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Privacy

Common Law

The common law of TORTS recognizes five discrete rights of privacy. First, the common law affords individuals the right to sue when their seclusion or solitude has been intruded upon in an unreasonable and highly offensive manner. Second, individuals have a common-law right to sue when information concerning their private life is disclosed to the public in a highly objectionable fashion. Third, tort liability may be imposed on individuals or entities that publicize information that places someone in a false light. Fourth, the common law forbids persons from appropriating someone's name or likeness without his or her consent. Fifth, the common law prevents business competitors from engaging in UNFAIR COMPETITION through the theft of trade secrets.

Intrusion upon Seclusion One who intentionally intrudes upon the solitude or seclusion of another is subject to liability for common-law invasion of privacy. An invasion may involve a physical intrusion into a place where a person has secluded herself, such as the nonconsensual entry into someone's home, office, apartment, or hotel room. Nonphysical intrusions may also give rise to liability when they involve the use of electronic surveillance equipment, including wiretaps, microphones, and video cameras. Alternatively, a person's seclusion may be impermissibly interrupted by persistent and unwelcome telephone calls, or by the occasional window peeper. By imposing liability in such instances, the law seeks to protect a person's tranquility and equilibrium.

Not every intrusion is actionable under this common-law tort. The intrusion must be considered highly offensive to a reasonable person. Creditors are allowed to take action to collect delinquent debts but must do so in a reasonable fashion. Landlords are permitted to demand late rental payments but must do so at reasonable times. A judge or jury determines what is reasonable according to the facts of each case. Individuals have no expectation of privacy in matters that are public. Thus, businesses may examine public criminal records of prospective employees without fear of liability, and photographers may take pictures of movie stars in public places.

Publicity that Discloses Private Information The common law protects individuals from publicity that discloses information about their private lives. Unlike LIBEL, slander, and DEFAMATION actions, this common-law tort may give rise to liability for truthful publicity, as long as the information is published in a manner that is highly objectionable to a reasonable person and the information is of no legitimate concern to the public. Disclosure of private sexual relations, disgraceful family quarrels, humiliating illnesses, and most other intimate personal matters will normally give rise to liability for invasion of privacy, even if such disclosures are completely accurate. By discouraging the publication of such private and personal matters, the common law places a high value on the right of individuals to control the dissemination of information about themselves, including the right to filter out embarrassing and harmful facts that might influence the opinion of others.

Liability is not usually imposed for alleged injuries relating to matters that are intended for public consumption. A person's date of birth and military record, for example, are both matters of public record that may be disclosed without invading his or her privacy. Commercial proprietors that regularly deal with the public receive little protection from disclosures that relate to the price of their products, the quality of their services, or the manner in which they conduct business. Under the First Amendment, business proprietors receive less protection of their privacy interests because the U.S. Constitution seeks to promote the free and robust exchange of accurate information to allow consumers to make informed decisions.

False-Light Publicity The common-law tort of false-light publicity protects individuals from the public disclosure of false information about their reputation, beliefs, or activities. The information need not be of a private nature nor must it be defamatory, as must libelous and slanderous statements, before liability will be imposed. Instead, a misleading publication will give rise to liability for false-light publicity when it is placed before a large segment of the public in such a way that a reasonable person would find it highly offensive. However, publication of an inaccurate story to a single person, or a small group of people, is not considered sufficiently public to constitute publicity.

A newspaper photograph printed in close proximity to a caption suggesting criminal activity on the part of the person photographed is a classic example of false-light publicity. On the other hand, a misleading photograph, such as one that has been retouched, may not give rise to liability for false-light publicity if the photograph is accompanied by a caption that clearly explains how it has been distorted. An esteemed poet may successfully sue for false-light publicity when an inferior poem is published under the poet's name. A war hero may assert a cognizable claim for false-light publicity if a story is aired that inaccurately portrays the soldier as a coward.

Public officials, such as politicians, and public figures, such as professional athletes, rarely recover for false-light publicity. Before a public official or public figure can recover for false-light publicity, the First Amendment requires proof that a story or caption was published with knowledge of its falsity or in reckless disregard of its truth, a principle that has become known as the actual malice standard (NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964]). In most instances, public officials and public figures have thrust themselves into the public spotlight. As a condition to accepting the benefits that accompany public recognition, the law requires that such persons accept a diminished level of protection of their privacy interests. Because the First Amendment confers less protection on public persons than it does on private individuals, the Constitution encourages the media to freely disseminate information about candidates for office, government officials, and other figures who influence or shape the course of events.

Appropriation of Name or Likeness One who appropriates the name or likeness of another person is subject to liability for invasion of privacy. All individuals are vested with an exclusive property right in their identity. No person, business, or other entity may appropriate someone's name or likeness without permission. Nonconsensual commercial appropriation of a person's name or likeness for advertising purposes is the most common type of conduct giving rise to liability under this common-law tort. By forbidding the nonconsensual use of a person's name or likeness, the law allows an individual to license his or her face, body, reputation, prestige, and image for remuneration.

Not every appropriation gives rise to liability for invasion of privacy. Liability will attach only when a person's name or likeness has been appropriated to obtain an immediate and direct advantage. The advantage need not yield a financial gain. However, the mere incidental use of someone's name or likeness is not a compensable appropriation.

For example, the print and electronic media may publish photographs, drawings, and other depictions of a person's name or likeness as an incidental part of their legitimate news-gathering activities without violating the common-law right to privacy. However, if a nonprofit organization uses a person's name or likeness to promote its philanthropy, it may be liable for the appropriation. The right to sue for wrongful appropriation is a personal right. Parents cannot recover damages for breach of their children's privacy, and family members cannot sue after the death of the person whose name or likeness has been misappropriated.

Theft of Trade Secrets Wrongful use, disclosure, or theft of a TRADE SECRET is actionable under the common law. Although the U.S. economy is generally governed by free-market principles, the common law requires businesses to compete fairly and forbids business rivals from stealing one another's INTELLECTUAL PROPERTY for commercial advantage. Although it is difficult to formulate a comprehensive list of what constitutes the improper acquisition of a trade secret, the common law generally makes it unlawful to engage in FRAUD, MISREPRESENTATION, or other forms of deception for the purpose of obtaining confidential commercial information.

Independent analysis of publicly available products or information is not an improper means of acquisition. Through a process known as reverse engineering, a competitor may lawfully purchase a rival's product, disassemble it, and subject it to laboratory analysis for the purpose of unlocking valuable information, such as a secret formula or process. However, aerial photography of a competitor's plant constitutes tortious interference with commercial privacy. Courts have reasoned that the law should not force commercial entities to expend additional resources to conceal their interior from every possible form of exterior exposure. Conversely, commercial entities may patent many of their valuable trade secrets before placing a product on the market where it can be analyzed by a competitor.

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