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Invasion of Privacy

Let's say you accidentally leave a personal letter containing private information on a public park bench, and that letter is picked up and read by someone else. Even if the sharing of this information damages your reputation or causes other harm, it is not a violation of your privacy. That requires a "reasonable expectation" of privacy, which would apply if the letter was not left out in public. But if you are having a private conversation in your home and a neighbor uses an electronic device to eavesdrop (and this causes some kind of injury), then your expectation of privacy has in fact been violated.

Therefore, 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, a civil tort largely controlled by state laws. See Invasion of Privacy Claim: Attorney Intake Form, Is There a Difference Between Confidentiality and Privacy?, and What are Intentional Torts? to learn more.

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 

 

1. 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 is commonly associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records.

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 repeatedly after being asked to stop would. Unlike other forms of invasion of privacy, intrusion of solitude does not require any publication of private facts or images—the act of intrusion alone violates the law.

Example: A man with binoculars regularly climbs a tree in his yard and watches a woman across the street undress through her bathroom window. Her injury is the emotional distress she suffers upon seeing the perpetrator looking at her. 

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 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.

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 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.

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 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.

 

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