United States privacy laws embody 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 her private affairs, discloses her private information, publicizes her in a false light, or appropriates her name for personal gain.[1] 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 includes 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 Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.[2]
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:[3]
- Intrusion of solitude - physical or electronic intrusion into one's private quarters.
- Public disclosure of private facts -- the dissemination of truthful private information which a reasonable person would find objectionable
- False light - the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
- 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.[4] The Florida Supreme Court 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.[5] 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.” [6]
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.”[7][8]
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[9]. "Unlike libel or slander, truth is not a defense for invasion of privacy."[10] 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.[11]
False light
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Main article: 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 States 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."[12] 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.[12]
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:
- A publication by the Defendant about the Plaintiff;
- made with actual malice (very similar to that type required by New York Times v. Sullivan in "Defamation" cases);
- which places the Plaintiff in a false light; AND
- that would be highly offensive (i.e., embarrassing to reasonable persons).[12]
Appropriation of name or likeness
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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.citation needed
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. [13]
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.[14]
"The same action — appropriation —can violate either an individual’s right of privacy or right of publicity. Conceptually, however, the two rights differ."[15]
Constitutional right to privacy
There are Constitutional limits to the government's intrusion of 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 with under the above private laws.
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."
First Amendment provides a right to free assembly, breadthening privacy rights.
The Supreme Court recognizes 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 married couple's rights to contraception. It was recognized again in 1973 Roe v. Wade which used the right to privacy to protect a woman's right to an abortion.
References
- ^ US Legal Definitions[1]
- ^ Right to Privacy Law & Legal Definition [2]
- ^ *William Prosser, Privacy, 48 Calif.L.Rev. 383 (1960).
- ^ Cason v. Baskin, 20 So. 2d 243 (Fla. 1944) (note: Baskin was Rawlings' married name).
- ^ Invasion of Privacy, Intrusion Upon Seclusion [3]
- ^ Privacy Torts, Intrusion [4]
- ^ Dietemann v. Time Inc. (9th Cir. 1971)
- ^ Privacy Torts, Section 9 [5]
- ^ Common Law Privacy Torts
- ^ Invasion of Privacy [6]
- ^ Privacy Torts, Disclosure of Private Facts [7]
- ^ a b c False Light by Professor Edward C. Martin - Cumberland School of Law, Samford University
- ^ Invasion of Privacy, Appropriation of Name or Likeness [8]
- ^ Privacy Torts, Appropriation [9]
- ^ Privacy Torts, Differences Between the Right of Privacy and the Right of Publicity [10]
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