Invasion of Privacy

The right of privacy is a common-law (court-made) cause of action that is a fairly new legal development. The U.S. Constitution contains no direct references to the right of privacy. There are few statutes that affect privacy and most invasion of privacy lawsuits that publishers may face are of the common-law type. An action for invasion of privacy is actually comprised of four distinct torts (legal wrongs). These are: intrusion upon seclusion; appropriation of name or likeness; publicity given to private life; and publicity placing the person in a false light. Each separate cause of action is addressed below. Note: to sue successfully for invasion of privacy, a plaintiff only has to prove one of the four torts, not all of the four torts.

The right of privacy competes with the freedom of the press as well as the interest of the public in the free dissemination of news and information, and these permanent public interests must be considered when placing the necessary limitations upon the right of privacy. Pennsylvania courts have held that an action based on such right must not become a vehicle for establishment of a judicial censorship of the press.

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Intrusion Upon Seclusion

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

To be liable for intrusion upon seclusion, the plaintiff must prove the following elements:

1. Invasion of a secluded place or privacy: the Defendant (the offender) must invade the Plaintiff's (the person suing) personal or private space. The definition of this invasion is very broad. Invasion may be:

  • by physical intrusion into a place where the plaintiff has secluded himself.
  • by use of the defendant's senses to oversee or overhear the plaintiff's private affairs (such as eavesdropping or spying with a telescope), or
  • some other form of investigation or examination into plaintiff's private concerns (such as illegally obtaining someone's credit report).

2. Objectionable intrusion: the intrusion must be of a type that would be highly offensive to the ordinary reasonable person.

3. Invasion of private affairs or matters: the interference with the plaintiff's privacy must be substantial (however, if the event reported occurs in public, there is no expectation of privacy).

Examples of intrusion upon privacy include placing microphones or cameras in someone's bedroom or hacking into their computer. However, where the information that is reported pertains to the public interest as well as a party's private interest, that individual's right of privacy will be weighed against the public interest. If the event being reported is in the public interest (a newsworthy event), it will, in all likelihood, be immune to an invasion of privacy lawsuit. An example of this would be a car accident. Although it involves the personal affairs of a few people (or even only one person), the accident is reportable because it is a newsworthy event. Therefore, a person cannot sue a newspaper for invasion of privacy over a story about a car accident that includes the driver's name. Photographs taken in public are also not violative of one's privacy.

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Appropriation of Name or Likeness

Appropriation of name or likeness occurs when someone appropriates the name or likeness of another for their own use or benefit. Action for misappropriation of right of publicity protects against commercial loss caused by appropriation of an individual's personality for commercial exploitation. It gives the individual exclusive right to control the commercial value of his or her name and likeness to prevent others from exploiting that value without permission. It is similar to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection.

Courts have denied plaintiffs lawsuits unless there is a finding that the defendant obtains an economic benefit from using the plaintiff's name. Additionally, the courts are unlikely to find that there has been an appropriation of the plaintiff's likeness unless the unauthorized use was part of an advertisement or a promotion.

If such an appropriation is for a newsworthy event, the person's right to privacy is not violated. An example of this is if a photograph of someone patronizing a new restaurant is published as part of a story publicizing the opening of the restaurant. The patron cannot sue the newspaper for appropriation of name or likeness because the photograph is being used for a newsworthy event. However, if a store is using someone's picture to advertise a new line of clothes, and they have not received permission from that person to use the picture, that person's likeness has been wrongly appropriated.

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Publicity Given to Private Life

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:

1. would be highly offensive to a reasonable person, and
2. is not of legitimate concern to the public.

The main determination in a publicity given to private life lawsuit is whether the matter being publicized is public or private. If the matter is one of public concern, there is no invasion of privacy. First Amendment rights protect the publication of items of legitimate public interest. However, if the matter is not one of public concern, and it is one that people would find offensive, there is an invasion of privacy. An example of publicity given to private life would be publicizing the fact that your neighbor has failed to pay his credit card bill for three months.

Sometimes there is difficulty in determining whether something really is of legitimate public concern. Courts have held that a claim that a person violated the law is relevant and newsworthy, even though it was latter proven that the substance of the complaint was false. The example of a drunk-driving one-car accident is also illustrates this point. Although the driver may have an interest in keeping the fact that he was driving while intoxicated private, the accident occurred in public and is a newsworthy event. The public's interest in knowing about the accident outweighs the driver's interest in keeping the accident private. Additionally, matters that are of public record are not protected. If a journalist publishes a story disclosing facts that were obtained from a police press release or a court opinion, the matter is of public record and no lawsuit for publicity given to private life will be successful.

Public figures (those persons who, by their accomplishments or place in life, give the public a legitimate interest in their affairs, such as politicians, professional athletes, and even personal injury claimants) face a somewhat lessened right to privacy because more of their actions are of legitimate public concern than they would be if the public figure were an ordinary person. Because of this lessened expectancy of privacy, a newspaper can publish a biography of a public figure without fear of being sued for invasion of privacy. No permission is needed to do such a story. Additionally, the newspaper can include some facts that would otherwise be an invasion of privacy for a person who is not a public figure. Care must be taken that these otherwise private facts are within the scope of the story. Examples of these facts would be a public figure's familial background, associates, or specific events in their life that shape them into the person that they are, or that shed light as to their guilt or innocence. Public figures (those persons who, by their accomplishments or place in life, give the public a legitimate interest in their affairs, such as politicians, professional athletes, and even personal injury claimants) face a somewhat lessened right to privacy because more of their actions are of legitimate public concern than they would be if the public figure were an ordinary person. Because of this lessened expectancy of privacy, a newspaper can publish a biography of a public figure without fear of being sued for invasion of privacy. No permission is needed to do such a story. Additionally, the newspaper can include some facts that would otherwise be an invasion of privacy for a person who is not a public figure. Care must be taken that these otherwise private facts are within the scope of the story. Examples of these facts would be a public figure's familial background, associates, or specific events in their life that shape them into the person that they are, or that shed light as to their guilt or innocence.

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Publicity Placing the Person in a False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if the false light in which the other was placed would be highly offensive to a reasonable person. Examples include a newspaper publishing an innocent person's picture as part of a story about convicted felons or including reporting that someone was involved in a domestic dispute when, in fact, there was no such dispute. Publicly placing a person in a false light also includes falsely stating someone's views, such as saying that someone is a member of the Ku Klux Klan.

An important exception is when the published matter is in the public interest (newsworthy), such as an item dealing with an accident or the background of a candidate for public office. When the published matter is in the public interest, the plaintiff must show that the publisher acted with malice (that they either had a reckless disregard for the truth or they knew the report was false but published it anyway). For example, if a newspaper published a story reporting that a candidate for mayor embezzled money from his previous employer, but never attempted to verify the accuracy of the information, the newspaper can be held liable for publicly placing the candidate in a false light. It is important to keep in mind that malice can be found if the information published is without probable cause or the newspaper never checked for truth by the means at hand.

For more information about malice, see:Libel

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Special Notes on Invasion of Privacy

For a successful lawsuit, the plaintiff must prove that the defendant's actions caused his or her privacy to be invaded. Therefore, the newspaper cannot be sued for invasion of privacy if a newspaper publishes a story based upon a report that was made by someone who invaded the plaintiff's privacy. Note: the newspaper may be held responsible if the newspaper encourages someone to invade the plaintiff's privacy. Additionally, in some invasion of privacy cases, the newspaper may also be held liable for libel. Unlike libel, truth is not a defense for invasion of privacy.

Only the plaintiff holds the right to privacy. It is a personal right. It does not survive the plaintiff (the defendant cannot be sued for invasion of privacy actions that occur after the death of the person whose privacy was invaded), nor can it be asserted on behalf of family members. Invasion of privacy lawsuits cannot be brought by, or on behalf of, corporations.

Successful plaintiffs may recover damages for harm to their interest in privacy, mental/emotional distress, and special damages caused by the invasion of privacy.

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Pennsylvania's Wiretap Act

Pennsylvania's "Wiretapping and Electronic Surveillance Control Act," found at 18 Pa.C.S.A. 5701 et seq., makes it a crime to intercept or record conversations when parties have an expectation of privacy. See 18 Pa.C.S.A. 5703. Pennsylvania is a two-party consent state, which means that both parties must agree to the recording. The PNA advises journalists wishing to record a conversation to get permission before the recording starts and obtain permission again, after the recording has begun, so that there is a record of consent. The penalty for a violation of the Wiretap Act is a third degree felony. Read more about recording conversations in Pennsylvania and the Wiretap Act from the Digital Media Law Project and the Reporters Committee for the Freedom of the Press 

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