The right of privacy is a common-law cause of action that is a recent legal development. The U.S. Constitution contains no direct references to the right of privacy, although the Fourth Ammendment states:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
An action for invasion of privacy is actually comprised of four distinct torts (legal wrongs). These are: intrusion upon seclusion; appropriation of name or likeness; publicity given to private life; and publicity placing the person in a false light. To sue successfully for invasion of privacy, a plaintiff only has to prove one of the four torts, not all of the four torts.
The right of privacy competes with the freedom of the press as well as the interest of the public in the free dissemination of news and information, and these permanent public interests must be considered when placing the necessary limitations upon the right of privacy. The First Amendment states:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..."
Intrusion Upon Seclusion:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.
To be liable for intrusion upon seclusion, the plaintiff must prove the following elements:
1. Invasion of a secluded place or privacy: the Defendant must invade the Plaintiff's personal or private space. The definition of this invasion is very broad. Invasion may be:
- by physical intrusion into a place where the plaintiff has secluded himself.
- by use of the defendant's senses to oversee or overhear the plaintiff's private affairs (such as eavesdropping or spying with a telescope), or
- some other form of investigation or examination into plaintiff's private concerns (such as illegally obtaining someone's credit report).
2. Objectionable intrusion: the intrusion must be of a type that would be highly offensive to the ordinary reasonable person.
3. Invasion of private affairs or matters: the interference with the plaintiff's privacy must be substantial (however, if the event reported occurs in public, there is no expectation of privacy).
Examples of intrusion upon privacy include placing microphones or cameras in someone's bedroom or hacking into their computer.
Appropriation of Name or Likeness:
Appropriation of name or likeness occurs when someone uses the name or likeness of another for their own benefit. Action for misappropriation of right of publicity protects against commercial loss caused by appropriation of an individual's personality for commercial exploitation. It gives the individual exclusive right to control the commercial value of his or her name and likeness to prevent others from exploiting that value without permission. It is similar to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection.
Publicity Given to Private Life:
One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy, if the matter publicized is of a kind that:
1. would be highly offensive to a reasonable person, and
2. is not of legitimate concern to the public.
The main determination in a publicity given to private life lawsuit is whether the matter being publicized is public or private. If the matter is one of public concern, there is no invasion of privacy. First Amendment rights protect the publication of items of legitimate public interest. However, if the matter is not one of public concern, and it is one that people would find offensive, there is an invasion of privacy. An example of publicity given to private life would be publicizing the fact that your neighbor has failed to pay his credit card bill for three months.
Public figures (those persons who, by their accomplishments or place in life, give the public a legitimate interest in their affairs, such as politicians, entertainers, or professional athletes) face a somewhat lessened right to privacy because more of their actions are of legitimate public concern than private citizens.
Publicity Placing the Person in a False Light:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability for invasion of privacy, if the false light in which the other was placed would be highly offensive to a reasonable person. Examples include a newspaper publishing an innocent person's picture as part of a story about convicted felons or including reporting that someone was involved in a domestic dispute when, in fact, there was no such dispute. Publicly placing a person in a false light also includes falsely stating someone's views, such as saying that someone is a member of the Ku Klux Klan.
Unlike libel, truth is not a defense for invasion of privacy.
Only the plaintiff holds the right to privacy. It is a personal right. It does not survive the plaintiff (the defendant cannot be sued for invasion of privacy actions that occur after the death of the person whose privacy was invaded), nor can it be asserted on behalf of family members. Invasion of privacy lawsuits cannot be brought by, or on behalf of, corporations.
Successful plaintiffs may recover damages for harm to their interest in privacy, mental/emotional distress, and special damages caused by the invasion of privacy.