Invasion of Privacy

There are four types of invasion of privacy in the subject of Torts that show up on the MBE. Each of the four tend to test specific aspects, and these are the points that should be kept in mind going into the exam:

Appropriation of Plaintiff's Picture or Name: The use of the picture or name must be unauthorized and must be for defendant's commercial advantage. In other words, defendant must use plaintiff's picture or name intending to benefit commercially from the use (for example, by promoting a product).

Intrusion upon Plaintiff's Seclusion: Here, you should examine whether the intrusion would be objectionable to a reasonable person. Note carefully that this is an objective test so that if plaintiff is excessively sensitive but a reasonable person would not have been offended, then the elements of this tort have not been satisfied. In addition, photographs taken of plaintiff in a public place will not form a basis for this tort; rather, the place into which there is an intrusion must be private.

Publication of Facts Placing Plaintiff in False Light: False light exists where one attributes to plaintiff views he does not hold or actions he did not take. As with intrusion into seclusion, this type of invasion of privacy requires that the false light be something objectionable to a reasonable person. As with defamation, for liability there must have been publication (communication of the facts constituting false light) to someone other than plaintiff.

Publication Disclosure of Private Facts about Plaintiff: As with the above, the public disclosure must be objectionable to a reasonable person. It's important to note that public disclosure of private facts, even if those facts are true, can form the basis for a valid cause of action, making this an option when the elements of defamation have not been satisfied.