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 libel, there are differences between an action for libel and a violation of privacy rights[i]. 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 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[ii];
- 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]. Further, such averment 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 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.
In order to recover damages or injunction in cases where a plaintiff is required to make alleged private information available for public inspection, a plaintiff must assert and prove the following essential elements[iv]:
- that alleged private information was one subject to privilege and it is not an easily discoverable one[v];
- that defendant had knowledge about the fact that such information was subject to a privilege and not discoverable;
- that defendant proceeded to obtain such information;
- that obtaining of such information was highly injurious to a reasonable person[vi]; and
- that injury resulted from such privacy invasion.
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[vii].
In a false light privacy claim which is similar to the tort of defamation, a plaintiff must assert the following elements[viii]:
- 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.
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[ix].
[i] Smith v. Doss, 251 Ala. 250 (Ala. 1948).
[ii] Truxes v. Kenco Enters., 80 S.D. 104 (S.D. 1963).
[iii] Tapia v. Sikorsky Aircraft Div., 1998 Conn. Super. LEXIS 1576 (Conn. Super. Ct. May 28, 1998).
[iv] Parks v. Rainbow Rentals, Inc., 2008 U.S. Dist. LEXIS 43921 (W.D. Ky. June 3, 2008).
[v] Yoder v. Ingersoll-Rand Co., 1998 U.S. App. LEXIS 31993 (6th Cir. Ohio Dec. 22, 1998).
[vi] Doe v. Mills, 212 Mich. App. 73 (Mich. Ct. App. 1995).
[vii] Aquino v. Bulletin Co., 190 Pa. Super. 528 (Pa. Super. Ct. 1959).
[viii] International Serv. Assocs. v. Arco Management, 1994 U.S. Dist. LEXIS 15025 (N.D. Ill. Oct. 11, 1994).
[ix] Lovgren v. Citize s nFirst Nat’l Bank, 126 Ill. 2d 411 (Ill. 1989).