The Torts of Invasion of Privacy
Invasion of Privacy Torts
The law protects people against many types of harms, including harm to one’s personal space and private life. Infringing on these interests is known as invasion of privacy. Invasion of privacy has been divided into four distinct categories. Each category covers a different aspect of the right to privacy and personal identity but they are all geared towards protecting the right ‘to be left alone’.
These four categories are:
- intrusion into seclusion,
- appropriation of name or likeness,
- public disclosure of private facts, and
- placing a person in a false light.
Intrusion into Seclusion
Intrusion upon seclusion is what people commonly think of as “invasion of privacy.” Intrusion upon seclusion occurs when someone intentionally intrudes into the private affairs of another person. The legal standard for intrusion upon seclusion requires that the intrusion be intentional and highly offensive to a reasonable person.
The most straightforward case is when the victim is in a private location, such as a private home or hotel room. If an intruder infringes on these areas by planting a camera, peeping or otherwise violating the privacy of the area, that is a form of invasion of privacy. Another area where intrusion into seclusion has been litigated is in the work place. Although people in a work setting are aware that others may hear what they discuss, there is an expectation that discussions among colleagues at work will not be surreptitiously recorded. So, the use of secret electronic surveillance can be considered an intrusion into seclusion under normal circumstances.
Intrusion upon seclusion is not limited to cases of physical intrusion. The principle of invasion of privacy extends into any sphere in which an ordinary person could reasonably expect that others should be excluded. This form of intrusion includes seeking private information of a confidential nature, even if the information is not publicly disseminated.
In Nader v. General Motors, General Motors engaged in a campaign of intimidation against a popular critic of their practices. The company employed people to follow him around in public and conducted surveillance of his activities. The court found that General Motors’ committed an intrusion into seclusion when agents of the corporation spied on the plaintiff in a bank, looking over his shoulder to see his private financial records. This amounted to intrusion upon seclusion because the conduct was designed to elicit information which was not available through normal inquiry or observation. Furthermore, the act of looking over an individual’s shoulder to see his private financial records would be highly offensive to a reasonable person.
Appropriation of Name or Likeness
The other three categories all involve publicizing private facts about someone else for personal benefit or to harm the other person. Unlike intrusion into seclusion, publication of something private is a necessary element for each. This also means that each of these categories is impacted by freedom of speech because they all involve forms of expression.
Appropriation of name or likeness occurs when someone publicly uses the name or likeness of another person for her own benefit. “Benefit” is broadly defined, but generally refers to using people’s name or likeness for “advertising purposes” or “purposes of trade.”
The law views a person’s public image as something which should remain under the person’s control. A person may license the right to use her name or likeness, but unauthorized usage is considered an illegitimate appropriation.
For example, the unauthorized use of a celebrity’s picture on a billboard to advertise a commercial interest or product is misappropriation. However, appropriation actions are not limited to celebrities. Anyone whose name or likeness is used for commercial purposes without their consent may potentially have a cause of action for misappropriation.
There is, however, an exception when the name or image is “newsworthy” as prohibiting media outlets from displaying images or using names when reporting or commenting on the news would likely violate the “freedom of the press” guarantee of the First Amendment. The newsworthiness exception applies even if the organization is a for-profit business. This is how newspapers and other media can print the names and publish images of people in the news without asking for permission.
Finally, the First Amendment may also protect creative expressions which use recognizable identities as features of the creative works. In one case, DC Comics published a comic featuring characters who were easily identifiable as the brothers Johnny and Edgar Winter, who are popular musicians. The comic drawing mimicked their distinctive appearance, and referred to the characters as Johnny and Edgar Autumn. The court ruled that such depictions are not considered misappropriation. The court reasoned that the First Amendment protected DC Comics’ actions because these actions were protected creative expressions that were “something more” than mere celebrity likeness or imitation. Satire works that comment on or even lampoon politicians or other celebrities rely on similar grounds.
Public disclosure of private facts is the publication of the private affairs of another person when the disclosures would be highly offensive to a reasonable person. For example, a creditor puts a notice in a store owner’s window saying the owner owes money and hasn’t paid.
This is different from defamation in that the published material in question may be true, but is especially private. The publication requirement is far greater than it is for defamation. Merely telling a third party is not enough. The private facts must be broadcast to a broad audience.
If the matter is the subject of legitimate public concern, then the First Amendment’s freedom of speech and freedom of the press guarantees protect the publication from lawsuits. Because of the complexity of determining what is a public concern, some jurisdictions don’t recognize this type of invasion of privacy, though excessive disclosure of facts that are truly private can be actionable under the tort of intentional infliction of emotional distress.
The question of whether a story about a public figure is newsworthy is complex and fact-specific. For example, reporting on a secret medical condition of an actor may not be protected because the actor’s health may not be of public concern beyond mere curiosity, while the secret medical condition of a high-ranking elected official might be of legitimate public concern.
In one case, a woman won a suit against a movie studio for the publicity of facts regarding her private life, when the studio made a movie about her past as a prostitute. However, in another case though, a magazine published a ‘Where Are They Now?’ article about a formerly well-known child prodigy. Although the man had withdrawn completely from public life and sought privacy, the court determined that his life story was still a legitimate public interest. Seemingly inconsistent results from different jurisdictions underscore the complexity of this issue.
Invasion of privacy under the “false light” category means stating what may be technically truthful or opinion-based information, but in a manner indicating to a reasonable person that something negative and false is true about the target. Though similar to defamation, this tort does not require assertions that are false.
For example, a newspaper published a story on a family dealing with a murder and its impact on the victim’s family. The story described the family house as “messy” and “in a state of disarray”, and the family as “poor.” The family sued because of the inaccurate depiction in the story made them objects of pity and ridicule. The court agreed that such a portrayal could constitute invasion of privacy on false light grounds.
The Supreme Court had placed similar limitations on “false light” as apply to defamation actions. Where the plaintiff is a celebrity or public official, he must demonstrate that the defendant knew that implications were false or acted in reckless disregard of the truth.
While invasion of privacy takes many forms, the common denominator is that private matters are infringed on or made public. The cause of action thus serves as a mechanism by which civil courts help people maintain their fundamental rights to privacy.
 S.D. Warren & L.D. Brandeis, "The Right to Privacy" (1890) 4 Harv. L. Rev. 193 at 196.
 Restatement (2nd) of Torts, §652(b).
 Restatement (2nd) of Torts, §652(b) comment b.
 Sanders v. ABC, 978 P.2d 67, 85 Cal. Rptr. 2d 909, 20 Cal. 4th 907 (1999).
 Nader v. Gen. Motors Corp., 255 N.E.2d 765 (1970).
 Restatement (2nd) of Torts, §652(c).
 Case of Flake V. Greensboro News Co., 195 S.E. 55, 212 N.C. 780 (1938).
 Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
 Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001).
 Winter v. DC Comics, 69 P.3d 473, 134 (2003).
 Restatement (2nd) of Torts, §652(d).
 Restatement (2nd) of Torts, §652(d) comment a.
 Hall v. Post, 372 S.E.2d 711, 323 N.C. 259 (1988).
 Melvin v. Reid, 297 P. 91, 112 Cal. App. 285, 112 Cal. 285 (1931).
 Sidis v. FR Pub. Corporation, 113 F.2d 806 (2d Cir. 1940).
 Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S. Ct. 465, 42 L. Ed. 2d 419 (1974).
 Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534 (1967).