Common Law Right to Privacy


Privacy is the right to be let alone or to be free from misuse or abuse of one’s personality.  The right of privacy is the right to be free from unwarranted publicity, to live a life of seclusion, 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].  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.

The tort of invasion of privacy is 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 tort of invasion of privacy is not intended to be duplicative of some other tort.  To a certain extent, this is a tort in which the focus is the right of a private person to be free from public gaze.

The tort of invasion of privacy consists of four distinct wrongs[iii]:

  • the intrusion upon the plaintiff’s physical solitude or seclusion;
  • publicity which violates the ordinary decencies;
  • putting the plaintiff in a false, but not necessarily defamatory position in the public eye; and
  • the appropriation of some element of the plaintiff’s personality for a commercial use.

 

In several states the right of privacy is pronounced by statute, though the statutory right may be limited to a right to protection against appropriation of one’s name or likeness.

In only a few states have the courts definitely denied the existence of any common-law right of privacy, the invasion of which, independently of other considerations, will constitute a tort.

Under some jurisdictions, the right of privacy is based on the federal constitutional guaranties.  Other jurisdictions have drawn a sharp distinction between one’s constitutional right of privacy, which defends the individual against government action, and the right to privacy that is involved in a tort action.

While the constitutional right of privacy provides a limitation on governmental action, it is the right of privacy under tort law which confers personal rights on an individual as against other individuals.

Some other jurisdictions have suggested natural law as the basis of the right of privacy.  Some courts expressly recognize that the right of privacy has derived from the root of some already established right, such as a property right.  Also, there is a public policy interest in protecting the reputations of citizens.

By virtue of the Fourth, Fifth, and Fourteenth Amendments to the Federal Constitution, the common-law cause of action for invasion of privacy includes the right to be left alone.  However, the Constitution of the U.S. protects privacy from governmental invasion and protection of a person’s general right of privacy, that is, his or her right to be left alone by other people, is left largely to the law of the individual states.

Two separate standards exist for finding the tort of an invasion of privacy[iv]:

  • If there has not been public or commercial use or publication, then the proper standard is whether there has been an intrusion upon the plaintiff’s physical solitude or seclusion, or a wrongful intrusion into one’s private activities in such manner so as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary sensibilities.
  • If there has been public or commercial use or publication of private information, then the proper standard is whether there has been unwarranted publicity, unwarranted appropriation or exploitation of one’s personality, publication of private affairs not within the legitimate concern of the public, an intrusion into one’s physical solitude or seclusion, the placing of one in a false but not necessarily defamatory position in the public eye, or an appropriation of some element of one’s personality for commercial use.

 

A provision in the state constitution that no person should be disturbed in his/her private affairs, nor his/her home invaded, without authority of law, is not intended to give rise to a private cause of action between private individuals, but is intended as a prohibition on the state.

[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] Norris v. Moskin Stores, Inc., 272 Ala. 174 (Ala. 1961).

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