Invasion of privacy
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Invasion of privacy is a legal term essentially defined as the unlawful intrusion into the personal life of another person without just cause and includes a non-public person's right to privacy from: a) intrusion into solitude or into private affairs; b) public disclosure of embarrassing private information; c) publicity which puts him/her in a false light to the public; d) appropriation of a person's name or picture for another person's gain or commercial advantage.[1] The right to privacy is the right of a person to be secluded and not seen, heard, or disturbed and involves freedom from observation, intrusion, or attention unless there is a "reasonable' public interest in personal activities, the right to stop police and other government agents from searching person or property except when there is "probable cause", the freedom to make certain decisions about our own personal bodies and private lives without interference from the government, and protected in the due process clause of the 14th amendment of the United States Constititution, the right to privacy regarding family, marriage, motherhood, procreation, and child rearing.[2] However, public figures have less privacy, and this is an evolving area of law as it relates to the media.
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[edit] Development of the doctrine
In the United States, the development of the doctrine regarding this tort was largely spurred by an 1890 Harvard Law Review article written by Samuel D. Warren and Louis D. Brandeis on The Right of Privacy. Modern tort law gives four categories of invasion of privacy:[3]
- Intrusion of solitude - physical or electronic intrusion into one's private quarters.
- Public disclosure of private facts -- the dissemination of truthful private information which a reasonable person would find objectionable
- False light - the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
- Appropriation -- the unauthorized use of a person's name or likeness to obtain some benefits.
[edit] Intrusion of solitude
Intrusion of solitude occurs where one person exposes another to unwarranted publicity. In a famous case from 1944, author Marjorie Kinnan Rawlings was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek.[4] The Florida Supreme Court held that a cause of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no actual damages.
[edit] Intrusion upon seclusion
Intrusion upon seclusion occurs when a perpetrator intentionally intrudes, physically, electronically, or otherwise, upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, by use of the perpetrator's physical senses or by electronic device or devices to oversee or overhear the person's private affairs, or by some other form of investigation, examination, or observation intrude upon a person's private matters if the intrusion would be highly offensive to a reasonable person. Hacking a computer is an example of intrusion upon privacy.[5] In determining whether intrusion has occurred, one of three main considerations may be involved: expectation of privacy; whether there was an intrusion, invitation, or exceedance of invitation; or deception, misrepresentation, or fraud to gain admission. Intrusion is “an information-gathering, not a publication, tort…legal wrong occurs at the time of the intrusion. No publication is necessary.” [6]
[edit] Public disclosure
Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person[7]. "Unlike libel or slander, truth is not a defense for invasion of privacy."[8] Disclosure of private facts includes publishing or widespread dissemination of little-known, private facts that are non-newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public.[9]
[edit] False light
"False Light" occurs when false allegations about a person are published as fact either with malice or with reckless disregard for the truth thereby creating a deliberately false and misleading impression. Examples might include intentional or reckless misrepresentation of a person or persons in a published story about a hate group which might include some facts about the group but includes erroneous, invalid, unverified, or unsubstantiated information such as the name of a specific person who is not a member of that group. False light claims are similar to defamation cases; however, "false light cases are about damage to a person's feelings or dignity, whereas defamation is about damage to a person's reputation."[10] “In a suit for intentional infliction of emotional distress, a public official or public figure cannot win unless he or she can show that a false statement of fact was published with actual malice.”[11] Malice is the deliberate intent to do greivous injury or harm to another person.[12]
- The false light would be highly offensive to a reasonable person; and
- The actor acted with malice -- had knowledge of or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
The tort of false light involves a "major misrepresentation" of a person's "character, history, activities or belief."[13]
[edit] Example
For example, in Peoples Bank & Trust Co. v. Globe Int'l, Inc., a tabloid newspaper printed the picture of a 96-year-old Arkansas woman next to the headline “SPECIAL DELIVERY: World's oldest newspaper carrier, 101, quits because she's pregnant! I guess walking all those miles kept me young.” 786 F. Supp. 791, 792 (D. Ark. 1992). The woman (not in fact pregnant), Nellie Mitchell, who had run a small newsstand on the town square since 1963, prevailed at trial under a theory of false light invasion of privacy, and was awarded damages of $1.5M. The tabloid appealed, generally disputing the offensiveness and falsity of the photograph, and arguing that Mitchell had not actually been injured, and claiming that Mitchell had failed to prove that any employee of the tabloid knew or had reason to know that its readers would conclude that the story about the pregnant carrier related to the photograph printed alongside. The court of appeals rejected all the tabloid’s arguments, holding that “[i]t may be. . .that Mrs. Mitchell does not show a great deal of obvious injury, but. . . Nellie Mitchell's experience could be likened to that of a person who had been dragged slowly through a pile of untreated sewage. . . [and] few would doubt that substantial damage had been inflicted by the one doing the dragging.”
[edit] Criticism
The false light invasion of privacy cause of action has been a source of hot debate among judges and legal scholars.[14] Some courts have held that this invasion of privacy action duplicates the cause of action for defamation, while allowing the plaintiff to avoid the strict requirements that are designed to ensure freedom of expression.[15]
[edit] Acceptance by courts
Nine U.S. states (Colorado, Massachusetts, Minnesota, Missouri, New York, North Carolina, Texas, Virginia and Wisconsin) have rejected false light as a viable claim.[16] Some of those states (such as Virginia) have statutes that dictate what type of privacy claims may be made and that specifically leave out false light. In the other states, the highest courts have determined that false light will not exist in their state.
In eleven states (Alaska, Florida, Hawaii, Michigan, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming) supreme courts have not had an opportunity to rule on whether false light is recognized. The remaining states and the District of Columbia accept false light as a viable claim.
The State of Ohio, previously undecided on the issue, has adopted false light in a recent decision. 113 Ohio St.3d 464
[edit] Appropriation of name or likeness
Although this is a common-law tort, most states have enacted statutes that prohibit the use of a person’s name or image if used without consent for the commercial benefit of another person.
Appropriation of name or likeness occurs when a person uses the name or likeness of another person for personal gain or commercial advantage. Action for misappropriation of right of publicity protects a person against loss caused by appropriation of personal likeness for commercial exploitation. A person's exclusive rights to control his or her name and likeness to prevent others from exploiting without permission is protected in similar manner to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection. [17]
Appropriation is the oldest recognized form of invasion of privacy involving the use of an individual’s name, likeness or identity without consent for purposes such as ads, fictional works, or products.[18]
"The same action — appropriation —can violate either an individual’s right of privacy or right of publicity. Conceptually, however, the two rights differ."[19]
[edit] Privacy and the United States Constitution
Invasion of privacy is a commonly used cause of action in a legal pleading. The Fourth Amendment to the Constitution of the United States ensures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The amendment, however, only protects against searches and seizures conducted by the government. Invasions of privacy by persons who are not state actors must be dealt with under private tort law.
A notable quote regarding the United States Constitution and privacy in the case of Dietemann v. Time Inc. (9th Cir. 1971): “The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.”[20]
[edit] Notes
- ^ Invasion of Privacy Law & Legal Definition [1]
- ^ Right to Privacy Law & Legal Definition [2]
- ^ *William Prosser, Privacy, 48 Calif.L.Rev. 383 (1960).
- ^ Cason v. Baskin, 20 So. 2d 243 (Fla. 1944) (note: Baskin was Rawlings' married name).
- ^ Invasion of Privacy, Intrusion Upon Seclusion [3]
- ^ Privacy Torts, Intrusion [4]
- ^ Common Law Privacy Torts
- ^ Invasion of Privacy [5]
- ^ Privacy Torts, Disclosure of Private Facts [6]
- ^ When Truth Is No Defense [7]
- ^ Privacy Torts, False Light, Intentional Infliction of Emotional Distress [8]
- ^ Malice Aforethought Law & Legal Definition [9]
- ^ Gannett Co., Inc. v. Anderson, 2006 WL 2986459 at 3 (Fla. 1st DCA Oct. 20, 2006).
- ^ See Gannett at 1.
- ^ Gannett at 4.
- ^ The News Media & The Law. "A recent decision calls false light outdated".
- ^ Invasion of Privacy, Appropriation of Name or Likeness [10]
- ^ Privacy Torts, Appropriation [11]
- ^ Privacy Torts, Differences Between the Right of Privacy and the Right of Publicity [12]
- ^ Privacy Torts, Section 9 [13]
[edit] External links
- U.S. Constitution: First Amendment: Invasion of Privacy via FindLaw.
- Invasion of Privacy and the Media: The Right "To Be Let Alone"ko:사생활 침해
he:ההגנה על הפרטיות בנזיקין
