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Invasion of privacy

Invasion of privacy

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Encyclopedia
United States privacy law embodies several different legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

 concepts. One is the invasion of privacy, a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 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 figure
Public figure
Public figure is a legal term applied in the context of defamation actions as well as invasion of privacy. A public figure cannot base a lawsuit on incorrect harmful statements unless there is proof that the writer or publisher acted with actual malice...

s have less privacy, and this is an evolving area of law as it relates to the media
Mass media
Mass media refers collectively to all media technologies which are intended to reach a large audience via mass communication. Broadcast media transmit their information electronically and comprise of television, film and radio, movies, CDs, DVDs and some other gadgets like cameras or video consoles...

.

The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right. These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 right to free assembly, and the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 due process right, recognized by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.

Early years


The early years in the development of privacy rights began with British common law which protected "only the physical interference of life and property." Its development of tort remedies is "one of the most significant chapters in the history of privacy law." Those rights expanded to include a "recognition of man's spiritual nature, of his feelings and his intellect." Eventually, the scope of those rights broadened even further to include a basic "right to be let alone," and the former definition of "property" would then comprise "every form of possession – intangible, as well as tangible." By the late 19th century, interest in privacy grew as a result of the growth of print media, especially newspapers.

Between 1850 and 1890, U.S. newspaper circulation grew 1,000 percent—from 100 papers with 800,000 readers to 900 papers with more than 8 million readers. In addition, newspaper journalism became more sensationalistic, and was termed yellow journalism
Yellow journalism
Yellow journalism or the yellow press is a type of journalism that presents little or no legitimate well-researched news and instead uses eye-catching headlines to sell more newspapers. Techniques may include exaggerations of news events, scandal-mongering, or sensationalism...

. The growth of industrialism led to rapid advances in technology, one product of which was portable, hand-held, cameras, as opposed to earlier studio cameras, which were much heavier and larger. In 1884, Eastman Kodak
Eastman Kodak
Eastman Kodak Company is a multinational imaging and photographic equipment, materials and services company headquarted in Rochester, New York, United States. It was founded by George Eastman in 1892....

 company introduced their Kodak Brownie, and it became a mass market
Mass market
The mass market is a general business term describing the largest group of consumers for a specified industry product. It is the opposite extreme of the term niche market.-General:...

 camera by 1901, cheap enough for the general public. This allowed people and journalists to take candid snapshots in public places for the first time.

Samuel D. Warren
Samuel D. Warren (US attorney)
Samuel Dennis Warren was a Boston attorney.Warren graduated from Harvard College in 1875 and graduated second in his class at Harvard Law School in 1877. The first-place student was his friend Louis Brandeis, later a justice of the United States Supreme Court...

 and Louis D. Brandeis, young partners in a new law firm, feared that this new small camera technology would be used by the "sensationalistic press." Seeing this becoming a likely challenge to individual privacy rights, they wrote the "pathbreaking" Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...

article in 1890, "The Right to Privacy". According to legal scholar Roscoe Pound
Roscoe Pound
Nathan Roscoe Pound was a distinguished American legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936...

, the article did "nothing less than add a chapter to our law," and in 1966 legal textbook author, Harry Kalven
Harry Kalven
Harry Kalven, Jr. was an American jurist, regarded as one of the preeminent legal scholars of the 20th century. He was the Harry A. Bigelow Professor of Law at the University of Chicago Law School. Kalven coauthored, with Charles O...

, hailed it as the "most influential law review article of all." As recently as 2001, in the Supreme Court case of Kyllo v. United States, 533 U.S. 27 (2001), the article was cited by a majority of justices, both those concurring and those dissenting.

Brandeis and Warren Article


The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the Warren and Brandeis article, "The Right to Privacy". In it, they explain why they wrote the article in its introduction: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." More specifically, they also shift their focus on newspapers:
"The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers....The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."


They then clarify their goals: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is."

Warren and Brandeis write that privacy rights should protect both businesses and private individuals. They describe rights in trade secrets and unpublished literary materials, regardless whether those rights are invaded intentionally or unintentionally, and without regard to any value they may have. For private individuals, they try to define how to protect "thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts." They describe such things as personal diaries and letters needing protection, and how that should be done: "Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence
Breach of confidence
The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of...

, and of an implied contract." They also define this as a breach of trust
Breach of Trust
Breach of Trust is a Canadian alternative rock band originally from La Ronge, Saskatchewan. The band currently consists of vocalist Marty Ballentyne, guitarist Donovan Bruyere, bass guitarist Colin Cheechoo and drummer William Aubut...

, where a person has trusted that another will not publish their personal writings, photographs, or artwork, without their permission, including any "facts relating to his private life, which he has seen fit to keep private." And recognizing that technological advances will become more relevant, they write:
"Now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation."

Modern tort law


In the United States today, "invasion of privacy" is a commonly used cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...

 in legal pleading
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...

s. Modern tort law includes four categories of invasion of privacy:
  1. Intrusion of solitude
    Solitude
    Solitude is a state of seclusion or isolation, i.e., lack of contact with people. It may stem from bad relationships, deliberate choice, infectious disease, mental disorders, neurological disorders or circumstances of employment or situation .Short-term solitude is often valued as a time when one...

    :
    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
Marjorie Kinnan Rawlings
Marjorie Kinnan Rawlings was an American author who lived in rural Florida and wrote novels with rural themes and settings. Her best known work, The Yearling, about a boy who adopts an orphaned fawn, won a Pulitzer Prize for fiction in 1939 and was later made into a movie, also known as The...

 was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek. The Florida Supreme Court
Florida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...

 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 into someone else's computer is a type of intrusion upon privacy, as is secretly viewing or recording private information by still or video camera. In determining whether intrusion has occurred, one of three main considerations may be involved: expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...

; 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
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 concerning privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...

 that is similar to the tort of defamation. For example, the privacy laws in the United States include a non-public person's
Public figure
Public figure is a legal term applied in the context of defamation actions as well as invasion of privacy. A public figure cannot base a lawsuit on incorrect harmful statements unless there is proof that the writer or publisher acted with actual malice...

 right to privacy from publicity
Publicity
Publicity is the deliberate attempt to manage the public's perception of a subject. The subjects of publicity include people , goods and services, organizations of all kinds, and works of art or entertainment.From a marketing perspective, publicity is one component of promotion which is one...

 which puts them in a false light to the public
Public
In public relations and communication science, publics are groups of individuals, and the public is the totality of such groupings. This is a different concept to the sociological concept of the Öffentlichkeit or public sphere. The concept of a public has also been defined in political science,...

; which is balanced against the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 right of free speech.

False light law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

s are "intended primarily to protect the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

's mental
Mind
The concept of mind is understood in many different ways by many different traditions, ranging from panpsychism and animism to traditional and organized religious views, as well as secular and materialist philosophies. Most agree that minds are constituted by conscious experience and intelligent...

 or emotion
Emotion
Emotion is a complex psychophysiological experience of an individual's state of mind as interacting with biochemical and environmental influences. In humans, emotion fundamentally involves "physiological arousal, expressive behaviors, and conscious experience." Emotion is associated with mood,...

al well-being." If a publication
Publication
To publish is to make content available to the public. While specific use of the term may vary among countries, it is usually applied to text, images, or other audio-visual content on any medium, including paper or electronic publishing forms such as websites, e-books, Compact Discs and MP3s...

 of information
Information
Information in its most restricted technical sense is a message or collection of messages that consists of an ordered sequence of symbols, or it is the meaning that can be interpreted from such a message or collection of messages. Information can be recorded or transmitted. It can be recorded as...

 is false
False
False or falsehood may refer to:*False *Lie or falsehood, a type of deception in the form of an untruthful statement*Falsity or falsehood, in law, deceitfulness by one party that results in damage to another...

, then a tort of defamation might have occurred. If that communication
Communication
Communication is the activity of conveying meaningful information. Communication requires a sender, a message, and an intended recipient, although the receiver need not be present or aware of the sender's intent to communicate at the time of communication; thus communication can occur across vast...

 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 jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s which do recognize this tort. Generally, these elements consist of the following:
  1. A publication by the Defendant
    Defendant
    A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

     about the Plaintiff
    Plaintiff
    A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

    ;
  2. made with actual malice
    Malice (legal term)
    Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. Malice is expressed when there is manifested a deliberate intention unlawfully to take away the life of a human being...

     (very similar to that type required by New York Times v. Sullivan
    New York Times Co. v. Sullivan
    New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...

    in "Defamation" cases);
  3. which places the Plaintiff in a false light; AND
  4. that would be highly offensive
    Morality
    Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...

     (i.e., embarrassing
    Embarrassment
    Embarrassment is an emotional state of intense discomfort with oneself, experienced upon having a socially unacceptable act or condition witnessed by or revealed to others. Usually some amount of loss of honour or dignity is involved, but how much and the type depends on the embarrassing situation...

     to reasonable person
    Reasonable person
    The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...

    s).


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."

Federal


Although the word "privacy" is actually never used in the text of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, 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 actor
State actor
In United States law, a state actor is a person who is acting on behalf of a governmental body, and is therefore subject to regulation under the United States Bill of Rights, including the First, Fifth and Fourteenth Amendments, which prohibit the federal and state governments from violating...

s. 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." However these rights have been changed by modern court rulings. One such ruling which allowed police without a warrant to place a tracking device on a suspect's automobile and follow him without his knowledge.

The First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 provides a right to free assembly, broadening privacy rights. The Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...

 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 Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 recognized the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...

, a 1965 decision protecting a married couple's rights to contraception. It was recognized again in 1973 Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...

 which invoked the right to privacy to protect a woman's right to an abortion.

California


Article 1, §1 of the California Constitution
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...

 articulates privacy as an inalienable right.

CA SB 1386 expands on privacy law and guarantees that if a company exposes a Californian's sensitive information this exposure must be reported to the citizen. This law has inspired many states to come up with similar measures.

California's "Shine the Light" law (SB 27, CA Civil Code § 1798.83), operative on January 1, 2005, outlines specific rules regarding how and when a business must disclose use of a customer's personal information and imposes civil damages for violation of the law.

California's Reader Privacy Act was passed into law in 2011. The law prohibits a commercial provider of a book service, as defined, from disclosing, or being compelled to disclose, any personal information relating to a user of the book service, subject to certain exceptions. The bill would require a provider to disclose personal information of a user only if a court order has been issued, as specified, and certain other conditions have been satisfied. The bill would impose civil penalties on a provider of a book service for knowingly disclosing a user's personal information to a government entity in violation of these provisions.

Montana


Article 2, §10 of the Montana Constitution
Montana Constitution
The Constitution of the State of Montana is the primary legal document providing for the self-governance of the U.S. State of Montana. It establishes and defines the powers of the three branches of the government of Montana, and the rights of its citizens...

 states "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."

External links