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Privacy Torts 

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The courts and legislatures in the United States have developed a right to privacy that belongs to all citizens. The right to privacy is essentially the right to be left alone and to live without unjustified interference by the public into private matters. 

As an experienced lawyer can explain, there are several types of invasions of the right to privacy for which the law affords a tort remedy. The most common causes of action are: 

  1. Appropriation of one’s name or likeness
  2. Intrusion upon seclusion 
  3. False light
  4. Public disclosure of private facts 

States differ on which of these causes of action they recognize, as well as what elements are required to prove them, so you should be sure to check your state’s laws if you are considering bringing an action for a violation of your right to privacy. 

Appropriation of Name or Likeness

The cause of action for the appropriation of one’s name or likeness protects a person’s right to control the use of their identity for business purposes. A violation of this aspect of the right to privacy typically involves the unauthorized use of another’s picture or name for commercial purposes. The tort of appropriation of one’s name or likeness generally has four elements: 

  • The defendant used the plaintiff’s name, likeness, or identity;
  • The use was for the defendant’s benefit (usually for advertising or economic purposes); 
  • The defendant’s use was without the plaintiff’s consent; and
  • The defendant’s use caused the plaintiff harm.

There is an exception to this tort when the plaintiff’s name or likeness is newsworthy, because prohibiting media outlets from using names or images when reporting the news would violate the First Amendment’s freedom of the press guarantee. 

Intrusion Upon Seclusion 

The tort of intrusion upon seclusion occurs when a person intentionally invades the private affairs of another person. The tort of intrusion upon seclusion generally has two elements: 

  1. The defendant intentionally intruded into the plaintiff’s private affairs, seclusion, or solitude; and
  2. The defendant’s intrusion would be offensive to a reasonable person.

For example, the tort of intrusion upon seclusion would occur if your neighbor looked through the window of your home to take photos of you or recorded your private conversations. Intrusion upon seclusion is not limited to physical invasions of one’s privacy – it includes any area in which a person has a reasonable expectation of privacy. Therefore, the intrusion upon seclusion also occurs when a person seeks disclosure of private confidential information about another person.

False Light

The tort of false light protects a person’s right to be free from public disclosure of misleading or damaging personal information, even if the information is technically true. False light generally requires that the plaintiff prove three elements:

  1. The defendant publicly disclosed information about the plaintiff; 
  2. The information placed the plaintiff in a false light; and
  3. The false light would be offensive to the reasonable person.

Additionally, many states also require that the plaintiff prove the defendant acted with actual malice, especially if the plaintiff is a celebrity or a public official. A person acts with actual malice if they act with knowledge that a statement is false or with reckless disregard for whether a statement is false. 

Public Disclosure of Private Facts 

Public disclosure of private facts protects the right to keep details of one’s private life – such as health and financial information and sexual conduct – from becoming public knowledge. A plaintiff generally must prove three elements to succeed in a claim for public disclosure of private facts:

  1. The defendant publicized a matter concerning the plaintiff’s private life;
  2. The publicized matter would be offensive to the reasonable person; and
  3. The publicized matter is not of legitimate public concern.

Most states also require the plaintiff to show that the defendant disseminated the information in such a manner that it was substantially certain to become public knowledge. 

Thanks to Eglet Adams for their insight on the privacy torts.

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