Invasion of Right to Privacy

Question 1

What is Invasion of Privacy?

Answer 1

An umbrella term used for four separate privacy torts. Each one is a separate and distinct tort action.

Question 2

What are the four separate privacy torts?

Answer 2

1) Appropriation of Plaintiff’s Name or Likeness 2) Intrusion into Plaintiff’s Seclusion 3) False Light 4) Public Disclosure of Private Facts

Question 3

What is Appropriation of Plaintiff’s Name or Likeness?

Answer 3

Unauthorized use by defendant of plaintiff’s name or likeness for defendant’s commercial advantage.

Appropriation occurs when a defendant uses a plaintiff’s name, likeness, or image without his or her permission for commercial purposes. When a defendant uses a plaintiff’s name or likeness for a newsworthy purpose, however, this does not fall under the tort of appropriation and can be used as a defense by defendants.

Question 4

Within Appropriation of Plaintiff’s Name or Likeness, what constitutes an Unauthorized use by Defendant?

Answer 4

No consent or contractual agreement with plaintiff

Question 5

Within Appropriation of Plaintiff’s Name or Likeness, what constitutes Of Plaintiff’s Name or Likeness?

Answer 5

Name, picture, or voice

Question 6

Within Appropriation of Plaintiff’s Name or Likeness, what two uses constitute For Defendant’s Commercial Advantage?

Answer 6

1) Used for advertising purpose 2) Endorsement is being used to sell a product or service

Question 7

Within Appropriation of Plaintiff’s Name or Likeness - Commercial Advantage, is mere economic benefit (not in conjunction with promoting a product or service) to defendant alone sufficient?

Answer 7

No

Question 8

Within Appropriation of Plaintiff’s Name or Likeness, what damages and remedies are available?

Answer 8

1) Actual damages 2) Nominal damages 3) Injunction

Question 9

What is Intrusion into Plaintiff’s Seclusion?

Answer 9

An objectionable intrusion by defendant into plaintiff’s private life.

It applies when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another.

Question 10

Within Intrusion into Plaintiff’s Seclusion, by what standard is an “Objectionable” intrusion judged?

Answer 10

Must be objectionable to a reasonable person

Question 11

Within Intrusion into Plaintiff’s Seclusion, what constitutes Intrusion?

Answer 11

Act of prying or intruding

Question 12

Within Intrusion into Plaintiff’s Seclusion, what constitutes plaintiff’s private life?

Answer 12

Intrusion into plaintiff’s private place, conversation or matter.

Question 13

Within Intrusion into Plaintiff’s Seclusion, need the plaintiff be aware of the intrusion at the time it is occurring?

Answer 13

No

Question 14

Within Intrusion into Plaintiff’s Seclusion, are photos taken in a public place actionable?

Answer 14

No

Question 15

What is False Light?

Answer 15

An objectionable publication by defendant that places plaintiff in a false light.

False light places the plaintiff in a “false light” that would be highly offensive to a reasonable person; and the defendant was at fault in publishing the information.

Question 16

Within False Light, by what standard is an “Objectionable” publication judged?

Answer 16

Must be objectionable to a reasonable person

Question 17

Within False Light, what constitutes Publication?

Answer 17

1) Must be to the public (more than one person) 2) Wide dissemination

Question 18

Within False Light, what constitutes False Light?

Answer 18

1) Views the plaintiff does not hold 2) Actions the plaintiff did not take

Question 19

Within False Light, with respect to the First Amendment, what mens rea must be proven if the matter is in public interest?

Answer 19

Malice on defendant’s part must be proved

Question 20

What is Public Disclosure of Private Facts?

Answer 20

An objectionable public disclosure by defendant of private facts about plaintiff.

Occurs when a person gives publicity to a matter that concerns the private life of another, a matter that would be highly offensive to a reasonable person and that is not of legitimate public concern.

Question 21

Within Public Disclosure of Private Facts, by what standard is an “Objectionable” disclosure judged?

Answer 21

Must be objectionable to a reasonable person

Question 22

Within Public Disclosure of Private Facts, what constitutes Public Disclosure?

Answer 22

1) Must be to the public (more than one person) 2) Wide dissemination

Question 23

Within Public Disclosure of Private Facts, what are the important elements concerning Private Facts?

Answer 23

1) Public record is not a private fact 2) Fact may be true and there still may be liability

Question 24

Within Public Disclosure of Private Facts, First Amendment Limitations probably apply if matter is one of:

Answer 24

Public Interest

Question 25

Within Invasion of Privacy, what constitutes a proper plaintiff?

Answer 25

The right of privacy is a personal right and does not extend to members of a family

Question 26

Does the right of privacy survive the death of plaintiff or is it assignable?

Answer 26

No

Question 27

Is the right of privacy applicable to corporations?

Answer 27

No

Question 28

What are the damage requirements under Invasion of Privacy?

Answer 28

Emotional distress and mental anguish are sufficient damages (with no need to prove special damages).

Question 29

What three defenses are available for Invasion of Privacy?

Answer 29

1) Consent (reasonable mistake as to consent is not a valid defense 2) Defamation defenses of Absolute and Qualified Privilege 3) Truth (only for False Light)