ADVANCED TORTS
INVASION OF PRIVACY
I. TYPES OF ACTIONS
a. Publicity of True Private Facts
b. False Light
c. Intrusion Upon Seclusion
d. Appropriation of Name or Likeness
e. Damages
II. PUBLICITY OF TRUE PRIVATE FACTS
a. ELEMENTS
i. Publicity:
1. Dissemination to public in general
ii. Concerning True Information about the Private Life of Another
iii. Liability if:
1. Highly offensive to a Reasonable Person, AND
a. Relative to customs of time and place, occupation of P and habits of his neighbors and fellow citizens
b. Mild and moderate annoyance is insufficient
c. Reasonable Person would feel justified in feeling seriously aggrieved
i. Example: you give birth tapes for medical students; and instead someone shows them in a public theatre
2. Not of Legitimate Concern to the Public (not newsworthy)
a. Can be difficult to define- factors to consider:
i. Customs and conventions of the community
ii. Limitations of common decency
iii. Lapse of Time
b. Public has a legitimate interest in actual social history
i. Haynes v. Knopf:
1. Following publication of certain embarrassing but true facts about his relationship with his first wife as part of a social history book examining migration patterns, Haynes sued the book’s author and publisher for invasion of privacy
2. A person will NOT be liable for publicizing embarrassing BUT TRUE facts about another person if the facts are of legitimate concern to the public
a. Federal Appeals court finds NO INVASION of PRIVACY where embarrassing but TRUE facts were of legitimate concern to the public
ii. People who do not desire the limelight and do no thrust themselves into it, nevertheless have no legal right to extinguish it if the experiences that have befallen them are newsworthy, even if they would prefer that those experiences be kept private
iii. Core protection of those intimate physical details the publicizing of which would be NOT merely embarrassing and painful, BUT deeply shocking to the average person subjected to such exposure
iv. No Protection of Matters of Public Record
b. CONSTITUTIONAL PRIVILEGE
i. Voluntary Public Figure:
1. No Cause of Action
a. Because they places themselves in the public eye
ii. Involuntary Public Figure
1. They have NOT sought to be in the public eye, but they have still became news
a. Ex: Those who commit crimes, victims of crime, catastrophes, accident, even that attract public attention
i. The public here has a RIGHT to be informed
b. The Cause of Action is NOT limited to the scope of the accident/crime
2. NO CAUSE OF ACTION IF:
a. News about crimes; arrests; fires; catastrophes of nature; death from use of drugs, rare disease, birth of child to 12 year old, reappearance of someone supposedly murdered years ago, escape of wild animal, other similar matter of popular appeal
3. Can possibly extend to family members if P in the news and of legitimate concern
4. Broader than just the “news” aspect
a. Information about names and facts for purpose of education, amusement and enlightenment of the public is OK
iii. Protection of Information Lawfully Obtained IF public interest is being served and if non-protection would result in self-censorship or timid
1. Florida Star v. BJF
a. A rape victim sued a newspaper for civil damages after her name and account of her rape was published by the newspaper in violation of a state law making it unlawful to print, publish, or broadcast in any instrument of mass communication, the name of a victim of a sexual offense
b. If a newspaper lawfully obtains truthful information about a matter of public significance, the state officials may not constitutionally punish publication of the information, unless there is a need to further a compelling state interest
i. US Supreme Court finds FL law prohibiting mass publication of the name of a rape victim to VIOLATE the FIRST AMENDMENT
c. Recovery is only based on state interest of the higher order
i. Only where a newspaper publishes truthful information that it has lawfully obtain, punishment may be lawfully imposed, if at all, only when narrowly tailored
ERE- no right to privacy violated by the book; because revelations are NOT about intimate details of Hayne’s life, they are about husband’s misconduct. Story is of a legitimate and transcendent public interest
iv. Florida Star v. BJF (1989)
1. Newspaper reporter got information about rape from publically released police report and published victim’s name. D argues this is like Cox v. Cohn, and press should NEVER be held liable for publishing the truth. P argues that publishing a rape victim’s name is NEVER constitutionally protected
a. NO LIABILITY- a state cannot hold publisher civilly liable for publishing the name of a rape victim which it obtained legally from publicly released police report because doing so violated 1st Amendment
v. Humphers (1985)
1. Doctor gives an adopted girl, the name of her true birth mother
a. NO VIOLATION OF PRIVACY, but there is a breach of confidence
III. FALSE LIGHT PRIVACY
a. Notions of a person’s right to control her own “publicity” OR their portrayal to the public
b. ELEMENTS:
i. One Who Gives “PUBLICITY”
1. General dissemination to the public at large
a. Focus on information that ACTUALLY reaches or is sure to reach the public
ii. To Matter Which PUTS P IN FALSE LIGHT
1. FALSE LIGHT:
a. In a way that is highly offensive to a reasonable person
i. Need NOT BE DEFAMATORY
2. Broader than Defamation
a. No Need to Harm Reputation
3. Question of FACT
4. Some Jurisdictions do NOT recognize FALSE LIGHT cause of action because they think Defamation is enough protection
a. False light has NO PER SE categories
i. There is NO SPECIAL damages (this bypasses the defamation elements)
