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Chapter 22



§ 22.01 Overview [451-452]


The Restatement has defined four separate torts for invasion of privacy: intrusion upon seclusion, appropriation of plaintiff's name or picture, placing the plaintiff in a false light before the public, and public disclosure of private facts.  [See generally Restatement § 652A.]  All four privacy torts enjoy general judicial acceptance today.


§ 22.02 Intrusion Upon Seclusion [452-453]


The Restatement § 652B defines the tort as: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”


The tort addresses acts of intrusion and other interferences with a victim's “zone of privacy.” There is no requirement that information be obtained or communicated; it is the intrusion itself that constitutes the interference. While such interference may also constitute trespass, there is no requirement that trespass be committed. [See, e.g., Pearson v. Dodd, 410 F.2d 701, 704 (D.C. Cir. 1969), cert. denied, 395 U.S. 947 (1969).]


§ 22.03 Appropriation of Name or Picture and the Right of Publicity [453-455]


The Restatement § 652C defines the tort as: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”


The tort applies to an unauthorized endorsement of a product.  [See, e.g., Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938).]  It does not, however, apply to journalistic articles or books about a person.


§ 22.04 False Light [455-457]


The privacy tort of false light overlaps in large measure with defamation.


The elements of false light which must be established by all plaintiffs include the defendant's (1) publicizing (2) false facts (3) that a reasonable person would object to.  [Restatement § 652E.]  In the case of a matter of public interest, all plaintiffs (public or private) must in addition establish that the defendant acted with New York Times malice (knowledge of falsity or reckless disregard toward the truth).  [See New York Times v. Sullivan, 376 U.S. 254 (1964).]


False facts that a reasonable person would object to encompass a broad category that includes, but is not limited to, defamatory statements actionable under defamation. [See, e.g., Time v. Hill, 385 U.S. 374 (1967).]


§ 22.05 Public Disclosure of Private Facts [457-460]


The tort elements include (1) publicity of (2) private facts (3) highly offensive to a reasonable person which are (4) not of a legitimate public interest.  [See Restatement § 652D.]


The requirement that the facts be private has been rigorously enforced by courts. For example, the United States Supreme Court has held in two cases that information even unintentionally placed in the public record and thus subject to inspection cannot be actionable under the First Amendment.  [See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); The Florida Star v. B.J.F., 491 U.S. 524 (1989).]

above is text from Lexis-Nexis Summary of Torts

updated: 7/10/11

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