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What is the tort – “Invasion of Privacy”?
Invasion of privacy is comprised of three principal 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?
- Under the offence of invasion of privacy, appropriation of name or likeness occurs when someone publicly uses the name or likeness of another person for their own benefit. ‘Benefit’ is broadly defined, but generally refers to using people’s name or likeness for ‘advertising purposes’ or ‘purposes of trade’. A person’s public image is something which should remain under the person’s control. A person may license the right to use their name or likeness, but unauthorized usage is considered an illegitimate appropriation. The exception to this law is if the name or image is “newsworthy” as prohibiting media outlets from displaying images or using names when reporting or commenting on the news would likely violate the “freedom of the press”. In the example from the practice question, there is a legal issue when Judy decides to use the photo of a celebrity to advertise her products without the consent of the celebrity. https://lawshelf.com/videos/entry/the-torts-of-invasion-of-privacy
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?
- Invasion of physical solitude or intrusion into seclusion occurs when someone intentionally intrudes into the private affairs of another person. The legal standards for intrusion upon seclusion requires that the intrusion be intentional and highly offensive to a reasonable person. To make out an intrusion on seclusion claim, a plaintiff must generally establish the following elements;
- That the defendant, without authorization, must have intentionally invaded the private affairs of the plaintiff.
- The invasion must be offensive to a reasonable person.
- That the matter that the defendant intruded upon must involve a private matter.
- The intrusion must have caused mental anguish or suffering to the plaintiff.
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?
- Disclosure of private information or public disclosure of private facts is the publication of the private affairs of another person when the disclosure would be highly offensive to a reasonable person. A person can sue another person for publication of private facts about them, even if those facts are true. The term “private facts” refers to information about someone’s personal life that has not previously been revealed to the public, that is not of legitimate public concern and the publication of which would be offensive to a reasonable person. A claim for disclosure of private information should meet the following requirements;
- The information must be disclosed publicly.
- The information should be private facts and not generally known to others.
- The publication of the private information must be offensive to a reasonable person.
- The facts disclosed must not be newsworthy. Meaning that the facts disclosed must not be a matter of legitimate public concern.
Witzleb, Normann, Interim Injunctions for Invasions of Privacy: Challenging the Rule in Bonnard v. Perryman? (March 15, 2014). Normann Witzleb, David Lindsay, Moira Paterson and Sharon Rodrick (eds), Emerging Challenges in Privacy Law: Comparative Perspectives, Cambridge University Press, 2014; Monash University Faculty of Law Legal Studies Research Paper 2014/03. Available at SSRN: https://ssrn.com/abstract=2498401