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United States privacy law embodies several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain. Public figures have less privacy, and this is an evolving area of law as it relates to the media.

The right to privacy include individuals' Constitutional rights against the government. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Courtmarker as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.

Invasion of privacy tort law

Invasion of privacy is a commonly used cause of action in legal pleadings. In the United States, the development of the doctrine regarding this tort was largely spurred by an 1890 Harvard Law Review article written by Samuel D. Warren and Louis D. Brandeis on The Right of Privacy. Modern tort law includes four categories of invasion of privacy:
  1. Intrusion of solitude: physical or electronic intrusion into one's private quarters.
  2. Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
  3. False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
  4. Appropriation: the unauthorized use of a person's name or likeness to obtain some benefits.


Intrusion of solitude and seclusion

Intrusion of solitude occurs where one person exposes another to unwarranted publicity. In a famous case from 1944, author Marjorie Kinnan Rawlings was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek. The Florida Supreme Courtmarker held that a cause of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no actual damages.

Intrusion upon seclusion occurs when a perpetrator intentionally intrudes, physically, electronically, or otherwise, upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, by use of the perpetrator's physical senses or by electronic device or devices to oversee or overhear the person's private affairs, or by some other form of investigation, examination, or observation intrude upon a person's private matters if the intrusion would be highly offensive to a reasonable person. Hacking a computer is an example of intrusion upon privacy. In determining whether intrusion has occurred, one of three main considerations may be involved: expectation of privacy; whether there was an intrusion, invitation, or exceedance of invitation; or deception, misrepresentation, or fraud to gain admission. Intrusion is “an information-gathering, not a publication, tort…legal wrong occurs at the time of the intrusion. No publication is necessary.”

Restrictions against the invasion of privacy encompasses journalists as well:
“The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.”


Public disclosure

Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person."Unlike libel or slander, truth is not a defense for invasion of privacy." Disclosure of private facts includes publishing or widespread dissemination of little-known, private facts that are non-newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public.

False light

False light is a legal term that refers to a tort concerning privacy that is similar to the tort of defamation. For example, the privacy laws in the United Statesmarker include a non-public person's right to privacy from publicity which puts them in a false light to the public; which is balanced against the First Amendment right of free speech.

False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being." If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.

The specific elements of the Tort of false light vary considerably even among those jurisdictions which do recognize this tort. Generally, these elements consist of the following:
  1. A publication by the Defendant about the Plaintiff;
  2. made with actual malice (very similar to that type required by New York Times v. Sullivan in "Defamation" cases);
  3. which places the Plaintiff in a false light; AND
  4. that would be highly offensive (i.e., embarrassing to reasonable persons).


Thus in general, the doctrine of false light holds:
"One who gives publicity to a matter concerning another before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."


For this wrong, money damages may be recovered from the first person by the other.

At first glance, this may appear to be similar to defamation (libel and slander), but the basis for the harm is different, and the remedy is different in two respects. First, unlike libel and slander, no showing of actual harm or damage to the plaintiff is usually required in false light cases, and the court will determine the amount of damages. Second, being a violation of a Constitutional right of privacy, there may be no applicable statute of limitations in some jurisdictions specifying a time limit within which period a claim must be filed.

Consequently, although it is infrequently invoked, in some cases false light may be a more attractive cause of action for plaintiffs than libel or slander, because the burden of proof may be less onerous.

What does "publicity" mean? A newspaper of general circulation (or comparable breadth) or as few as 3-5 people who know the person harmed? Neither defamation nor false light has ever required everyone in society be informed by a harmful act, but the scope of "publicity" is variable. In some jurisdictions, publicity "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."

Moreover, the standards of behavior governing employees of government institutions subject to a state or national Administrative Procedure Act (as in the United States) are often more demanding than those governing employees of private or business institutions like newspapers. A person acting in an official capacity for a government agency may find that their statements are not indemnified by the principle of agency, leaving them personally liable for any damages.

Example: If someone's reputation was portrayed in a false light during a personnel performance evaluation in a government agency or public university, one might be wronged if only a small number initially learned of it, or if adverse recommendations were made to only a few superiors (by a peer committee to department chair, dean, dean's advisory committee, provost, president, etc.). Settled cases suggest false light may not be effective in private school personnel cases, but they may be distinguishable from cases arising in public institutions.

Appropriation of name or likeness

Although privacy is often a common-law tort, most states have enacted statutes that prohibit the use of a person’s name or image if used without consent for the commercial benefit of another person.

Appropriation of name or likeness occurs when a person uses the name or likeness of another person for personal gain or commercial advantage. Action for misappropriation of right of publicity protects a person against loss caused by appropriation of personal likeness for commercial exploitation. A person's exclusive rights to control his or her name and likeness to prevent others from exploiting without permission is protected in similar manner to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection.

Appropriation is the oldest recognized form of invasion of privacy involving the use of an individual’s name, likeness or identity without consent for purposes such as ads, fictional works, or products.

"The same action appropriation —can violate either an individual’s right of privacy or right of publicity. Conceptually, however, the two rights differ."

Constitutional basis for right to privacy

Federal

Although the word "privacy" is actually never used in the text of the US Constitution, there are Constitutional limits to the government's intrusion into individuals' right to privacy. This is true even when pursuing a public purpose such as exercising police powers or passing legislation. The Constitution, however, only protects against state actors. Invasions of privacy by individuals can only be remedied under previous court decisions.

The Fourth Amendment to the Constitution of the United States ensures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The First Amendment provides a right to free assembly, broadening privacy rights.

The Ninth Amendment declares that the fact a right is not explicitly mentioned in the Constitution does not mean that the government can infringe on that right.

The Supreme Courtmarker recognized the Fourteenth Amendment as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in Griswold v. Connecticut, a 1965 decision protecting a married couple's rights to contraception. It was recognized again in 1973 Roe v. Wade which invoked the right to privacy to protect a woman's right to an abortion.

California

Article 1, §1 of the California Constitution articulates privacy as an inalienable right.

References

  1. US Legal Definitions[1]
  2. Right to Privacy Law & Legal Definition [2]
  3. *William Prosser, Privacy, 48 Calif.L.Rev. 383 (1960).
  4. Cason v. Baskin, 20 So. 2d 243 (Fla. 1944) (note: Baskin was Rawlings' married name).
  5. Invasion of Privacy, Intrusion Upon Seclusion [3]
  6. Privacy Torts, Intrusion [4]
  7. Dietemann v. Time Inc. (9th Cir. 1971)
  8. Privacy Torts, Section 9 [5]
  9. Common Law Privacy Torts
  10. Invasion of Privacy [6]
  11. Privacy Torts, Disclosure of Private Facts [7]
  12. False Light by Professor Edward C. Martin - Cumberland School of Law, Samford University
  13. Restatement 2d of Torts § 652E (1977)
  14. Simmons, Jack H., Donald N. Zillman, and David D. Gregory (2004) Maine Tort Law. Newark: LexisNexis, citing Cole v. Chandler (Me. 2000) 104, 752 A.2d 1189, 1196.
  15. Gautschi v. Maisel, 565 A.2d 1009 (Me. 1989).
  16. Invasion of Privacy, Appropriation of Name or Likeness [8]
  17. Privacy Torts, Appropriation [9]
  18. Privacy Torts, Differences Between the Right of Privacy and the Right of Publicity [10]
  19. Charters of Freedom - The Declaration of Independence, The Constitution, The Bill of Rights


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