Privacy

Question 1

Appropriation of Plaintiff’s Name or Likeness

Answer 1

Unauthorized use of P’s name or likeness for D’s advantage—if public official then only if used for trade or ads. Appropriation requires proof of some actual value.

To establish a cause of action for invasion of privacy by appropriation of one’s name and likeness, P must demonstrate:

1. That D used P’s name or likeness w/out authorization for a commercial purpose
   
   1. It is not a defense if P is customer or user of product. If P is not user and ad hurts reputation, may also be defamation.
   2. Not actionable if there is consent
   3. Some cases have extended protection to other features associated with P’s identity.
   4. Right of publicity v. right of privacy
      
      1. a celebrity is entitled to damages because their name has commercial value and right to publicity was interfered with.
      2. unknown person is entitled to compensation for interference with her “right to be alone,” and is therefore an invasion of privacy.
2. Causation
   
   1. same as intrusion; essential element.
3. Defense
   
   1. newsworthiness is a defense so long as publication is not for trade or advertising.
   2. No constitutional privilege for some noncommercial uses that destroy right of publicity
      
      1. media cannot air an entire commercial entertainment/performance that will impair performer’s right to get paid
   3. Newsworthiness privilege inapplicable to promotional materials depicting noncurrent events.
4. Damages
   
   1. Celebrity plaintiffs: compensated for any loss sustained by being unable to sell name, features, or act to some other company. D will not profit.
   2. private P’s: emotional harm is likely to be the main element.

Question 2

Intrusion into Plaintiff’s Private Life or Affairs

Answer 2

Elements:

1. highly offensive intrusion by defendant into P’s private life
   
   1. the law protects areas of P’s life that P can reasonably expect will not be intruded upon. (corporations do not have right to privacy).
   2. types of intrusion: physical (trespass) or nonphysical (ex: being photographed or spied on).
   3. highly offensive: must be highly offensive to a reasonable person
2. intent or negligence
   
   1. P need only show that D intended the intrusion; P need not show that D intended to offend P.
   2. One court held that D who negligently permits a third party to intrude is liable for that intrusion. (ex: phone company gives husband number of estranged wife).
3. causation
   
   1. D’s conduct must have been the cause in fact and the proximate cause of the invasion of P’s interest in privacy and the ensuing damage
   2. No publication of is necessary since the interest protected here is P’s “right to be let alone.”

Defense: if there is consent, there is no cause of action.

Damages: pure emotional distress and mental anguish are sufficient damages; thus, P need not prove any special damages or pecuniary loss.

Question 3

Public Disclosure of Private Facts

Answer 3

1. Highly offensive public disclosure by D of private facts about P
   
   1. a private fact:
      
      1. aspects of P’s life that have not already received some publicity and that are not left open to public observation or inspection.
   2. matters of public record are not private (ex: age from birth records or dishonorable discharge from military service)
   3. Public occurrences (eg: photos taken in public) are not private.
   4. voluntary public figures have no right to privacy concerning reports of public activities/appearances
   5. not every disclosure of P’s private affairs is actionable - must be highly offensive.
   6. the disclosure must involve publicity, communication to the public at large or to enough individuals that it is likely to reach public.
2. No legitimate public interest
   
   1. P must prove that facts are not “newsworthy.” In other words, of public interest, even if it is in bad taste.
   2. Voluntary public figures: must be newsworthy if it is a private fact
   3. Involuntary public figures: also must be newsworthy to be published.
3. Fault in making the disclosure
   
   1. different from defamation because that involves falsity whereas here the story is true. This essential element is related to the action that gave rise to the highly offensive disclosure.
4. Causation
   
   1. As with instrusions, causation is an essential element.
5. Defenses
   
   1. Truth is no defense
   2. Consent is a complete defense
   3. To assure freedom and speech and press, a constitutional privilege for hte media has been recognized in the public disclosure area.
      
      1. matters of public record are okay
      2. lawfully obtained from government are also okay
6. Damages
   
   1. Same as ones for intrusions

Question 4

Publicity Placing Plaintiff in a “False Light”

Answer 4

1. Publication by D that places P in a false light (highly offensive) (knowing or reckless falsity if “newsworthy” matter)
   
   1. Publication: must be disseminated to a reasonable number of people
   2. Falsity required: must be highly offensive to a reasonable person
2. Causation - an essential element
3. Distinguish - Defamation
   
   1. If the “false light” would affect P’s reputation, an action for defamation may also lie. Most states will prevent P from escaping restrictions of defamation law simply by calling the action one for privacy.
   2. A handful of states do not recognize false light because it so closely relates to defamation.
4. Fault
   
   1. 1st Amendment protects media (and other) D’s from liability for some false light publications
   2. Newsworthy statements by the media that put P in a false light are not actionable unless the “knowing or reckless falsity” standard is met.
   3. P must prove that D entertained actual doubts about the accuracy of charges or must have published the info with malice.
5. Damages
   
   1. P may recover for damage to reputation, any emotional distress suffered, and for pecuniary damages.