Who may Assert Privacy Rights

A privacy right is personal in character and it can be asserted only by persons who are injured by an intrusion[i].  A plaintiff must plead and prove that plaintiff’s privacy has been invaded before recovering damages[ii].

The cause of action is not assignable, and it cannot be maintained by other persons such as individual’s family members, unless their own privacy is invaded along with that of an individual[iii].  Even a close relative of an injured person cannot recover in an action for privacy intrusion.  Thus a cause of action for unreasonable publicity concerning one’s private life belongs to a person who is injured with such publicity[iv].

However, for misappropriation of one’s name or likeness, an action for invasion of privacy can be maintained by other persons[v].  Unless there is a statute authorizing such, an action for privacy invasion cannot be maintained after the death of an individual whose privacy is invaded[vi].  A cause of action brought by a deceased person’s relatives or representatives for damages based on a posthumous publicity, which involves a decedent’s name or likeness, will not be remedied under law.  The privacy invasion of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family, or relatives, whose own privacy rights are not invaded[vii].

Sometimes an action against the publisher is permitted, where a publication dealing with a third person inures a plaintiff.  A plaintiff can recover if invasion of another’s privacy also invades a plaintiff’s own right of privacy[viii].  For example, a husband is a proper party in the event of injury to his wife.  When a husband and wife are living together an act of this nature necessarily injures the other spouse.  The result of invasion upon a wife’s privacy will incur a mental distress, embarrassment, and humiliation upon a husband as well.

A corporation, institution, organized group, or associations which solicit funds or membership, and partnerships cannot assert privacy right, because a privacy right is purely designed for protecting an individual’s rights related to feelings and sensibilities.  However, some courts have observed that a claim for privacy invasion can be asserted by an association[ix].

In some cases, courts have asserted that limitation on privacy rights for a corporation, partnership, or unincorporated association is only with reference to the four forms of privacy invasion.  A cause of action for an exclusive use of its own name or identity receives protection under the law of unfair competition[x].

Similarly, privacy rights do not extend to animals or pets, and a pet owner will have no authority for a cause of action for an unauthorized publication of their pet’s photograph.  For example, taking a photograph of plaintiff’s dog without plaintiff’s permission and using such photograph in an advertisement by the defendant will not constitute an invasion of plaintiff’s privacy right, where there was nothing in the advertisements to show that the dog belonged to plaintiff.

[i] Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 4th Dist. 1981).

[ii] Gruschus v. Curtis Publishing Co., 342 F.2d 775 (10th Cir. N.M. 1965).

[iii] Bowling v. Bowling, 1992 U.S. App. LEXIS 18505 (6th Cir. Ky. July 30, 1992).

[iv] Smith v. Artesia, 108 N.M. 339 (N.M. Ct. App. 1989).

[v] Nelson v. Maine Times, 373 A.2d 1221 (Me. 1977).

[vi] Mineer v. Williams, 82 F. Supp. 2d 702 (E.D. Ky. 2000).

[vii] Hendrickson v. California Newspapers, Inc., 48 Cal. App. 3d 59 (Cal. App. 1st Dist. 1975).

[viii] Lisowski v. Jaskiewicz, 1951 Pa. Dist. & Cnty. Dec. LEXIS 301 (Pa. C.P. 1951).

[ix] Lowry v. International Brotherhood of Boilermakers, etc., 259 F.2d 568 (5th Cir. Miss. 1958).

[x] Associated Students of University of California v. Kleindienst, 60 F.R.D. 65 (C.D. Cal. 1973).


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