Invasion of Privacy
What is the Invasion of Privacy?
A cluster of four distinct torts protecting personal privacy: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness.
Definition
Invasion of privacy encompasses four distinct tort claims, each protecting a different aspect of personal privacy. The torts were first cataloged by Dean William Prosser based on the foundational article by Samuel Warren and Louis Brandeis, 'The Right to Privacy' (1890), and are codified in the Restatement (Second) of Torts sections 652A-652E.
Intrusion upon seclusion occurs when the defendant intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another in a manner that would be highly offensive to a reasonable person. Examples include wiretapping, unauthorized surveillance, or searching personal belongings. No publication is required. Public disclosure of private facts involves the public disclosure of truthful but private information about the plaintiff that would be highly offensive to a reasonable person and is not of legitimate public concern. Unlike defamation, the information disclosed is true. False light occurs when the defendant publishes information that places the plaintiff in a false light before the public in a way that would be highly offensive to a reasonable person. It resembles defamation but does not require that the statement be defamatory — only that it be misleading. Some jurisdictions (including several that are notable) have rejected the false light tort as duplicative of defamation. Appropriation of name or likeness involves the unauthorized use of another's name, image, or identity for commercial benefit. This tort has evolved into the right of publicity in many states.
First Amendment considerations limit several of these torts. Public disclosure and false light claims are subject to newsworthiness and public concern defenses. False light claims brought by public figures may require proof of actual malice under Time, Inc. v. Hill. The appropriation tort may conflict with free expression when names or likenesses are used in artistic or newsworthy contexts.
Key Elements
- 1Intrusion: intentional intrusion into private affairs that would be highly offensive to a reasonable person
- 2Public Disclosure: public revelation of private facts that would be highly offensive and is not newsworthy
- 3False Light: publication placing plaintiff in a false, highly offensive light before the public
- 4Appropriation: unauthorized use of plaintiff's name or likeness for defendant's commercial advantage
- 5Each tort requires the invasion to be highly offensive to a reasonable person
- 6Publication is required for disclosure, false light, and appropriation, but not for intrusion
Landmark Cases
Time, Inc. v. Hill
385 U.S. 374 (1967)
Applied the actual malice standard to false light claims involving matters of public interest, extending First Amendment protections.
Zacchini v. Scripps-Howard Broadcasting Co.
433 U.S. 562 (1977)
Recognized the right of publicity (appropriation) as distinct from other privacy torts and held the First Amendment does not protect broadcasting an entire performance.
Nader v. General Motors Corp.
25 N.Y.2d 560 (1970)
Recognized intrusion upon seclusion as a viable claim, involving surveillance and investigation of consumer advocate Ralph Nader.
Cox Broadcasting Corp. v. Cohn
420 U.S. 469 (1975)
Held that the First Amendment protects publication of truthful information from public records, limiting public disclosure claims.
Exam Tips
- Identify which of the four privacy torts is at issue — they have different elements and different defenses.
- For intrusion claims, remember that no publication is required — the act of intruding itself is the tort.
- For public disclosure, focus on whether the information is truly private and whether it is newsworthy — the newsworthiness defense is powerful.
- For false light, determine whether the jurisdiction recognizes the tort at all — several states have rejected it.
Common Mistakes to Avoid
- Treating invasion of privacy as a single tort rather than four distinct causes of action with different elements.
- Confusing false light with defamation — false light does not require a defamatory statement, only a misleading one that is highly offensive.
- Forgetting that public disclosure involves true facts — unlike defamation, truth is not a defense because the tort is about privacy, not falsity.
Memory Aid
Four privacy torts: I-PAF — Intrusion, Public disclosure, Appropriation, False light.