Invasion of Privacy

The right to privacy historically has been defined as the right to be left alone, so the invasion of privacy is an intrusion upon an individual's reasonable expectation to be left alone. The reasonable expectation of privacy has been greatly altered with rapid advances in technologies such as digital cameras and the internet, but the legal principles remain relatively constant. This tort takes four general forms, which are discussed in greater detail below: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of someone's name or likeness; (3) unreasonable publicity given to someone's private life and (4) publicity that unreasonably puts someone in a false light before the public. Plaintiffs suing for invasion of privacy must be able to show that the action resulted in some kind of harm to their interests.

Like other torts, invasion of privacy is generally controlled by state laws. In 1905, Georgia became the first state to establish the tort of invasion of privacy. Now, the vast majority of U.S. jurisdictions allow civil actions for this claim.

Type of Invasion of Privacy

Intrusion of Solitude

Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person. This type of invasion of privacy includes much of what commonly comes to mind when hearing the phrase: so-called "peeping Toms", someone illegally intercepting private phone calls, and snooping through someone's private records, for example. While taking photographs of someone in public would not count, using a long range camera to take photographs of someone inside his or her home would qualify. One or two unsolicited telephone calls may not constitute a privacy invasion, but incessant harassment by calling over and over again after being asked to stop would. Unlike other forms of invasion of privacy, intrusion on solitude does not require any publication of private facts or images -- the act of intrusion alone violates the law.

Example: In 2010, ESPN sports reporter Erin Andrews sued convicted stalker Michael Barrett and the hotel where she was staying for invasion of privacy after Barrett secretly videotaped her in the nude through the peephole in her door and posted the videos on the internet. Andrews had every reason to expect privacy within her locked hotel room, while Barrett used special technology to see into her room.

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 the other party's permission. Usually this involves a business using a celebrity's name or likeness in an advertisement. In fact, some states limit this type of invasion of privacy tort to commercial uses. This is not always the case, though. For example, a private detective who impersonates someone else in order to obtain otherwise confidential information has invaded that person's privacy. The recognition of this tort is similar to a property right; in other words, a person's name and likeness are treated as that person's property. For celebrities, this is often referred to as "right of publicity."

Example: In 2005, an advertising agency approached musician Tom Waits with regard to an ad campaign for a new automobile. Waits, who has a distinctive and easily recognizable voice, declined. So the advertisers hired someone who sounds like him to do the soundtrack, prompting Waits to sue the automaker for appropriating his likeness.

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 is no defense. Legal action may be taken if an individual publicly reveals truthful information that is not of public concern and which a reasonable person would find offensive if made public. For example, a woman about to deliver a baby via caesarian section agrees to allow the operation to be filmed for educational purposes only; but instead it is shown to the public in a commercial theater. This is an invasion of her privacy. However, publishing an article about a politician known for his family values rhetoric but who has been having an affair with a staffer is of public concern and therefore not an invasion of his privacy. New York and some other states do not recognize this type of claim.

Example: In 1931, the maiden name of a former prostitute who was acquitted of murder was revealed in a film about the case. Since the trial, she had moved to another city, gotten married and adopted a new lifestyle. Her new friends were unaware of her past, so the disclosure of this true but embarrassing information was deemed an invasion of her privacy.

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 not technically false. The key difference is that defamation claims only apply to the public broadcasting of false information; and as with defamation, sometimes First Amendment protections prevail. Generally, a false light claim must contain the following elements: (1) a publication by the defendant about the plaintiff; (2) it was done with reckless disregard; (3) it places the plaintiff in a false light and (4) it would be highly offensive or embarrassing to a reasonable person.

Example: In 1992, 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.