Common Law Privacy Torts

Question 1

Common Law Privacy Torts (Generally)

Answer 1

4 Kinds of wrongs:
1. Appropriation of the plaintiff’s picture or name
1. Intrusion on the plaintiff’s affairs or seclusion
1. Publication of facts placing the plaintiff in a false light
1. Public disclosure of private facts about the plaintiff

• The right of privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable.
• The right of privacy is not applicable to corporations.
• The invasion of the plaintiff’s interest in privacy must have been proximately caused by the defendant’s conduct.
• The plaintiff need not plead and prove special damages.
• Emotional distress and mental anguish are sufficient damages.

Question 2

Appropriation of the plaintiff’s picture or name (Common Law Privacy Tort)

Answer 2

It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.
* Appropriation: D uses P’s name / image for commercial purpose
* Newsworthiness Exception: Liability is generally limited to advertisements or promotions of products or services.
* Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.
* Appropriation is not limited to celebrities

Question 3

Intrusion on Plaintiff’s Affairs or Seclusion (Common Law Privacy Tort)

Answer 3

Invasion of P’s seclusion in way that would be highly offensive to reasonable person
* forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct.
* P must have a reasonable expectation of privacy (Photographs taken in public places are not actionable)

Question 4

Publication of Facts Placing Plaintiff in False Light (Common Law Privacy Tort)

Answer 4

Widespread dissemination of material falsehood about Plaintiff that would be highly offensive to reasonable person
* In most states P must show D knew the statement was false, or made the statement with reckless disregard of whether it was true or false (malice)
* Very same behavior can be both false light and defamation
* Defamation = Economic Damages
* False Light = Emotional Damages
* Can be false light without defamation (Ex: saying something about ones religious beliefs that isn’t true)

Question 5

Public Disclosure of Private Facts About Plaintiff (Common Law Privacy Tort)

Answer 5

Widespread dissemination of confidential information about P not of legitimate concern to public and highly offensive to reasonable person
* Newsworthiness exception
* Liability may attach even though the actual statement is true.
* Disclosure must be a truly confidential fact
* First Amendment limitations probably apply if the matter is of legitimate public interest.

Question 6

Affirmative Defenses to Privacy Torts

Answer 6

Consent:
* Defense to all 4 privacy claims

Absolute / Qualified Privilege:
* Defense for False Light / Disclosure claims