What Constitutes a Violation
Invasion of privacy is the intrusion upon, or revelation of, something private[i]. 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[ii].
The law of privacy consists of four distinct kinds of invasion. The right of privacy is invaded when there is[iii]:
- 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.
An invasion of the right of privacy by anyone 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[iv].
Invasion of privacy by intrusion does not depend upon 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[v].
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[vi]. 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.
Similarly, mere incidental commercial use of a person’s name or photograph is not actionable under the Civil Rights Law[vii]. 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.
Tortious liability for appropriation of a name or likeness is intended to protect the value of an individual’s notoriety or skill[viii]. 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, 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[ix].
- 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.
n 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[x]:
- 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.
The protection afforded to a plaintiff’s interest in his/her privacy must be[xi]:
- 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.
Some Courts define the tort of invasion of privacy as 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[xii].
Whether there is an offensive invasion of privacy is to some extent a question of law[xiii]. However, some jurisdictions are of the view that the question of invasion of privacy is one of fact[xiv].
[i] Huskey v. National Broadcasting Co., 632 F. Supp. 1282 (N.D. Ill. 1986).
[ii] Jackson v. Playboy Enterprises, Inc., 574 F. Supp. 10 (S.D. Ohio 1983).
[iii] Klipa v. Board of Education, 54 Md. App. 644 (Md. Ct. Spec. App. 1983).
[iv] Uranga v. Federated Publs., Inc., 138 Idaho 550 (Idaho 2003).
[v] Lugosi v. Universal Pictures, 25 Cal. 3d 813 (Cal. 1979).
[vi] Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985).
[vii] Moglen v. Varsity Pajamas, Inc., 13 A.D.2d 114 (N.Y. App. Div. 1st Dep’t 1961).
[viii] Remsburg v. Docusearch, Inc., 149 N.H. 148 (N.H. 2003).
[ix] Zieve v. Hairston, 266 Ga. App. 753 (Ga. Ct. App. 2004).
[x] Dominguez v. Davidson, 266 Kan. 926 (Kan. 1999).
[xi] TBG Ins. Services Corp. v. Superior Court, 96 Cal. App. 4th 443 (Cal. App. 2d Dist. 2002).
[xii] Nipper v. Variety Wholesalers, 638 So. 2d 778, 781 (Ala. 1994).
[xiii] Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761 (D.N.J. 1981).
[xiv] Strickler v. National Broadcasting Co., 167 F. Supp. 68, 71 (D. Cal. 1958).