Invasion of Privacy Damages and Recovery

Let's say you accidentally leave a personal letter containing private information on a public park bench, and that letter is picked up and read by someone else. Even if the sharing of this information damages your reputation or causes other harm, it is not a violation of your privacy. That requires a "reasonable expectation of privacy", which would apply if the letter was not left out in public.

But if you're having a private conversation in your home and a neighbor uses an electronic device to eavesdrop, then your expectation of privacy has been violated. This is because you have a reasonable expectation that your neighbor is not surveilling your home.

An invasion of privacy occurs when there is an intrusion upon your reasonable expectation to be left alone. This article covers the four main types of invasion of privacy claims, an intentional tort primarily controlled by state laws.

The four main types of invasion of privacy claims are:

1. Intrusion of Solitude
2. Appropriation of Name or Likeness
3. Public Disclosure of Private Facts
4. False Light

The following information explores these types of claims and the basics of invasion of privacy law in general.

1. Intrusion of Solitude

Intruding upon another's solitude or private affairs is subject to liability if the intrusion is considered highly offensive to a reasonable person. This tort is often associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records.

Taking photographs of someone in public would not be invasion of privacy; however, using a long-range camera to take photos of someone inside their home would qualify. Making a few unsolicited telephone calls may not constitute a privacy invasion, but calling repeatedly after being asked to stop would be intrusive.

Hypothetical Example: A man with binoculars regularly climbs a tree in his yard and watches a woman across the street undress through her bathroom window.

2. Appropriation of Name or Likeness

Plaintiffs may make a claim for damages if an individual (or company) uses their name or likeness for benefit without their permission. Usually this involves a business using a celebrity's name or likeness in an advertisement. Some states even limit this type of privacy tort to commercial uses.

Appropriation is not always committed in the commercial context. For example, a private detective who impersonates someone else to obtain confidential information has invaded that person's privacy. The recognition of this tort is like a property right; in other words, a person's name and likeness is treated as that person's property. For celebrities, this is often referred to as "right of publicity".

Hypothetical Example: An advertising agency approaches musician Paul McCartney to participate in a television campaign for a new automobile. McCartney, who has a distinctive and easily recognizable voice and appearance, declines. The advertisers hire someone who looks and sounds like him to appear on television, prompting McCartney to sue the automaker for appropriating his likeness.

3. Public Disclosure of Private Facts

This type of invasion of privacy claim must be weighed against the First Amendment's protection of free speech. Unlike defamation (libel or slander), truth of the disclosed information isn't a defense; however, if a defendant can show that the disclosed information is a matter of public concern, he or she may have a strong defense. If an individual publicly reveals truthful information that is not of public concern and which a reasonable person would find offensive if made public, they could be liable for damages.

For example, a woman about to deliver a baby via caesarian section agrees to allow the operation to be filmed for educational purposes only, but instead it's shown to the public in a commercial theater. This is an invasion of her privacy. However, publishing an article about a politician known for his family values who is having an affair with a staffer is of public concern and therefore not an invasion of his privacy. Some states including New York don't recognize this type of claim.

Hypothetical Example: The maiden name of a former prostitute who was acquitted of murder is revealed in a film about the case. Since her acquittal, she has moved to another city, gotten married, and adopted a new lifestyle. Her new friends are unaware of her past until the reveal, so the disclosure of this true-but-embarrassing information is deemed an invasion of her privacy.

4. False Light

A false light claim is similar to a defamation claim in that it allows an individual to sue for the public disclosure of information that is misleading (or puts that person in a "false light"), but not technically false. The key difference is that defamation claims only apply to the public dissemination of false information and as with defamation, sometimes First Amendment protections prevail.

Generally, a false light claim must contain the following elements: (1) the defendant made a publication about the plaintiff; (2) it was done with reckless disregard; (3) it placed the plaintiff in a false light; and (4) it would be highly offensive or embarrassing to a reasonable person.

Real-World Example: A 96-year-old woman sued an Arkansas newspaper for printing her picture next to the headline, "Special Delivery: World's oldest newspaper carrier, 101, quits because she's pregnant!" The woman, who was not pregnant, was awarded damages of $1.5 million.

Get Legal Help with an Invasion of Privacy Claim

Privacy issues are complicated and emotional, which can result in highly contentious court proceedings. Whether your privacy has been violated, or someone is accusing you of violating their privacy, you may benefit from a lawyer's assistance in preparing your case. Contact a local attorney with invasion of privacy law experience to learn how they can help you defend your rights in court.