Advanced Torts - Spring 2007
Professor Ralph Brill
Review Questions

INVASION OF PRIVACY

Invasion of Privacy is really four or five separate torts, sharing only that they all seek to protect the interest of the plaintiff to be "let alone." Each has different requirements; some require publication; some do not.

1) APPROPRIATION : This version usually is stated as defendant's having appropriated the name, picture, likeness, persona of the plaintiff for the defendant's own purpose(s), usually commercial. The most common examples are using the plaintiff's likeness in a commercial, thus obtaining the value of the plaintiff's persona. While anyone may take a picture of plaintiff in a public place, it cannot be used for defendant's commercial or other purpose without the plaintiff's permission. This includes non-commercial usage, such as saying that plaintiff is a member of a political or other association (the N.R.A., Right to Life, etc.), or affixing one's name to a petition. There may be an exception for newsworthy uses, such as using one's picture in a newspaper article about some controversy on which plaintiff has taken a stand; showing a clip of a portion of plaintiff circus performer's act would be newsworthy, but showing the entire act would be appropriation.

The Right of Publicity is a new tort, very similar to Appropriation. However, it is more of a property right than a tort right. The main difference is that many courts require that the plaintiff to acquire and protect a right of publicity have exercised the right while alive, in which case it, unlike the right of privacy appropriation, will survive the plaintiff's death. The right of privacy is said to be personal, and will not survive the death of the plaintiff.

2) INTRUSION INTO THE SECLUSION OR SOLITUDE OF PLAINTIFF : The most common examples here are electronic eavesdropping on plaintiff in a private place, taking pictures through windows, searching through drawers or other private places. In the Nader case, G.M. was found liable for following plaintiff, prying into his bank account, electronically eavesdropping. In the Jackie Onassis case, a paparazzi photographer was ordered to stay at a reasonable distance in public and not to take pictures through private windows. In the Accardo case, the police were found to have violated plaintiff's privacy by following him too closely, even in public places, such as restaurants, on the street, on golf courses; ordinarily, watching someone or taking one's picture in public is not an intrusion. Taking pictures of plaintiff in a hospital room or other private place is an intrusion.

3) PUBLIC DISCLOSURE OF PRIVATE, EMBARRASSING FACTS : This tort has several aspects. First, there must be Public Disclosure. Telling one person is not Public. Usually, there will be newspaper or magazine reports or a television broadcast, or at least some widespread dissemination of the information. Second, the facts must be private facts. If they are a matter of public record, such as birth dates, criminal convictions, arrests, divorces, marriages, etc. they are not private. Third, they must be things that one would ordinarily find objectionable to disclose. If plaintiff has a stamp collection, it is not embarrassing to disclose that fact; if he dresses in woman's undergarments it is. Finally, it makes a difference who the plaintiff is. The public is entitled to know much more about its public figures, including aspects of their private lives, up to a point. And, once a public figure, always a public figure; the public is entitled to know about what has happened to former public figures, such as actors, athletes, politicians.

4) PLACING PLAINTIFF IN A FALSE LIGHT IN THE PUBLIC EYE : This tort too requires that there be publication to the public in general. It is similar to defamation in some respects, by requiring that there be false information conveyed about the plaintiff to the public. However, it is not required that the information be derogatory, just objectionably false. A picture of the plaintiff in an article on "the wrong kind of love" is actionable. A portrayal of a family whose house was invaded by escaped convicts, which inferred that the plaintiff was sexually molested, which was untrue, was actionable. A picture of an honest taxi driver in an article about cheating drivers was actionable. But a picture of a person performing the Indian rope trick in an article on the Indian rope trick is not, nor is a picture of a famous wrestler in an article on wrestling.

The actions for False Light and Public Disclosure of Private Facts require that there be public disclosure; the actions for intrusion and appropriation do not (though quite often appropriation will involve publicity). A public figure may have little chance of recovering for Public Disclosure of Private Facts or False Light (the same constitutional privileges as apply to defamation likely apply here), but a public figure surely will have actions for appropriation or intrusion.

Defenses

The action for False Light is treated similarly to Defamation. The Supreme Court has held that the same constitutional privileges that apply to defamation apply.... i.e., if the plaintiff is a public figure or public official, the plaintiff must prove that the defendant made the statement with knowledge of falsity or reckless disregard for the truth. In addition, the common law absolute and qualified privileges likely apply, i.e., the defendant may communicate a false impression about plaintiff to protect plaintiff's own interest, the interest of a third person, people with a common interest, or the proper person for a public interest.