Invasion of Privacy

1
Invasion of Privacy

• Chapter Seven

2
Invasion of Privacy Four types

• Commercial Appropriation / Right of Publicity
  (Ch. 13, 5)
• Intrusion (1)
• False Light (2)
• Private Facts (3)

3
Intrusion

• 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. (Miller v.
  Brooks, p. 212)

4
Intrusion elements

• Defendant must intentionally
• Intrude upon plaintiffs reasonable expectation
  of privacy, and
• The intrusion must be one that would be offensive
  to a reasonable person.

5
False Light elements

• Defendant gives publicity to a matter
• concerning Plaintiff
• that places Plaintiff in a false light
• in a way that would be highly offensive to a
  reasonable person, and is, in fact, highly
  offensive to Plaintiff, and
• The Constitutional defamation rules apply on Ds
  fault, Ps damages, etc. (NYT v. Sullivan, Gertz,
  Hepps, et al.)

6
Private Facts Elements

• Defendant gives publicity to a matter
• Concerning Plaintiff
• That reveals true, private facts
• That are both highly offensive and not of
  legitimate concern to the public.
• Is this constitutional? Is it advisable?

7
Right of Publicity (Commercial Appropriation)

• D must appropriate Ps identity (a form of
  property)
• Seen as a violation of the right to control ones
  identity in matters of trade
• Incidental use of Ps identity (name, picture,
  etc.) is NOT actionable
• Use in news reporting, fiction, biography,
  entertainment NOT actionable

8
Right of Publicity Two most common forms

• Use of elements of Ps identity in selling
  something
• Use of Ps performance values (style,
  mannerisms, persona) in selling something

9
Distinguishing between expressive speech and
commercial speech

• California uses transformative test (Winter v.
  DC Comics, 2003)
• If persons identity is transformed into Ds
  own expression, its protected
• Rest. (Third) of Unfair Competition uses
  relatedness test
• Use of persons identity is actionable only where
  the use is solely commercial, otherwise unrelated
  to that person
• Balancing test (Doe v. TCI, 2003)
• Looks to predominant purpose of the product,
  balances expressive values against commercial
  aspects of product