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Right to Privacy
University of Connecticut School of Law
Klau, Daniel J.

Right to Privacy
Daniel Klau
Spring 2010
I)      Statutory
A)    Public Disclosure of Private Facts
1)     Elements
o   Publicity of a
o   Private fact that is of
o   High offensive to reasonable person and
o   Not of legitimate public concern (newsworthy)
2)    Defense
o   1st
B)    Intrusion Upon Seclusion (also look for WIRETAP claim)
1)    Intentional intrusion upon… (Must be on purpose)
2)     Physically “or otherwise”
3)     Solitude, seclusion, private affairs
4)    Highly offensive to reasonable person
C)    ECPA (Also look for INTRUSION claim)
1)     FICA
II)   Constitutional
A)    1st
B)    4th
C)     14th
D)    3rd, 5th
Part 1: Common Law Right to Privacy: Private Facts and Intrusion
I)      Public Disclosure of Private Facts (“Public Disclosure” or “Private Fact” Tort) 1
A)    Tort attempts to balance competing values of privacy v. right of public to know
B)    π must prove everything
1)     Publicity of a 1
o   Publicity is NOT the same as publish it requires widespread dissemination
§  Majority of cases hold that the publicity requirement is satisfied when the method of publication is through a mass media device, regardless of the number of people who actually saw it.
2)     Private fact that is of 2
o   Setting 2
§  Tellado Case pg. 596 (Vietnam veteran photo in textbook—picture was taken in a “clearly public setting”—holding for ∆) 2
§  Daily Times Democrat v. Graham pg. 598 (Women at county fair with dress blow up—held for π) 2
o   Passage of Time/Rehabilitation
§  Rehabilitation and passage of time transforms public information into private information
§  The Red Kimono Case pg. 597 (Prostitute—passage of time made public facts private—held for π)
§  Briscoe v. Reader’s Digest Ass’n pg. 615 (Former criminal—now rehabilitated—passage of time = public facts private/held for π) (This case may no longer be good law as a result of Cox and Florida Star) 2
·         Briscoe says level of infamy (public figure v. private) should be decided by jury
o   Public Figures
§  Sidis v. F-R Publishing Corp. pg. 610 (Child genius—still “public figure” held for ∆) 3
3)     High offensive to reasonable person and 3
o    Community standards of decency as the limiting principle in disclosure cases
o   Tort protects not only individual interest in privacy, but also community norms about privacy
4)     Not of legitimate public concern (newsworthy) (In this tort, all the action is in this element) 3
o   Descriptive v. Normative
§  Is this something society cares about? (If there is demand, then it is newsworthy) (Descriptive)
§  Should it be a matter of public concern? (Normative)
o   Shulman v. Group W Productions, Inc. (Westlaw) (Woman in accident on TV/The broadcast was newsworthy as a matter of law and, therefore, could not be the basis for tort liability under a private facts claim/held for ∆ on private facts claim) 3
§  What is newsworthy under Shulman?
·         News in the classic sense
·         Educational programming
·         Entertainment in

aging through files, etc.
o   Rhodes v. Graham (Ky.1931) pg. 537 (Tapped phone lines and phone company equipment (outside house)/Held for π) 5
3)     Solitude, seclusion, private affairs 6
4)     Highly offensive to reasonable person 6
o   Element of community norms—intended to reinforce community norms and morals
B)    Acquisition v. Publication 6
o   Hamberger v. Eastman (N.H. 1964) pg. 539 (Listening device in bedroom/held for π)
o   Intrusion into solitude because it causes mental distress, even though it is possible that no information was gathered
2)     Phillips v. Smalley Maintenance Services, Inc. (Ala. 1983) pg. 541 (Note case—sexual harassment—found for π) 6
o   Smalley court rejected the view that “acquiring information” or “surreptitious actions” were sine qua nons [required] for recovery under the privacy intrusion tort.
3)     Unclear line between insulting, ill-mannered, bad behavior as opposed to actionable behavior
4)     Nader v. General Motors Corporation (N.Y. 1970) pg. 546 (Public surveillance/held for ∆) 6
o   Extreme public surveillance for an extended period of time may constitute intrusion (compiling bits and pieces of public info and assembling it together somehow transforms its character)