One who has established a cause of action for invasion of his or her privacy is entitled to recover damages for:
(a) the harm to his or her interest in privacy resulting from the invasion;
(b) mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
(c) special damage of which the invasion is a legal cause.
A cause of action for invasion of privacy, in any of its four forms, entitles the plaintiff to recover damages for the harm to the particular element of his 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[i].
A plaintiff may also recover damages for emotional distress or personal humiliation that he or she proves to have actually suffered[ii]. Provided, it is of a kind that normally results from such an invasion and it is normal and reasonable in its extent. The elements of emotional distress includes anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, and anguish. These are subjects of legitimate inquiry 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, for invasion of privacy, damages are extended to presumed or punitive damages, at least when liability is not 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[iii].
It frequently has been held that the plaintiff need not plead or prove special damages[iv]. Substantial damages may be awarded for the mental distress inflicted and other probable harm. Nominal damages may be awarded when the evidence negatives any substantial harm[v].
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[vi].
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”[vii];
- damages for physical injury or demonstrable pecuniary loss (special damages)[viii];
- consortium loss by the spouse of the subject[ix].
As for things which do not constitute a proper element of damages in an invasion of privacy case, an invasion of another’s right of privacy by a publication confers no right upon such other to share in the proceeds of the sale of such publication upon the ground that the author has thereby been unjustly enriched. The rationale given for this rule is that it is inconsistent for the plaintiff to seek recovery for an invasion of the right of privacy and in the same suit to claim the right to participate in the profits of the publication[x].
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.
In jurisdictions in which a cause of action brought for invasion of privacy may be maintained in parallel with a cause of action for the same objectionable invasion based on a different theory of recovery, only one recovery may be awarded for a single set of actionable facts, regardless of the multiplicity of theories pleaded for recovery on those facts[xi].
However, 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[xii].
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[xiii]. Damages may also be mitigated where it is shown that the defendant published the matter with a motive of actually helping the plaintiff.
[i] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 572 (U.S. 1977).
[ii] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562.
[iii] Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582 (Tex. Civ. App. Corpus Christi 1979).
[iv] Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945).
[v] Cason v. Baskin, 159 Fla. 31, 30 So. 2d 635 (1947).
[vi] Doe v. Methodist Hosp., 690 N.E.2d 681 (Ind. 1997).
[vii] Jonap v. Silver, 1 Conn. App. 550 (Conn. App. Ct. 1984).
[viii] Douglass v. Hustler Magazine, 769 F.2d 1128 (7th Cir. Ill. 1985).
[ix] Martin v. Municipal Publications, 510 F. Supp. 255 (E.D. Pa. 1981)
[x] Cason v. Baskin, 155 Fla. 198 (Fla. 1944)
[xi] Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107 (Conn. 1982).
[xii] Carafano v. Metrosplash, Inc., 207 F. Supp. 2d 1055 (C.D. Cal. 2002).
[xiii] Prystash v. Best Medium Publishing Co., 157 Conn. 507 (Conn. 1969).