Invasion of privacy is a legal term essentially defined as a violation of the right to be
left alone. The right to privacy is the right to control property against search and seizure,
and to control information about oneself. However, public figures have less privacy, and
this is an evolving area of law as it relates to the media.
Development of the doctrine
In the United States, the development of the doctrine regarding this tort was largely spurred by an 1890 Harvard Law Review article written by Samuel D. Warren and Louis D. Brandeis on The
Right of Privacy. Modern tort law gives four categories of invasion of privacy [1] :
- Intrusion of solitude - physical or electronic intrusion into one's private quarters.
- Public disclosure of private facts -- the dissemination of truthful private information which a reasonable person would find
objectionable
- False light - the publication of facts which place a person in a false light, even though the facts themselves may not be
defamatory.
- Appropriation -- the unauthorized use of a person's name or likeness to obtain some benefits.
Intrusion of solitude
Intrusion of solitude occurs where one person exposes another to unwarranted publicity. In a famous case from 1944, author Marjorie Kinnan Rawlings was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek.[2] The Florida Supreme Court held that a cause
of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no
actual damages.
Public disclosure
Public disclosure of private facts arises where one person reveals information which, although truthful, is not of public
concern, and the release of which would offend a reasonable person[3].
False light
In the United States, one who gives publicity to a matter concerning another that places the other before the public in a
false light is subject to liability for invasion of privacy, if:
- The false light would be highly offensive to a reasonable person; and
- The actor acted with malice -- had knowledge of or acted with reckless
disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
See Section 652D of the Restatement (Second) of Torts.
The tort of false light involves a "major misrepresentation" of a person's "character, history, activities or belief." See
Gannett Co., Inc. v. Anderson, 2006 WL 2986459 at 3 (Fla. 1st DCA Oct. 20, 2006.)
Example
For example, in Peoples Bank & Trust Co. v. Globe Int'l, Inc., a tabloid newspaper printed
the picture of a 96-year-old Arkansas woman next to the headline “SPECIAL DELIVERY: World's oldest newspaper carrier, 101, quits
because she's pregnant! I guess walking all those miles kept me young.” 786 F. Supp. 791, 792 (D. Ark. 1992). The woman (not in
fact pregnant), Nellie Mitchell, who had run a small newsstand on the town square since 1963, prevailed at trial under a theory
of false light invasion of privacy, and was awarded damages of $1.5M. The tabloid appealed, generally disputing the offensiveness
and falsity of the photograph, and arguing that Mitchell had not actually been injured, and claiming that Mitchell had failed to
prove that any employee of the tabloid knew or had reason to know that its readers would conclude that the story about the
pregnant carrier related to the photograph printed alongside. The court of appeals rejected all the tabloid’s arguments, holding
that “[i]t may be. . .that Mrs. Mitchell does not show a great deal of obvious injury, but. . . Nellie Mitchell's experience
could be likened to that of a person who had been dragged slowly through a pile of untreated sewage. . . [and] few would doubt
that substantial damage had been inflicted by the one doing the dragging.”
Criticism
The false light invasion of privacy cause of action has been a source of hot debate among judges and legal scholars. See
Gannett at 1. Some courts have held that this invasion of privacy action duplicates the cause of action for defamation, while allowing the plaintiff to
avoid the strict requirements that are designed to ensure freedom of expression.
Gannett at 4.
Acceptance by courts
Nine U.S. states (Colorado, Massachusetts, Minnesota, Missouri,
New York, North Carolina, Texas, Virginia and Wisconsin) have rejected
false light as a viable claim[4]. Some of those states (such as Virginia) have statutes that dictate what type of privacy
claims may be made and that specifically leave out false light. In the other states, the highest courts have determined that
false light will not exist in their state.
In eleven states (Alaska, Florida, Hawaii, Michigan, North Dakota,
Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming) supreme courts have not had an opportunity to
rule on whether false light is recognized. The remaining states and the District of
Columbia accept false light as a viable claim.
The State of Ohio, previously undecided on the issue, has adopted false light in a
recent decision. 113 Ohio St.3d 464
Appropriation
-
Although this is a common-law tort, most states have enacted statutes that prohibit the use of a person’s name or image if
used without consent for the commercial benefit of another person.
Privacy and the Fourth Amendment
Invasion of privacy is a commonly used cause of action in a legal pleading. The Fourth Amendment to the
Constitution of the United States ensures that "the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The amendment, however, only protects against searches and seizures conducted by the government. Invasions of privacy by persons
who are not state actors must be dealt with under private tort
law.
Notes
External links
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