United States privacy law embodies several different
legalLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
concepts. One is the
invasion of privacy, a
tortTort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or liable, for those injuries...
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 figurePublic 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 malice...
s have less privacy, and this is an evolving area of law as it relates to the
mediaMass media denotes a section of the media specifically designed to reach a very large audience such as the population of a nation state. The term was coined in the 1920s with the advent of nationwide radio networks, mass-circulation newspapers and magazines. However, some forms of mass media such...
.
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 AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
right to free assembly, and the
Fourteenth AmendmentThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
due process right, recognized by the
Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
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 actionIn the law, a cause of action is a set of facts sufficient to justify a right to sue. The phrase may refer to the legal theory upon which a plaintiff brings suit ....
in legal
pleadingIn 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, such as a complaint, a demurrer, or an answer. A complaint is the first pleading filed by a plaintiff which initiates a lawsuit...
s. In the United States, the development of the doctrine regarding this tort was largely spurred by an 1890
Harvard Law ReviewThe Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:The Review is one of the most cited law reviews in the United States. It is published monthly from November through June, with the November issue dedicated to covering...
article written by
Samuel D. WarrenSamuel Dennis Warren was a Boston attorney.Warren graduated second in the 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 on
The Right of Privacy. Modern tort law includes four categories of invasion of privacy:
- Intrusion of solitude
Solitude is a state of seclusion or isolation; i.e., lack of contact with people. It may stem from bad relationships, deliberate choice, contagious disease, disfiguring features, repulsive personal habits, mental illness, or circumstances of employment or situation .Short-term solitude is often...
: 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 RawlingsMarjorie 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 CourtThe Supreme Court of the State of Florida is the state supreme court of the U.S. state of Florida. Established upon statehood in 1845, the court is headquartered in the state capitol of Tallahassee....
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 privacyIn 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
tortTort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or liable, for those injuries...
concerning
privacyPrivacy 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 StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
include a
non-public person'sPublic 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 malice...
right to privacy from
publicityPublicity 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 puts them in a false light to the
publicPublic, adj, is of or pertaining to the people; relating to, or affecting, a nation, state, or community; opposed to private; as, the public treasury, a road or lake...
; which is balanced against the
First AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
right of free speech.
False light
lawLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
s are "intended primarily to protect the
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
's
mentalMind is the aspect of intellect and consciousness experienced as combinations of thought, perception, memory, emotion, will and imagination, including all unconscious cognitive processes. The term is often used to refer, by implication, to the thought processes of reason. Mind manifests itself...
or
emotionAn emotion is a mental and physiological state associated with a wide variety of feelings, thoughts, and behavior. Emotions are subjective experiences, often associated with mood, temperament, personality, and disposition. The English word 'emotion' is derived from the French word émouvoir...
al well-being." If a
publicationTo publish is to make content publicly known. The term is most frequently applied to the distribution of text or images on paper, or to the placing of content on a website....
of
informationInformation as a concept has many meanings, from everyday usage to technical settings. The concept of information is closely related to notions of constraint, communication, control, data, form, instruction, knowledge, meaning, mental stimulus, pattern, perception, and representation.The English...
is
falseFalse is the antonym of the adjective true.False is the 2nd album of Gorefest, False .False may also refer to:* False, a pseudonym for electronic musician Matthew Dear.* FALSE, an esoteric stack-oriented programming language...
, then a tort of defamation might have occurred. If that
communication Communication is a process of transferring information from one entity to another. Communication processes are sign-mediated interactions between at least two agents which share a repertoire of signs and semiotic rules. Communication is commonly defined as "the imparting or interchange of...
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
jurisdictionJurisdiction 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.Alternatively, jurisdiction is the authority given...
s which do recognize this tort. Generally, these elements consist of the following:
- A publication by the 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 PlaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
;
- made with actual malice
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. SullivanNew 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);
- which places the Plaintiff in a false light; AND
- that would be highly offensive
Morality has three principal meanings.In its first, descriptive usage, morality means a code of conduct or belief concerning matters of what is moral or immoral...
(i.e., embarrassingEmbarrassment is an emotional state experienced upon having a socially or professionally 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. It is similar to...
to reasonable personThe reasonable person is a legal fiction of the common law representing 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 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 actorA state actor is a term used in United States law to describe 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...
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."
The
First AmendmentThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the Congress from making laws "respecting an establishment of religion", prohibiting the free exercise of religion, infringing on the freedom of speech and infringing on the freedom of the...
provides a right to free assembly, broadening privacy rights.
The
Ninth AmendmentAmendment IX 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 CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
recognized the
Fourteenth AmendmentThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in
Griswold v. ConnecticutGriswold v. Connecticut, 381 U.S. 479 , 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. WadeRoe v. Wade, , a landmark case decided by the United States Supreme Court on the issue of abortion, is one of the most controversial and politically significant cases in U.S. Supreme Court history.In Roe v...
which invoked the right to privacy to protect a woman's right to an abortion.
California
Article 1, §1 of the
California ConstitutionThe Constitution of the State of California is 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...
articulates privacy as an inalienable right.
External links