Torts: Invasion of Privacy

Invasion of privacy questions don't show up all that often on the MBE, but they do appear. You'll want to note that they can sometimes appear to be testing Defamation, and so it'll be important to distinguish between these torts. More on that below, and this note will specifically distinguish between the four main types of invasion of privacy that you'll need to know along with defenses.

(1): Appropriation of Plaintiff's Picture or Name: First, plaintiff will have to prove that the use of his picture or name was unauthorized. In addition, the use has to have been motivated by defendant's desire for commercial advantage. You'll want to look for situations in which defendant is using plaintiff's picture or name in a commercial or advertisement, even though plaintiff has not provided authorization to use his picture or name.

(2): Intrusion upon Plaintiff's Affairs or Seclusion: This would be a situation in which plaintiff objects to defendant's prying into his personal affairs. There is an objective, rather than subjective, standard (more on this @ http://mbetutorial.blogspot.com/2012/01/torts-objective-vs-subjective-standards.html), in determining whether the intrusion was objectionable. Furthermore, the thing into which there is an intrusion must be private. In other words, if a photograph is taken of plaintiff in a public place, regardless of how offended plaintiff is, he can not rely on this type of invasion of privacy as a basis for a lawsuit.

(3): Publication of Facts Placing Plaintiff in False Light: This exists where one attributes to plaintiff views he does not hold or actions he did not take. Once again, an objective standard is used, so that it's not enough that plaintiff finds the attributions objectionable; rather, plaintiff will have to prove that the attributions would have been objectionable to a reasonable person. In addition, like in Defamation, there must be publicity (the objectionable attributions have to have been made to a third party).

(4): Public Disclosure of Private Facts: This involves public disclosure of private information about plaintiff. Unlike False Light, it is not a requirement that the facts are false, but similar to False Light, the public disclosures must be objectionable to a reasonable person.

Note: In addition to the elements listed above, plaintiff will also have to prove that the invasion of his privacy was proximately caused by defendant's conduct. In regards to damages, emotional distress, and mental anguish will suffice.

Defenses: Consent is a defense to Invasion of Privacy. In addition, the absolute and qualified privileges that are a defense to a cause of action for Defamation will also apply to an action in Invasion of Privacy.