Torts!

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Torts!

• Jessica M. Neilson
• J.D., LL.M

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What is difference between privacy torts and
defamation?

• Defamation seeks to protect reputation interest.
  Privacy seeks to protect a persons interest in
  being left alone.
• Defamation requires injury to reputation privacy
  involves harm through emotional and mental
  distress.

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These Are Little Used Torts for Good Reason

• Intentional not covered by insurance
• Require making private things even more public
• Expensive
• Be willing to do research outside WA for relevant
  cases.

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Right to privacy-Implied in Constitution

• Is not explicitly in the Constitution
• SCT has found it implicitly recognized in the
  1st, 4th, 5th, 9th, 14th amendments and the
  penumbra of the Bill of Rights

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4 kinds of privacy torts

• 1. Intrusion into Seclusion
• 2. Appropriation of Picture or Name
• 3. Public Disclosure of Private Facts
• 4. False Light Privacy

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Intrusion into Seclusion(Ex Paparrazi
photographing Celebs)

• Intentional intrusion on ps private affairs,
  concerns, or seclusion
• Ds conduct is highly offensive and objectionable
  to an ordinary person
• And Substantially Interferes with Ps seclusion
• Intrusion may be a physical invasion of Ps space
  or intrusion into Ps private affairs
• Intrusion must be into Private fact (something
  general public would not be free to view)
• Police acting within their powers dont count

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Restatement Examples

•  The invasion may be by physical intrusion into a
  place in which the plaintiff has secluded
  himself, as when the defendant forces his way
  into the plaintiff's room in a hotel or insists
  over the plaintiff's objection in entering his
  home.
• It may also be by the use of the defendant's
  senses, with or without mechanical aids, to
  oversee or overhear the plaintiff's private
  affairs, as by looking into his upstairs windows
  with binoculars or tapping his telephone wires.

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Restatement Examples Contd

• It may be by some other form of investigation or
  examination into his private concerns, as by
  opening his private and personal mail, searching
  his safe or his wallet, examining his private
  bank account, or compelling him by a forged court
  order to permit an inspection of his personal
  documents. The intrusion itself makes the
  defendant subject to liability, even though there
  is no publication or other use of any kind of the
  photograph or information outlined.

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Intrusion into Seclusion Examples

• D puts a microphone in Ps bedroom?
• D records Ps telephone conversation about
  private matters and publishes?
• Person taking pictures of person in public place?
• Filming of pharmacist from outside building for a
  few seconds for legitimate news story re
  pharmacist charged with defrauding the state of
  Medicaid funds?
• Press lies to get into home of accused and
  photographs P, publishing photos without his
  consent?

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In the employment setting?

• If employee has a reasonable expectation of
  privacy, employer can violate right of privacy by
  searching employee's personal property or locker
• Liability can also attach if an employer opens
  and reads mails addressed to the employee and
  marked personal or confidential.
• Videotaping of employees without their consent in
  areas where employees have a legitimate
  expectation of privacy can also constitute the
  tort of invasion of privacy.
• Of particular concern to employers today is the
  monitoring of electronic mail (e-mail) and
  employee voice-mail.

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• What about having your mailbox overwhelmed with
  junk mail?
• "The right to privacy does not extend to the
  mailbox and therefore it is constitutionally
  permissible to sell subscription lists to direct
  mail advertisers. Shibley (Ohio SCT)

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Private Facts

• Private facts are personal details about someone
  that have not been disclosed to the public. A
  person's sexual orientation, a sex-change
  operation, and a private romantic encounter could
  all be private facts. Once publicly disclosed by
  that person, however, they move into the public
  domain.

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Offensive to a Reasonable Person

• Disclosing that the plaintiff returned 240,000
  he found on the street was held not to be
  offensive, but the publication of an "upskirt"
  photo would likely be found to be offensive to a
  reasonable person.

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Appropriation

• Purpose is to protect the "interest of the
  individual in the exclusive use of his own
  identity, in so far as it is represented by his
  name or likeness." R2T 652C
• w/o authorization
• D appropriated the reputation, prestige, or
  social or commercial standing of the Ps name or
  likeness.
• Merely adopting the name of another is
  insufficient
• Merely disclosing lists of names and addresses is
  not generally enough
• Liability can attach even if D does not get
  financial gain

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Appropriation

• Exs Publication of a person's photograph without
  consent in an advertisement
• operating a corporation named after a prominent
  public figure without the person's consent
• impersonating a man to obtain information
  regarding the affairs of the man's wife
• filing a lawsuit in the name of another without
  the other's consent. R2T 652C

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Appropriation

• Not appropriation for American Express to take
  your name and add it to list that characterizes
  spenders by their habits such as Rodeo Drive
  Chic and value-oriented

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Public Disclosure of Private Facts

• Intrusion into Seclusion is actionable regardless
  of publication or publicity
• Publicity is essential for this tort
• One who gives (1) publicity to a (2) matter
  concerning the private life of another, (3) which
  is not of legitimate concern to the public, may
  be liable for invasion of privacy (4) if the
  matter publicized would be highly offensive to a
  reasonable person.

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• Publicity means to the public (more than
  published to one other as required for
  defamation)
• Material private enough to trigger this tort
  claim could include disclosure of sexual
  orientation, medical history, or other personal,
  private facets of a persons life. The pressing
  question in public disclosure of private-facts
  cases is whether the information is newsworthy or
  of legitimate concern to the public.
  Newsworthiness is evaluated by an examination of
  several factors, including the social value of
  the disclosed material, the depth of intrusion
  into personal life, and the extent to which the
  person is already in public view. Even Louis
  Brandeis and Samuel Warren, authors of a famous
  1890 law review article, The Right To Privacy,
  wrote The right to privacy does not prohibit
  any publication of matter which is of public or
  general interest.

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Examples

• For example, publicizing the fact that your
  brother-in-law has failed to pay his mortgage for
  three months, although true, would be an invasion
  of his privacy.
• Other examples would be details of a person's
  sexual problems, physical or mental ailments.

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• Public figures (politicians, movie stars,
  professional athletes, etc.) have a somewhat
  lessened right to privacy because of the public's
  legitimate interest in their affairs. For
  example, a magazine may publish a profile of a
  politician without fear of being sued for
  invasion of privacy. The story can even include
  private facts about the public figure, but care
  must be taken that these otherwise private facts
  are within the scope of the story.

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False Light Privacy

• Actor knew of or recklessly disregarded the
  falsity of the publication and the false light in
  which the other would be placed
• The false light would be HORP (highly offensive
  to a reasonable person)

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False Light Privacy

• Attributing characteristics, conduct, or beliefs
  about a person that are false
• Doesnt have to cause them to lose reputation
  (defamation)
• If statement is both false and defamatory, the P
  can proceed upon either theory (defamation,
  invasion of privacy, or both)
• If related to MPC, then P need proof of actual
  malice (knowledge that statement was false or
  reckless disregard as to its truth or falsity)

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Examples

• when a newspaper publishes a story about
  convicted felons and includes the name or
  photograph of an innocent person,
• in a story about a hate group, the writer
  includes the name of a person not a member of
  that group.

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False Light

• Tort includes embellishment (false material added
  to a story, which places someone in a false
  light), distortion (the arrangement of materials
  or photographs to give a false impression) and
  fictionalization (works of fiction containing
  disguised characters that represent real people
  or references to real people in fictitious
  articles). Some courts may consider works of
  fiction to be constitutionally protected
  expressions even if they contain characters who
  resemble, or clearly were based on, identifiable
  individuals known by the author or creator.

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Hypos

• Jenny had a crush on James and photographed him
  picking his nose in his living room, the curtains
  of which he kept open. Jenny decides the photos
  are golden, and so publishes them in the Seattle
  Times.
• Barbara Streisands wedding was flown over by
  helicopters seeking pictures of guests. Babs gets
  mad and sues the newspaper who hired the
  helicopters.

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Hypos

• Georgina sat for a photo by an artist who later
  painted her face. He sold the painting to a
  company who used it to advertise their strawberry
  jam.

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Statutes that protect against disclosure

• See Washington practice violates statute to
  disclose certain info re the mentally ill, info
  re records of crime victims, etc.

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Unlawful Interception of Private Communications

• No interception, transmission or recording of any
  private communication or private conversation
  without the consent of all parties involved in
  the communication
• Whether it was private is a matter of fact
• A person waives any statutory right to privacy by
  leaving messages on a telephone answering machine