Invasion of Privacy Damages and Recovery

There is a generally recognized right to be left alone. An invasion of privacy occurs when someone unjustifiably intrudes on this right. If your privacy has been invaded by intrusion, misappropriation, public disclosure of private facts, or false light, you may have suffered emotionally, physically, or otherwise and may wish to bring a civil lawsuit to recover for this harm.

What you will be able to achieve in your suit will depend on the circumstances of your case and where you are located. You may be able to recover economic compensation ("damages") for the harm you suffered, force the defendant to give up the profits he made from the invasion ("disgorgement"), and/or have the defendant ordered to do or refrain from action ("injunctive relief"). This article will briefly describe some of the available remedies and consequences in invasion of privacy cases.

Bear in mind that not all states recognize all four of the privacy torts, and even those that do differ with respect to the types of damages and recovery they award. Be sure to carefully check the applicable law in your state for your particular situation.

The Restatement on Damages

Although state laws vary, many states base their privacy laws on the Second Restatement of Torts. Section 652H of the Restatement addresses damages in invasion of privacy actions. It provides that if you have established a cause of action for invasion of privacy, you are entitled to recover damages for:

  • The harm to your interest in privacy resulting from the invasion;
  • The mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and
  • Special damages of which the invasion is a legal cause.

The "harm to your interest in privacy" will depend on which form of privacy invasion you suffered. So, for example, if private facts were publically disclosed, you would be entitled to economic compensation for the harm that came from the disclosure, such as harm to your reputation and standing in the community. Mental or emotional distress that you prove you have suffered is also recoverable, so long as it is a type that would normally flow from such an invasion. Finally, if the invasion caused you to incur any special damages (specific quantifiable damages, such as medical expenses you have incurred) you may also recover those.

Disgorgement of Profits

An invasion of privacy can be even more upsetting when the intruder profits from it. Disgorgement, or the giving up of profits to prevent unjust enrichment, can be ordered in some cases such as intrusion and misappropriation claims. California for example, has state statutes that might afford you with this avenue of relief. Under Civil Code section 1708.8 if you prove that the defendant invaded your privacy for commercial purposes, he may be required to give to you "any proceeds or other consideration" obtained by the intrusion. Similarly under California's Civil Code section 3344a, a misappropriating defendant can be made to pay you any profits he made from the unauthorized use of your likeness.

Injunctive Relief

An injunction is essentially an order by the court requiring a person or entity to do or refrain from doing something. In some situations, this is another remedy that might be available. New York, for example, addresses privacy actions solely by way of statute in NY Civil Rights Law sections 50 and 51. If someone has used your "name, portrait, picture or voice" for commercial purposes in New York without your consent, you may bring an action to prevent and restrain the use of your likeness in addition to recovering any damages you have sustained.

Punitive Damages

Punitive damages are additional damages designed to punish the defendant and set an example for others. These have been awarded in invasion of privacy cases, but typically only when the defendant's actions were particularly malicious or egregious. A California court, for example, upheld a punitive damages award in a public disclosure of private facts case when it was reasonable to conclude that the defendant acted with the "intent to outrage or humiliate" the plaintiff or published his article with a "conscious disregard" of the plaintiff's rights.

Speak with a Personal Injury Attorney

If someone has violated your right to privacy, you'll want to know all there is to know about the law and any possible claims you may have against the offending party. Of particular interest is how much you may be able to recover in damages, should you be succesful in a lawsuit. Find out more from an experienced personal injury attorney in your area.

Next Steps

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