Privacy Law Flashcards
Four Separate Areas of Privacy Law
- Placing an individual in a false light.
- Publication of private information.
- Intrusion upon an individual’s solitude.
- Appropriation of name or likeness without permission
Who enjoys privacy rights?
Only natural persons - not companies/entities.
False Light
Liability for publishing material that places an individual in a false light if:
The false light in which the individual was placed would be offensive to a reasonable person; and
The publisher was at fault when the publication was mad
Public Disclosure of Private Facts
Focuses on what is published (not how the information was obtained).
Elements:
-Publicity was given;
-To a matter concerning an individual’s private life;
-Not of legitimate public concern; and
-The publication would be highly offensive to a reasonable person.
Publicity
- Must be a public disclosure of the private fact.
- Different from “publication” element of defamation.
- Must be disseminated to the public at large or to enough persons that the matter becomes public knowledge.
Private Fact
- Material publicized must actually be private.
- No liability for publication of matters already in public domain.
(Anything that happened in public view is fair game.
Matters of public record are fair game.)
Legitimate Public Concern
- Disclosure must involve a private matter that is of no legitimate interest to the public.
- Homicides, arrests, police raids, suicides, marriages and divorces, accidents, fires, rare diseases, incest, rape are all matters of public concern.
- Line drawn when publicity ceases to be giving of important information and “becomes a morbid and sensational prying into private lives for its own sake.”
Highly Offensive
Reasonable person standard
Intrusion upon seclusion
- Prohibits physical and other intrusions upon the seclusion or private affairs of others if that intrusion would be highly offensive to a reasonable person.
- Focuses exclusively on the act of intrusion or how information is gathered—not on how the information is used or what is published.
Intrusion Element
Intrusion doesn’t need to be actual and physical.
Entering a person’s home, hotel room, or hospital room without consent.
Opening another’s mail or personal records.
Tapping another’s telephone.
Intercepting a cellular telephone conversation.
Photography with a telephoto lens.
Eavesdropping/hidden microphones.
Private and Offensive
Thing or place into which intrusion has been made must ordinarily be private.
Legitimate, reasonable expectation of privacy.
No protection from being observed or photographed in public place.
Houses and bedrooms are considered private.
No protection of public records.
Intrusion must be highly offensive to the reasonable person.
Appropriation and publicity
One cannot use another’s identity for commercial use or trade purposes without consent.
Encompasses both right to privacy (feelings) and right to publicity (money).
Unlike intrusion, publication of private facts, and false light, the right to publicity protects property rights.
Possible in Texas and other states to pass property right on to heirs or assigns at death.
What is prohibited?
Cannot use a person’s identity, name or likeness for a commercial purpose
“Likeness” is anything (photograph, painting, sketch, voice) that would suggest to readers that the plaintiff is identified.
Only a recognizable likeness is required; no identifiable facial recognition needed.
Celebrity look-alikes/sound-alikes NOT OK.
Commercial Purpose
Defendant must be seeking to obtain some level of pecuniary advantage.
The following don’t count:
Plays, books, film, radio programs, or television programs;
Magazines or newspaper articles;
Material of political or newsworthy value;
Parodies or social commentary;
Single and original works of fine art; and
Advertisements or commercial announcements concerning any of these uses (incidental use)
Consent
Consent is a defense to appropriation Exceptions to consent: Dated consent Capacity Substantial alterations from image upon which consent was originally granted
