Privacy


The right of privacy is 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[i].

A person has an actionable right to be free from the invasion of privacy[ii].  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.

Thus, the right of privacy is[iii]:

  • 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.

 

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[iv].  Such statutes prohibit the use of a person’s name, portrait or picture for advertising or trade purposes without prior written consent.  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[v].

There are two types of privacy interests that may be constitutionally protected[vi]:

  • the individual interest in avoiding disclosure of personal matters, and
  • the interest in independence in making certain kinds of important decisions.

 

However, 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[vii].

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.

[i] Strutner v. Dispatch Printing Co., 2 Ohio App. 3d 377 (Ohio Ct. App., Franklin County 1982).

[ii] Black v. Aegis Consumer Funding Group, Inc., 2001 U.S. Dist. LEXIS 2632 (S.D. Ala. Feb. 8, 2001).

[iii] Hogin v. Cottingham, 533 So. 2d 525 (Ala. 1988).

[iv] Clark v. Elam Sand & Gravel, Inc., 4 Misc. 3d 294, 296 (N.Y. Sup. Ct. 2004).

[v] McGraw v. Watkins, 49 A.D.2d 958 (N.Y. App. Div. 3d Dep’t 1975).

[vi] Arakawa v. Sakata, 133 F. Supp. 2d 1223 (D. Haw. 2001).

[vii] Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (U.S. 2004).

Inside Privacy