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Invasion of Privacy

5. What is the tort – “invasion of privacy”?

Invasion of privacy is comprised of three principle types of invasion of personal interest:

•    Use of Name or Likeness – Individuals have a property interest in their name and physical image. As such, appropriating an individual’s name or likeness for business use without her consent violates her property rights.

⁃    Note: Before using anyone’s picture or name, a business must obtain a proper release from that person to avoid possible liability.

⁃    Example: Using a candid picture of Ann smiling in an advertisement for a local business without her consent violates her personal rights.

⁃    Discussion: Do you agree with the idea that an individual has an ownership interest in her name or physical likeness? Does it matter to you the nature of the likeness? Should a drawing or painting of an individual receive the same protections as a photograph or video? Why or why not?

⁃    Practice Question: Judy owns a supermarket. She is advertising the sale of basketballs. She puts a small caption in her weekly newspaper flyer that uses an image of Steve Curly, a professional basketball player. Is there a legal issue?

•    Invade Physical Solitude – Individuals have an expectation of privacy in their home and within other personal spaces. Viewing or monitoring such places is an invasion on the individual’s physical solitude.

⁃    Example: Entering a person’s home, spying through windows, illegal wiretapping, and persistent unwanted telephoning all may constitute an invasion of privacy.

⁃    Discussion: Do you think that an individual should have a right to prevent individuals from spying or eaves dropping on them in private places? What amount of effort should be required to constitute an invasion and how would you measure it? Should an individual have to show damages to bring an action for invasion of physical solitude?

⁃    Practice Question: Scott is walking by Karla’s house and sees her through the window. She forgot to close the blinds and is walking around her bedroom in a state of undress. Scott is very curious and makes an effort to get a better view. He even climbs the tree growing beside the street on public property to get a better view. Has Scott committed at tort against Karla?

•    Disclosure of Private Information – Disclosure of highly-objectionable, private information about someone may be an invasion of that person’s privacy. Generally, the information must be obtained by an individual who owes a duty of confidentiality to the individual whose rights are violated. In some cases, the information must be obtained without the person’s consent.

⁃    Note: A personal or professional relationship could give rise to a confidential relationship.

⁃    Example: A nurse disclosing someone’s private medical information could constitute an invasion of privacy. The tort generally requires that the private information result in disclosure to the public at large.

⁃    Discussion: What type of information should be considered private for purposes of an invasion of privacy? Why? Should it matter whether there is a relationship between the individual whose information is disclosed and the discloser?

⁃    Practice Question: Deshaun works in a pharmacy as a technician. One day, Dolly comes to the window and requests to fill a prescription. The prescription is for a medicine commonly used to treat a common venereal disease. Deshaun does not like Dolly, so he immediately gossips to friends about Dolly’s medication. The friends post the information on a popular social media site and the news quickly travels back to Dolly. Has Deshaun committed a tort?

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