Invasion of Privacy

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. Even if the sharing of this information damages your reputation or causes other personal injury harm, it is not a violation of your privacy. That requires a "reasonable expectation of privacy," which would apply if the letter were not left out in public.

But let's say you're having a private conversation in your home, and a neighbor uses an electronic device to eavesdrop. If this wrongful act causes injury, your expectation of privacy has been violated. This is because you have a reasonable expectation that your neighbor is not using surveillance on your home.

Through common law, or law created over the history of court rulings rather than through statutory code, judges have developed rules to protect the private lives of individuals. 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, an intentional tort primarily controlled by state laws.

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

The following information explores these types of claims (causes of action) and the basics of invasion of privacy law in general.

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 (wrongful act) 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. However, 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 one's phone number repeatedly after being asked to stop would be invasive.

Suppose a man with binoculars regularly climbs a tree in his yard. He watches a woman across the street undress through her bathroom window. The woman may take legal action for his intrusion of her solitude through an invasion of privacy lawsuit. Her civil lawsuit would claim that she, as the injured person, has suffered emotional distress and mental anguish. Among other kinds of recovery, the woman can ask the court for:

• Special damages: These are ascertainable damages, such as medical expenses related to her emotional distress
• Punitive damages: These are extra damages a court can award if the defendant's conduct was particularly egregious

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 uses.

This is not always the case. For example, a private detective who impersonates someone else to obtain confidential information has invaded that person's privacy. The recognition of this tort is like 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."

For example, an advertising agency approaches a famous musician to participate in a campaign for a new automobile. The celebrity, who has a distinctive and easily recognizable voice, declines. The advertisers hire someone who sounds like the musician to do the soundtrack. The musician may sue the automaker for the misappropriation of their likeness. Among other awards, the celebrity would have a good chance of recovering:

1. The commercial value of their name and likeness
2. That portion of the automaker's profit attributable to the wrongful appropriation

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. An individual may be liable for damages if they publicly reveal truthful information that:

1. Is not of public concern; and
2. 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. Instead, it's shown to the public in a commercial theater. This is an invasion of her privacy.

In another example, a former prostitute was acquitted of murder. Suppose her maiden name 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 until they saw the film. Here, the disclosure of this true but embarrassing information would be deemed an invasion of her privacy.

What if someone publishes an unflattering article about a politician known for their family values? The publication discloses that the politician is having an affair with a staffer. Here, the disclosure is of public concern and, therefore, not an invasion of his privacy.

Some states, including New York, don't recognize this type of claim. In fact, common law privacy rights are not recognized in New York. Instead, the state has codified laws that protect, among other things, unpermitted commercial use of a living person's name and likeness.

4. False Light

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

The key difference is that defamation claims only apply to the public broadcasting 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

For example, a 96-year-old woman sued an Arkansas newspaper for printing her picture next to an unflattering headline. The headline read: "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 personal injury lawyer's assistance in preparing your case.

Some personal injury attorneys subspecialize in invasion of privacy and defamation claims. Consider a client relationship with a local defamation attorney with invasion of privacy law experience. They can give you legal advice that can help you defend your rights in court.