Answer 7

This tort deals with the private life of an individual, not facts communicated about the plaintiff which are already publicly known or matters of public record such as birth date, marriage records, or military records. However, if the matter is not something open to the public inspection, like tax returns, then there is an invasion of privacy if the other elements are met.

Question 8

What is the highly offensive requirement for public disclosure, false light, and instrusion?

Answer 8

Whether or not something is highly offensive to an ordinary, reasonable person is an objective test, but also does have a subjective requirement of whether the plaintiff was truly offended by the invasion of privacy.

Question 9

What is the legitimate public concern requirement for public disclosure of private facts?

Answer 9

In general, legitimate public concern extends not only to news, in the sense of reports of current events or activities, but also to the use of giving information to the public for purposes of education, amusement, or enlightenment.

Question 10

What is the public persons exception to public disclosure of private facts?

Answer 10

An exception to the general rule is where a person is considered a public person, such as a politician, celebrity or public figure, whose private lives are a public interest, and as such, are afforded no protection under the right to privacy for public disclosure of private facts.

Question 11

What is a partial public person for purposes of public disclosure of private facts? What rights are they afforded under public disclosure of private facts?

Answer 11

Sometimes a person may become famous for one particular thing. If the disclosure has nothing to do with why the public person is a public person, then it may be subject to an action under this claim.

Question 12

What are the 5 elements of intrusion upon seclusion?

Answer 12

1. Intent
2. Prox and factual cause
3. Intrusion
4. Solitude or seclusion of PL
5. Private matter
6. Highly offensive to reasonable person

Question 13

What is the rule statement for intrusion upon seclusion?

Answer 13

For a claim of intrusion upon seclusion, the plaintiff must prove, by a preponderance of the evidence, that the defendant intentionally caused an intrusion upon the solitude or seclusion of the plaintiff and that the matter was a private one and that the intrusion would be highly offensive to a reasonable person.

Question 14

What is the intent requirement for intrusion upon seclusion?

Answer 14

The plaintiff must prove that the defendant intended to intrude upon the plaintiff, also known as specific intent, or was substantially certain to intrude upon anyone, also known as general intent.

Question 15

What is the intrusion requirement?

Answer 15

The intrusion is the act, the tortious conduct, regardless of the content of information obtained or whether information is obtained at all. No physical trespass is required for tortious intrusion. Further, the information obtained does not need to be communicated to anyone.

Question 16

What is the solitude or seclusion of the plaintiff requirement?

Answer 16

Generally, the plaintiff’s solitude or seclusion exists where a plaintiff has a reasonable expectation of privacy. If the information is obtained in public, it is generally required that the intrusion be made under extraordinary means.

Question 17

What is the private matter requirement for instrusion upon seclusion?

Answer 17

The matter upon which the defendant intrudes must be a private one. For example, if the plaintiff conducts the action in public or the information is readily accessible via internet search, it is generally not considered to be private.

Question 18

How does consent affect a claim of intrusion upon seclusion?

Answer 18

Consent to an entry is often given legal effect even though the entrant has intentions that, if known to the owner of the property, would cause the owner to revoke that consent. The focus is on whether the defendant fraudulently led the plaintiff into engaging in a desired transaction. If the type of transaction that occurs is what the plaintiff desired (albeit for a different reason) then there is no liability. If the type of interaction that occurred was not what was desired, then there will be liability.

For example, if a business is open to the public, and a defendant pretends to be a customer and behaves like any other customer would ,then there is no liability.

Question 19

What are the 6 elements of false light?

Answer 19

1. Publicity to matter concerning plaintiff
2. Placed plaintiff in false light
3. Highly offensive to reasonable person
4. DF acted with actual malice
5. Factual and proximate cause
6. Actual damages

Question 20

What is the rule statement for false light?

Answer 20

To prevail in an action for false light, the plaintiff must prove, by a preponderance of the evidence that the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff in a false light that would be highly offensive to a reasonable person; that the defendant acted with actual malice; and that the defendant’s actions were both the factual and proximatecause of the plaintiff’s actual damages.

Question 21

What is the false light requirement for false light?

Answer 21

False light is a false inference that can be inferred by the defendant’s publicity of the matter. False light can be statements indicating the plaintiff took actions he/she did not take or statements indicating the plaintiff holds vies he/she does not hold.

Question 22

What is the actual malice requirement for false light?

Answer 22

Actual malice is present where the defendant had knowledge of or reckless disregard as to the falisty of the publicized matter and the false light the plaintiff would be placed in.

Question 23

What happens to the actual malice standard for false light if the action is by a private individual against a private individual?

Answer 23

For a private individual suing another private individual over a matter of private concern, negligence is enough.

Question 24

What are the 6 elements of appropriation of likeness?

Answer 24

1. Intent
2. Plaintiff’s name, likeness, indicia
3. For trade, commercial or other advantage
4. Without consent
5. Proximate and factual cause
6. Harm

Question 25

What is the rule statement for appropriation of likeness?

Answer 25

To prevail in an action for appropriation of likeness, the plaintiff must prove, by a preponderance of the evidence, that the defendant intentionally used the plaintiff's name, likeness, or other indicia of identity for a trade, commercial, or other advantage without the plaintiff's consent, and that the appropriation was both the factual and proximate of the plaintiff's actual harm.

Question 26

What is the intent requirement for appropriation of likeness?

Answer 26

The plaintiff does not have to prove that the defendant intended to injure the plaintiff or actuall succeeded in obtaining a commercial advantage. Rather, this element focuses on the defendant's specific intent to use the plaintiff's likeness to obtain a commercial benefit. Making explicit references to the plaintiff during the same period of time that the defendant is advertising a product can demonstrate intent.

Question 27

What is the plaintiff's name, likeness, or indicia of identity requirement for appropriation?

Answer 27

To establish that a defendant used a plaintiff's name, likeness, or indicia of identity as a symbol of his identity, the thing used by the defenadnt must be understood by the audience as referring to the plaintiff.

Question 28

What is the for commercial, trade, or other advantage requirement for appropriation?

Answer 28

Using someone's name, likeness, or other indicia of identity to attract consumer attention is sufficient to satisfy the trade, commercial, or other advantage element. The first step toward selling a product or service is to attract the consumers' attention. A commercial advantage will almost always be advertising or something akin to it.

Question 29

What is the consent requirement for appropriation?

Answer 29

Appropriation is an intentional tort, so consent is a defense. That consent, however, can be withdrawn or exceeded.

Question 30

What is the harm requirement for appropriation?

Answer 30

The plaintiff must show that there was actual harm such as lost money, lost contracts, or something similar. Mere humiliation is not sufficient. A defendant found liable can be ordered to pay damages or enjoined from further use.

Question 31

What is the measure of monetary and injunctive relief for appropriation?

Answer 31

The measure of damages is typically the amount the defendant made by using the plaintiff's likeness. Injunctions for this tort cannot be overly broad. They can, at most, only limit the commerce parts, not the expressive ones.

Question 32

What is the expressive use exception to appropriation?

Answer 32

If the defendant uses the plaintiff's name, likeness, or other indicia of identity in an expressive way, the expression is constitutionally protected. This protection covers art, creative works, paradoies. In close quetions where both expression and commerce are involved, look to ssee what the predominant use between the two is.

Question 33

What is the exception to the expressive use exception to appropriation?

Answer 33

When artistic expression takes the form of literal depiction or imitation of a celebrity for commercial gain without adding significant expression, that, without more, shall be sufficient to demonstrate the commercial advantage element of the tort.

Question 34

What is the newsworthy exception to appropriation?

Answer 34

If an event is considered newsworthy, and it is recorded for the news, a cause of action will not lie if the plaintiff is photographed or published at the event.

Question 35

What is the first sale doctrine exception to appropriation?

Answer 35

The first sale doctrine provides that an individual who knowingly purchases a copy of a copyrighted work recieves the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy.

Question 36

What are the two exceptions to the first sale doctrine exception for appropriation?

Answer 36

1. First sale cannot be a successful defense in cases that allege infringing reproduction 2. First sale does not extend to any person who rents, leases, loans, or otherwise acquires a copy from the copyright owner without actually acquiring ownership rights to it.

Question 37

How does appropriation survive death?

Answer 37

The right to publicity can survive death allowing the decedent's heirs to pursue an action for use of the decedent's likeness. However, if the decedent did not capitalize on his or her likeness in life, then the action will not survive in death.