Invasion of Privacy: Damages and Recovery

Let's say you accidentally leave a personal letter containing private information on a public park bench. That letter is picked up and read by someone else. The sharing of this information damages your reputation or causes other personal injury harm. Even so, this sharing is not a violation of your privacy.

The general rule in privacy cases is that an invasion can only occur where there is a "reasonable expectation of privacy." This rule would only apply if the letter had not been left out in public. Since there is no reasonable expectation of privacy in public places, your privacy cannot be invaded there. Courts have used this rule in order to balance the:

1. Personal interests of private life
2. Public interest in matters of legitimate public concern

What if you're having a private conversation in your home, and a neighbor uses an electronic device to eavesdrop? Here, your privacy has been violated or invaded. This is because you would have a reasonable expectation that your neighbor would not surveil your home. There are disclaimers that may negate one's reasonable expectations. There may be exceptions where surveillance is done with consent or for legitimate safety reasons provided by law.

Under common law, which is law that has been developed through court cases over time, individuals have a protected right to privacy. Different states recognize a cause of action (claim) for the tort (civil wrong) of invasion of privacy. The restatement (second) of torts summarizes legal tort principles in the United States. This includes rulings made in trial court, court of appeals, and the supreme courts of the various states.

The restatement describes an invader of privacy as one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, where the intrusion would be highly offensive to a reasonable person.

Thus, an invasion of privacy occurs when there is an intrusion upon your reasonable expectation to be left alone. This article covers the four main types of invasion of privacy claims, which are intentional torts (committed on purpose).

The four main types of invasion of privacy claims are:

1. Intrusion of Solitude
2. Appropriation of Name or Likeness
3. Public Disclosure of Private Facts
4. False Light

If you win your claim, you can recover compensatory damages (actual damages) in order to make you whole. The amount of damages you recover will depend on the:

• General damages: These are damages that result from harms that are hard to calculate. Examples include pain and suffering mental distress, emotional distress, or mental anguish.
• Special damages: These are damages that you can ascertain for actual injuries. Examples are medical expenses, lost wages and earning capacity, and personal care costs.
• Punitive damages: Sometimes, a court will want to make an example out of a defendant that acted egregiously. The court might punish them by awarding additional damages. Such punitive damages are designed to deter future wrongdoing. They encourage defendants to take reasonable care in the future not to repeat their bad behavior.

Below, we discuss each of the four invasion of privacy torts and real-life examples that help demonstrate the legal right to privacy.

1. Intrusion of Solitude

Intruding upon another's solitude or private affairs is subject to liability if the intrusion is considered highly offensive to a reasonable person. This tort is often associated with:

• "Peeping Toms"
• Someone illegally intercepting private phone calls
• Snooping through someone's private records

Taking photographs of someone in public would not be invasion of privacy. But, using a long-range camera to take photos of someone inside their home would qualify. Making a few unsolicited telephone calls may not constitute a privacy invasion, but calling repeatedly after being asked to stop would be intrusive.

Hypothetical Example: A man with binoculars regularly climbs a tree in his yard. He watches a woman across the street undress through her bathroom window.

2. Appropriation of Name or Likeness

Plaintiffs may make a claim for damages if an individual (or company) uses their name or likeness for benefit without their permission. Usually, this involves a business using a celebrity's name or likeness in an advertisement. Some states even limit this type of privacy tort to commercial misappropriation.

Appropriation is not always committed in the commercial context. For example, a private detective who impersonates someone else to obtain confidential information may have invaded that person's privacy. The recognition of this tort is like a property right. In other words, a person's name and likeness is treated as that person's property. For celebrities, this is often referred to as the "right of publicity."

Hypothetical Example: An advertising agency approaches a musician to participate in a television campaign for a new automobile. The musician, who has a distinctive and easily recognizable voice and appearance, declines. The advertisers hire someone who looks and sounds like the musician to appear on television. This prompts the musician to sue the automaker for appropriating their likeness.

3. Public Disclosure of Private Facts

This type of invasion of privacy claim must be weighed against the First Amendment's protection of free speech. Unlike defamation (libel or slander), truth of the disclosed information isn't a defense. However, if a defendant can show that the disclosed information is a matter of public concern, they may have a strong defense. An individual may be liable for damages if they publicly reveal truthful information that is not of public concern, which a reasonable person would find offensive if made public.

Some states, including New York, don't recognize this type of claim.

For example, a woman about to deliver a baby via caesarian section agrees to allow the operation to be filmed for educational purposes only. Instead, it's shown to the public in a commercial theater. This is an invasion of her privacy.

In contrast, what about publishing an embarrassing article about a politician known for their family values? The article states the politician is having an affair with a staffer. This is a matter of public concern and, therefore, not an invasion of the politician's privacy.

Hypothetical Example: The maiden name of a former prostitute who was acquitted of murder is revealed in a film about the case. Since her acquittal, she has moved to another city, gotten married, and adopted a new lifestyle. Her new friends are unaware of her past until the reveal. Thus, the disclosure of this true-but-embarrassing information may be deemed an invasion of her privacy.

4. False Light

A false light claim is similar to a defamation claim in that it allows an individual to sue for the public disclosure of information that is misleading (or puts that person in a "false light"), but is not technically false.

The key difference is that defamation claims only apply to the public dissemination of false information. As with defamation, sometimes First Amendment protections prevail.

Generally, a false light claim must contain the following elements:

1. The defendant made a publication about the plaintiff;
2. It was done with reckless disregard;
3. It placed the plaintiff in a false light; and
4. It would be highly offensive or embarrassing to a reasonable person

Real-World Example: A 96-year-old woman sued an Arkansas newspaper for printing her picture next to the headline: "Special Delivery: World's oldest newspaper carrier, 101, quits because she's pregnant!" The woman, who was not pregnant, was awarded damages of $1.5 million.

Get Legal Help With an Invasion of Privacy Claim

Privacy issues are complicated and emotional, which can result in highly contentious court proceedings. Whether your privacy has been violated, or someone is accusing you of violating their privacy, you may benefit from a lawyer's assistance in preparing your case. Contact a local attorney with invasion of privacy law experience to learn how they can help you defend your rights in court.