The Privacy Torts

•Public Disclosure of a Private Fact •Intrusion •False Light •Appropriation

“The common law has always recognized a man’s house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?” From

The right of privacy

(1890), Samuel Warren and Louis Brandeis

The First Tort:

Public Disclosure of a Private Fact

Publication that would be:

Highly offensive

to a reasonable person Is not of legitimate concern Sue for shame, humiliation and mental anguish

Defenses:

1. 1st Amendment = publish truthful information from the public record 2. Newsworthy 3. Consent

The Second Tort:

Intrusion

A tort of newsgathering “highly intrusive physical, electronic, or mechanical invasion of another’s solitude or seclusion” 1. Intrusion into public and quasi-public places permitted: eye and ear 2. Intrusion into private places: no third party monitoring, but participant monitoring (Federal level, some states) 3. Trespass: if accompanied by officials

The Third Tort:

False Light Tort of publicity

“dissemination of highly offensive publicity about someone with knowledge of, or reckless disregard for falsity 1. Distortion: Editing and placement 2. Fictionalization

Cantrell v. Forest City Publishing

(1974)

The Fourth Tort:

Appropriation

“Unauthorized commercial use of another’s name or picture in an advertisement, poster, public relations promotion or other commercial context.” Goes beyond actual image to “one’s distinctive appearance and character.”

Defenses:

1. Newsworthy 2. Consent

Companion Torts 1. Fraud

Food Lion

2. Emotional Distress

Hustler Magazine v. Falwell

3. Shocking News Content and Tactics 4. Trespass

Criminal Statutes 1. Photo Stalking 2. Identity Betrayal (as criminal, not civil, law) Plame matter 3. Wiretapping/Electronic Eavesdropping Gingrich incident