1. Publication of Private Facts
The common law elements of this tort are:
A public disclosure
That would be highly offensive to a reasonable person
That is not a legitimate concern of the public
Courts have been reluctant to uphold this claim against a media outlet, but have done so on occasion.
Cases in which this type of action can succeed include:
Where private medical information is given out
If there’s a good reason to give out the information (e.g., to allay the fears of co-workers), the action is unlikely to be successful.
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2. Publication of Private Facts and the Media
The courts have been very reluctant to hold media outlets liable for publishing truthful information. Examples:
Media source not liable for publishing rape victim’s name in violation of state law because the information was a matter of public record
This rule was extended to any time the information was acquired lawfully, even from sources other than the courtroom or public records
This rule applies in general to more “newsworthy” information obtained legally and from public sources
However, where the privacy interest is very strong, it may outweigh freedom of the press
e.g., the name of a witness in the witness protection program
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Defenses
Newsworthiness (as discussed)
This is very broad and has been applied even where:
A nude photograph was published (taken in a public place)
The sexual orientation of a person was published (it was deemed to be relevant to a newsworthy story)
The revelations were made off the record and very embarrassing
A person or story who is once newsworthy may remain newsworthy even long after the story has disappeared from the public consciousness.
Consent
This can be implied, such as appearing in a public place.
Consent gained by trick is invalid.
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4. Intrusion or Trespass Upon Seclusion
This tort recognizes a general right to be left alone. It can be brought where a media outlet gains information though:
Secretly recorded conversation
Overly aggressive surveillance
Photos taken with high tech cameras that reach into private places not generally accessible from the public domain
For the most part, anything that happens in public is fair game for the media
This even includes quasi-public places such as a restaurant
Although, of course, the restaurant owner may throw the media out
Where the coverage crosses over to harassment though, the courts will stop it, and may even enjoin the offending media outlet from covering the subject
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5. Intrusion into Private Places
Third Party Monitoring
It is a tort (and a crime in some places) to “bug” a room or a phone without the consent of at least one participant.
This includes internet communications, , cell phone calls, etc.
Participant Monitoring
This means “taping” a communication that one party to the communication is aware of.
Federal law allows this; but FCC rules regulate this:
Telephone companies must stop people from recording conversations unless both parties agree
Broadcasters must notify radio callers if their conversations are being recorded for broadcast
Some states prohibit participant monitoring without both parties’ consent
Secret Recording
Whether illegal or not, this can be a tort if done by subterfuge, etc.
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6. Invasion of Privacy by Trespass
This involves a physical trespass, not just an intercepted communication or picture, etc.
This has actually been applied to internet “domain” space and addresses
So, if you can track down a spammer, you can sue him for trespass
Journalists can be liable for fraud for gaining access to property by fraud (e.g., lying about the story they’re doing)
Accompanying officials to a news story (like a fire) is generally not trespass if the public officials “invite” the press.
But this has been limited to emergency situations (where the homeowner’s permission cannot be sought in time)
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Trespass (continued)
A public official entering a home against the will of the homeowners (such as executing a search warrant) may not “invite” the press.
In addition, journalists who accompany police on any mission do not gain the privileges of law enforcement even if they are helping the authorities in certain ways.
Receiving “stolen” information is NOT generally a tort.
So, if a third party trespasses and gets information and gives it to a journalist, the journalist may generally use it
Of course, if the journalist was involved in planning the trespass, that’s another story.
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False Light
Definition under the Restatement of Torts:
The dissemination of highly offensive false publicity about someone with knowledge of or reckless disregard for its falsity
This can apply even if what was printed is technically true if its context indicates or implies something untrue
Example of false light publications
Distortion of the facts
Adding a fictional element to what is otherwise a true story
Using the context to create a false impression even though everything states is true
The same Constitutional protections apply as with Defamation in terms of public figures, actual malice, etc.
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Commercialization
This tort occurs when one misappropriates someone’s name or face for commercial purposes. This action can be based on:
The shame and humiliation felt by the victim when his/her name or face is used in connection with something s/he didn’t authorize (in this case, it’s similar to false light)
The right of “publicity,” i.e., the right to control the commercial value of one’s own name and face
Therefore, this tort applies even after the victim is dead
The tort can apply to nicknames, trademarks, etc.,
i.e., anything associated by the public with that celebrity
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Commercialization 2
The use of look-alikes and sound-alikes can also be a tort of commercialization when the defendant is simply using the victim’s “name” or “face” to garner publicity.
However, when it’s done as a satire, it’s political speech and heavily protected
Any use of a person’s name or image for trade purposes can be this tort even if the person is not a celebrity and even if no endorsement or actions are implied. Thus, it can apply where:
A person is used as a model for a product without consent
A person’s picture is used on fliers or the like, even if they have nothing to do with the product itself
Etc.
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11. First Amendment/ Public Interest Defense
Where information is being disseminated for public purposes, it’s much harder to maintain an invasion of privacy suit. This includes:
An incidental person posing with a politician or celebrity
Political posters (with candidates’ pictures on them)
Photos of celebrities in public places (i.e., not obtained illegally) are generally protected
Newsworthiness Rule
Coverage of any emergency or newsworthy event that includes pictures of private people is not a tort, even if it contains pictures of private people.
Media outlets may even use “news” photos in self-promotion
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12. Infliction of Emotional Distress and Physical Harm
Invasion of privacy can also be intentional or negligent infliction of emotional distress.
However, this kind of suit is hard to win because:
Intentional infliction requires extreme and outrageous conduct;
If not accompanied by physical symptoms, it’s hard to show such severe emotional distress so as to warrant an award.
Even in emotional distress cases, the Constitutional rules regarding public figures, actual malice, etc., apply so as to protect freedom of expression of ideas.
Saying that a media statement caused or incited an injury is difficult to show because free speech is protected under the Brandenburg standard of “imminent lawless action.”
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