Friday, June 25, 2010
2 - Invasion of Privacy
Invasion of Privacy (Part 2)
PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL. IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR. IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.
There are four types of Invasion of Privacy:
1. Intrusion upon seclusion
2. Appropriation of name or likeness
3. False light
4. Public disclosure of private facts
1 - Intrusion: The intrusion can be physical or otherwise. The key is that the intrusion must be upon Plaintiff’s solitude, seclusion or private affairs and it must be highly offensive to a reasonable person – an objective standard. It is important to know that the intrusion must be based upon matters that are entitled to remain private.
2 - Appropriation: Here, the action must be based on the name or likeness of Plaintiff, without permission, but for the purpose of taking advantage of Plaintiff’s reputation. Note that it does not need to be based upon a business or commercial purpose, though some states may have that as a requirement.
3 - False Light: Here, the main issue is that Defendant’s act must place Plaintiff before the public in false light. The false light must be highly offensive to the reasonable person – again, an objective standard, and Defendant must have had knowledge of the falsity or Defendant must have acted – placed the false matter before the public – in a reckless disregard of the falsity. As a constitutional constraint, Plaintiff must prove that Defendant knew the statement was false or acted in reckless disregard of its truth or falsity.
4 - Public Disclosure: This is the situation where Defendant publicized a private fact about Plaintiff that is highly offensive to the reasonable person – an objective standard. As a constitutional constraint is that the matter disclosed is not a matter of legitimate public concern. If it is, the matter is not actionable.
Damages in a Privacy cause of action is measured by the harm to Plaintiff’s interest in the privacy, any mental distress if it is the type that would normally result from the invasion and any special damages resulting from the invasion.
Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.