In an increasingly connected and crowded world, the courts and legislatures have developed a relatively new concept-a person’s right to privacy. This is a particularly “Western” concept, founded on the Enlightenment view of the individual being the focus of the society and possessing rights to live and act without interference from government so long as society is protected from unreasonable acts. In most of Asia and much of the Third World, this concept is not considered a high priority.
The right of privacy is, most simply, the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. Strutner v. Dispatch Printing Co., 2 Ohio App. 3d 377 (Ohio Ct. App., Franklin County 1982).
A person has an actionable right to be free from the invasion of privacy. Black v. Aegis Consumer Funding Group, Inc., 2001 U.S. Dist. LEXIS 2632 (S.D. Ala. Feb. 8, 2001). An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.
It also includes, usually by statute, a Constitutional right to be left alone from governmental intrusion into one’s private affairs, though the rights and the needs of the government to provide protection to society are balanced.
This article shall review the basic concepts of the rights to privacy.
The Basic Law:
The right of privacy is:
- the right of a person to be free from unwarranted publicity,
- the unwarranted appropriation or exploitation of one’s personality,
- the publicizing of one’s private affairs with which the public has no legitimate concern, or
- the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.
See Hogin v. Cottingham, 533 So. 2d 525 (Ala. 1988).
The right of privacy has two main aspects:
- the general law of privacy, which affords a tort action for damages resulting from an unlawful invasion of privacy; and
- the constitutional right of privacy which protects personal privacy against unlawful governmental invasion.
Invasion of privacy is a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his/her private affairs, discloses his/her private information, publicizes him/her in a false light, or appropriates his/her name for personal gain.
Under some jurisdictions, the right to privacy is governed exclusively by statutes and such states have no common law right of privacy. Such statutes prohibit the use of a person’s name, portrait or picture for advertising or trade purposes without prior written consent. See the article on copyright which discusses commercial protection of such identity in more detail. Statutes also provide that injunctive relief and damages may be recovered by such persons whose name, portrait or picture is used for advertising purposes or for the purposes of trade without consent. McGraw v. Watkins, 49 A.D.2d 958 (N.Y. App. Div. 3d Dep’t 1975).
Constitutional Right to Privacy
There are two types of privacy interests that may be constitutionally protected:
- the individual interest in avoiding disclosure of personal matters, and
- the interest in independence in making certain types of important decisions.
Note that the statutory privacy right protected by 5 U.S.C.S. § 552(b)(7)(C) goes beyond the common law and the U.S. Constitution. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (U.S. 2004).
The privacy statute is to be strictly and narrowly construed because it is in derogation of the common law and semi penal in nature. The liberal construction of the right of privacy provisions is necessarily subject to constitutional limitations, and accordingly, such sections must be accorded an interpretation which avoids constitutional infirmities.
Violation of the Right to Privacy:
Invasion of privacy is the considered the intrusion upon, or revelation of, something private. Huskey v. National Broadcasting Co., 632 F. Supp. 1282 (N.D. Ill. 1986). One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his/her private affairs or concerns, is subject to liability to the other for invasion of privacy. Jackson v. Playboy Enterprises, Inc., 574 F. Supp. 10 (S.D. Ohio 1983).
The law of privacy consists of four distinct types of invasion. The right of privacy is invaded when there is:
- unreasonable intrusion upon the seclusion of another,
- appropriation of the other’s name or likeness,
- unreasonable publicity given to the other’s private life, and
- publicity which unreasonably places the other in a false light before the public.
See Klipa v. Board of Education, 54 Md. App. 644 (Md. Ct. Spec. App. 1983)
An invasion of the right of privacy by any of the above four courses of conduct may give rise to a cause of action and, on occasion, there may be an overlapping or concurrent invasion by any or all of the above means working toward the injury of the plaintiff.
Liability for a claim of invasion of privacy by intrusion must be based upon an intentional interference with the plaintiff’s interest in solitude or seclusion, either as to his/her person or as to his/her private affairs or concerns. Uranga v. Federated Publs., Inc., 138 Idaho 550 (Idaho 2003).
Invasion of privacy by intrusion does not depend upon just any publicity given to the person whose interest is invaded or to his/her affairs. To be actionable, the prying or intrusion into the plaintiff’s private affairs must be of a type which is offensive to a reasonable person.
The Restatement of Torts clearly provides that the acts constituting the invasion of privacy must be highly offensive to a reasonable person. However, in the case of wrongful appropriation of one’s name or likeness restatement provisions provides that the act need not be highly offensive to constitute invasion of privacy.
The unwarranted publication of a person’s name or likeness may constitute the most common means of invasion of the right of privacy. The protection of name and likeness from unwarranted intrusion or exploitation is the heart of the law of privacy. Lugosi v. Universal Pictures, 25 Cal. 3d 813 (Cal. 1979).
One who appropriates to his/her own use or benefit the name or likeness of another is subject to liability to the other for invasion of his/her privacy. However, merely suggesting certain characteristics of the plaintiff, without literally using his/her name, portrait, or picture, is not actionable. To constitute an invasion of the right of privacy, the use of a name or likeness must amount to a meaningful or purposeful use of the name of a person. Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985).
Note that there are various business torts connected with theft of trade identity that may exist independent of the right to privacy. See our article on protection of such property rights in our copyright article.
Mere incidental commercial use of a person’s name or photograph is not actionable under the Civil Rights Law. Some meaningful or purposeful use of the name is essential to the statutory cause of action. Further, it is a person whose name is used for advertising purposes or for the purposes of trade who has a cause of action.
Tortuous liability for appropriation of a name or likeness is intended to protect the value of an individual’s notoriety or skill. Moglen v. Varsity Pajamas, Inc., 13 A.D.2d 114 (N.Y. App. Div. 1st Dep’t 1961). Thus, in order that there may be liability for such appropriation, a defendant must have appropriated to his/her own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness.
Public disclosure of private facts occurs when a person gives publicity to a matter that concerns the private life of another, but it must be a matter that would be highly offensive to a reasonable person and that is not of legitimate public concern.
To establish a cause of action for invasion of privacy on the ground of public disclosure of private facts, the courts consider three elements.
- the disclosure of private facts must be a public disclosure.
- the facts disclosed must be private facts, and not public ones.
- the matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities.
See Zieve v. Hairston, 266 Ga. App. 753 (Ga. Ct. App. 2004).
Further in an action for invasion of privacy based on the alleged wrongful disclosure of private facts, the plaintiff must show that the disclosure complained of was actually public in nature. There is no liability when a defendant merely gives further publicity to information about a plaintiff that is already public.
False light/invasion of privacy is one of four types of invasions of privacy and the elements of the false light invasion of privacy are:
- publication of some kind must be made to a third party;
- the publication must falsely represent the person; and
- that representation must be highly offensive to a reasonable person.
See Dominguez v. Davidson, 266 Kan. 926 (Kan. 1999).
Note that the local customs must be considered. The protection afforded to a plaintiff’s interest in his/her privacy must be:
- relative to the customs of the time and place,
- to the occupation of the plaintiff, and
- to the habits of his/her neighbors and fellow citizens.
See TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443 (Cal. App. 2d Dist. 2002).
Legal Actions Based On Invasion of Privacy:
The violation of a privacy right gives rise to a cause of action. Generally, a privacy right violation is a tort and although its violation often assumes a form similar to slander or libel, there are differences between an action for libel and a violation of privacy rights. Smith v. Doss, 251 Ala. 250 (Ala. 1948). For example, in actions for privacy right infringement, truth is not a defense and it is not necessary to allege or prove special damages. A suit may be filed either for recovering damages or for an injunction, where damages do not adequately redress an injury. In some cases, an action for both damages and injunction are allowed in a single case.
In an action for recovering damages for a privacy right violation, a plaintiff must allege the following elements:
- that there was an unwarranted invasion of individual privacy;
- that there was an intentional intrusion on his/her private concerns;
- that publication was without plaintiff’s written consent, where written consent is required; and
- that plaintiff’s name or picture was used for trade or advertising purposes, where privacy invasion is alleged by publication of one’s name or likeness for trade and advertising purposes.
Where a plaintiff alleges intentional intrusion on privacy rights, s/he must also assert that such an intrusion was substantial and highly insulting for a reasonable person[iii]. Tapia v. Sikorsky Aircraft Div., 1998 Conn. Super. LEXIS 1576 (Conn. Super. Ct. May 28, 1998). Further, such an allegation must be supported by sufficient facts that could establish mental suffering, shame, or humiliation to a person of ordinary sensibilities from such disclosure.
In a common law action for commercial misappropriation of plaintiff’s name, a plaintiff must assert the following elements:
- that use of plaintiff’s identity or name by a defendant commercially for defendant’s advantage lacks plaintiff’s consent; and
- that such illegal use had resulted in an injury to plaintiff.
Under statutory law, a plaintiff in an action for commercial violation of a privacy right must assert the following elements:
- that there was a knowing use of plaintiff’s identity or name for advertising purposes; and
- that there was a direct connection between use and commercial purpose.
But there are limits to the right to privacy. In various cases, the following rulings have been made. An allegation that a defendant publicized private facts about a plaintiff to an unspecified number of unknown third persons by making and showing videotapes of a plaintiff and property does not sufficiently allege publicity to state a cause of action for privacy invasion. Similarly, there can be no unwarranted invasion into a privacy right through describing a wedding, even though it is intended to be entirely private. Neither can there be an unwarranted invasion of privacy right by reporting, within a reasonable time, issuance of a marriage license, official recording of a marriage, filing of a divorce action, or granting of a divorce decree, regardless of how anxious the parties involved may be to keep the information from public. These are generally newsworthy events of public or general interest and the press is privileged to report them as news. Aquino v. Bulletin Co., 190 Pa. Super. 528 (Pa. Super. Ct. 1959).
In a false light privacy claim which is similar to the tort of defamation, a plaintiff must assert the following elements:
- that the publicity at issue is about plaintiff;
- that it placed plaintiff in a false light before the public; and
- that there was actual malice.
See International Serv. Assocs. v. Arco Management, 1994 U.S. Dist. LEXIS 15025 (N.D. Ill. Oct. 11, 1994)
Any failure to make a direct allegation of actual publication can make a claim fail. Similarly a failure to plead and prove damages suffered in false light privacy claims can result in dismissal of an action. For example, a failure to identify which specific statement or section in a newspaper article formed the basis of a plaintiff’s claim against a publisher will result in the dismissal of the action.
Who May Sue?
A privacy right is personal in character and it can be asserted only by persons who are injured by an intrusion. A plaintiff must plead and prove that plaintiff’s privacy has been invaded before recovering damages. Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 4th Dist. 1981).
The cause of action is not assignable, and it cannot be maintained by other persons such as an individual’s family members, unless their own privacy is invaded along with that of an individual. Bowling v. Bowling, 1992 U.S. App. LEXIS 18505 (6th Cir. Ky. July 30, 1992). Even a close relative of an injured person cannot recover in an action for privacy intrusion.
However, for misappropriation of one’s name or likeness, an action for invasion of privacy can be maintained by other persons. Nelson v. Maine Times, 373 A.2d 1221 (Me. 1977).
The cause of action dies with the plaintiff. Unless there is a statute authorizing such, an action for privacy invasion cannot be maintained after the death of an individual whose privacy is invaded. Mineer v. Williams, 82 F. Supp. 2d 702 (E.D. Ky. 2000). A cause of action brought by a deceased person’s relatives or representatives for damages based on a posthumous publicity, which involves a decedent’s name or likeness, will not be remedied under law. The privacy invasion of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family, or relatives, whose own privacy rights are not invaded. Hendrickson v. California Newspapers, Inc., 48 Cal. App. 3d 59 (Cal. App. 1st Dist. 1975)
A corporation, institution, organized group, or associations which solicit funds or membership, and partnerships cannot assert privacy right, because a privacy right is purely designed for protecting an individual’s rights related to feelings and sensibilities. However, some courts have observed that a claim for privacy invasion can be asserted by an association. Lowry v. International Brotherhood of Boilermakers, etc., 259 F.2d 568 (5th Cir. Miss. 1958).
In some cases, courts have asserted that limitation on privacy rights for a corporation, partnership, or unincorporated association is only with reference to the four forms of privacy invasion. A cause of action for an exclusive use of its own name or identity receives protection under the law of unfair competition. See Associated Students of University of California v. Kleindienst, 60 F.R.D. 65 (C.D. Cal. 1973).
Similarly, privacy rights do not extend to animals or pets, and a pet owner will have no authority for a cause of action for an unauthorized publication of their pet’s photograph. For example, taking a photograph of plaintiff’s dog without plaintiff’s permission and using such photograph in an advertisement by the defendant will not constitute an invasion of plaintiff’s privacy right, where there was nothing in the photo indicating ownership of the pet.
Who May be Sued?
A state, city council, municipal corporation, religious organization, conspirators and other legal persons as well as natural persons can be sued for an intrusion or invasion to a person’s privacy.
A state can be sued for the following intrusion:
- for an appropriation of a private citizen’s name or likeness for commercial advertising purposes; and
- for disclosing information that was obtained on a condition of confidentiality. Porten v. University of San Francisco, 64 Cal. App. 3d 825 (Cal. App. 1st Dist. 1976).
A city council is liable for the following intrusion:
- for communicating information regarding a property owner, to a federal authority, a credit agency, and a news media. Provided such information was obtained for a proper purpose and there had been no inquiry about plaintiff’s property management; and
- for disclosure of paid informer’s identity.
It is only in some states that suits against a state or local government for intrusion is permitted. A government will be liable for an illegal intrusion by governmental officials. McBriety v. Baltimore, 219 Md. 223 (Md. 1959). An intrusion that forms part of a search conducted by government officials will not make a government liable, if such search had satisfied all ordinary standards of the fourth amendment. Cowing v. City of Torrance, 60 Cal. App. 3d 757 (Cal. App. 2d Dist. 1976).
For example, surveillance of a citizen’s home and car on a specified date by police officers will not infringe a citizen’s fourth amendment right, if the police had surveyed the home from a public area and followed the automobile on public streets and where such citizen did not allege that police illegally entered his/her home and thereby intruded on his/her privacy. Milligan v. City of Laguna Beach, 34 Cal. 3d 829 (Cal. 1983). There is also the issue of government immunity which many states have enacted that prohibit certain causes of actions against the state government. Local state law must be researched before attempting any legal action.
A state will not be liable for privacy intrusion by communicating information, if no malice on the part of a government is pleaded and proved. For example, a state will not be liable for an action brought by an unsuccessful applicant for a post, for releasing information regarding his/her criminal conviction to the public, if the applicant:
- himself/herself had discussed about his/her conviction in a letter to a newspaper;
- criminal conviction record is public information;
- was under probation supervision at the time of his/her employment application; and
- puts forth no evidence about confidential information release to the public.
According to the Civil Rights Act of 1871, a person who deprives the federal right of another person, while acting under color of state law, custom, or usage, can be sued for intrusion. A “person” under this act means local governments, municipal corporations, school boards, legal and natural persons. However, a state is not a person under this statute(!).
Lawsuits can also be brought against a church or religious organization. A cause of action against church officials and clergy will lie for the following:
- if their behavior was unreasonable; and
- if they had intentionally interfered with marital and family relationships of another.
See Snyder v. Evangelical Orthodox Church, 216 Cal. App. 3d 297 (Cal. App. 6th Dist. 1989).
However, a cause of action for privacy violation against a church or religious organization will not lie for the following:
- cases involving employment discrimination by a church;
- cases involving shunning practice; and
- cases where church members expressly consent to accept church discipline.
A cause of action for invasion of privacy entitles the plaintiff to recover damages for the harm to the particular element of his or her privacy that is invaded.
- Thus, one who suffers an intrusion upon his or her solitude or seclusion, may recover damages for the deprivation of his or her seclusion.
- One whose name, likeness or identity is appropriated to the use of another, may recover for the loss of the exclusive use of the value so appropriated.
- One to whose private life publicity is given, may recover for the harm resulting to his or her reputation from the publicity.
- One who is publicly placed in a false light, may recover damages for the harm to his or her reputation from the position in which he or she is placed.
See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 572 (U.S. 1977).
A plaintiff may also recover damages for emotional distress or personal humiliation that he or she proves to have actually suffered. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562. The elements of emotional distress includes anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, and anguish. These are subjects of determination by a jury in an action for invasion of privacy by intrusion, taking into account all of the consequences and events which flow from an actionable wrong.
In this respect, the action for invasion of privacy closely resembles that for defamation. Unlike defamation, where compensation is confined to actual injury, damages for invasion of privacy are extended to presumed or even punitive damages, at least when liability is based on a showing of knowledge of falsity or reckless disregard for the truth. Invasion of privacy is a willful tort which constitutes a legal injury, and damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of a willful invasion of the right of privacy. Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582 (Tex. Civ. App. Corpus Christi 1979).
To recover on a claim for invasion of privacy based on public disclosure of private facts, where recognized, the plaintiff does not have to prove any mental element, but, rather, need only show that the disclosed matter was private and not of legitimate concern to the public, and that disclosure would be highly offensive to a reasonable person. Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997)
Other elements of damages which are properly recoverable include:
- damages for loss of reputation or community status;
- damages for harm to the plaintiff’s “interest in privacy”;
- damages for physical injury or demonstrable pecuniary loss (special damages);
- consortium loss by the spouse of the subject.
See: Douglass v. Hustler Magazine, 769 F.2d 1128 (7th Cir. Ill. 1985); Martin v. Municipal Publications, 510 F. Supp. 255 (E.D. Pa. 1981).
Punitive damages may be recovered for an invasion of the right of privacy under the proper circumstances. One whose right of privacy is unlawfully invaded is entitled to recover substantial damages, although the only damages suffered by him or her resulted from mental anguish. In principle and of necessity, the amount of damages to be awarded in a privacy case rests within the sound discretion of the Trier of facts. In cases involving an unsanctioned appropriation of one’s name or likeness, the measure of compensatory damages is the value of the benefit derived by the person appropriating the other’s name, or the pecuniary loss suffered by the plaintiff whose name has been appropriated.
There is a requirement, as with all damages, to mitigate them reasonably, e.g. to take steps to reduce the damages one is suffering if possible. A willful failure on the part of the plaintiff to mitigate damages from an invasion of privacy will cause the court to reduce damages by an amount corresponding to that which the plaintiff’s correct conduct would have saved. Carafano v. Metrosplash, Inc., 207 F. Supp. 2d 1055 (C.D. Cal. 2002).
The damages are also reduced where the plaintiff is engaged in activity or business which seeks to promote publicity for plaintiff, such as entertainment or sports. In such cases, only adverse publicity and invasion of privacy would likely allow a cause of action.
Further, damages may be mitigated by a showing that the defendant had published a timely and adequate retraction or correction of the objectionable matter in controversy. Prystash v. Best MediumPublishing Co., 157 Conn. 507 (Conn. 1969). Damages may also be mitigated where it is shown that the defendant published the matter with a motive of actually helping the plaintiff.
The “right to be left alone” is one of the most cherished rights in the United States and the laws protecting privacy are an inherent part of those rights. Privacy is not sacrosanct, however, being balanced with the needs and wants of the other citizens and the person’s own actions in perhaps pursuing exposure or encouraging it. The rights exist and damages lie for violation of them, but these cases are fact intensive in most circumstances and have to be carefully evaluated. See our article on Cost Benefit in American Litigation.