Invasion of Privacy
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Invasion of Privacy

Invasion of Privacy

Under the heading of Invasion of privacy there are four separate causes of action; 1.) intrusion upon seclusion, 2.) appropriation of identity 3.) public disclosure of private fact and 4.) false light.  This means that when you get an essay question where the call of the question asks you for liability for Invasion of Privacy you need to address all four of these torts best you can (and if they apply, there is always an exception).

Appropriation of Likeness

Appropriation of likeness:  Using the likeness or name of plaintiff for commercial gain without proper approval or authorization.  This fact pattern generally presents itself in the form of a celebrity having their picture used in a newspaper or as an advertisement without their approval.  Appropriation of likeness is also a fan favorite in MCQ’s.  Does anyone remember this question from the 1980’s test:

“Actor, a well-known film star, was photographed by a freelance photographer, while sitting at a sidewalk cafe, drinking beer with a bottle of Foamus Light Beer on the table in front of him.  The picture was reproduced in Magazine, a publication containing stores and articles about the film industry, in connection with a story about the eating and drinking tastes of the stars.  The label on the beer bottle was clearly visible in the picture.

The following month, advertisements for Foamus Light Beer appeared in other publications and carried a reproduction of the page from Magazine on which Actor’s picture appeared, with the heading “Drink the beer that movie stars drink.”

There are two MCQ’s attached to this particular question focusing on your understanding of the element of commercial advantage.  One question asks “If Actor asserts a claim against Magazine, will Actor prevail?” and the other asks “If Actor asserts a claim against Foamus Light Beer based on the advertisement in the other publications, will Actor prevail?”  Just looking at the call of these two questions what is the difference in the two parties and what do the parties do (financial gain) in the fact pattern? One is making money and the other not.  Forgive me while I sing “One of these things is not like the other, one of these things just isnt the same.”  This  is why reading the call of the question and identifying with surgical precision the question asked is so important.

Intrusion Upon Seculsion

Intrusion upon seclusion: When one has a reasonable expectation of privacy and that privacy is breached.  One of my favorite past FYLSE, June 2011, Question 2, has a Torts fact pattern that raises discussable issues surrounding Intrusion Upon Seclusion.

“Paula has owned property in a relatively undeveloped area near the top of Black  Mountain for many years.

Six years ago, Telephone Company erected a cell phone transmission tower on Black Mountain not far from Paula’s property.

Four years ago, Paula built a cabin on her property and began to spend most of her free  time there engaging in bird watching and other outdoor activities.

Last year, Telephone Company leased space on the tower for an emergency alert siren  and agreed to install the siren and to test it regularly. The site was chosen because it allows the siren’s warning to carry farther than from any other site.

Telephone Company promptly installed the siren. Since its installation, it has tested the siren for a five-minute period weekly. The resulting sound is so loud as to cause Paula to stop whatever she is doing and cover her ears. It also greatly reduces the local bird population.

Two months ago, Paula sent a letter to Telephone Company outlining the effects of the siren and demanding that it cease its activities. Telephone Company has not responded to Paula’s demand.

Does Paula have any claim against Telephone Company? Discuss.”

At first glance every automatically see’s the nuisance but if you use all the skills you have been taught in 1L you will realize there is more than meets the eye.  Do you see Negligence, what about intrusion upon seclusion, or maybe you saw a battery, some can argue strict liability, what about you?

False Light

False Light in public eye:  False light occurs when one makes false statements or takes action to represent untruths about the plaintiff.  If the matter is of public concern, malice must be proved.  When discussing the elements necessary for false light remember the false light must be such that a reasonable person would find it highly offensive.  When discussing False Light in an essay, remember to use headings and to distinguish your analysis between False Light, and if you are also discussing it, Defamation.  The two are similar but have varying rule statements and elements.  It is often when we encounter similar theories together in one essay that our writing becomes garbled and the graders cannot easily give us credit for issues.  This is why headings and underlining are so important; it helps distinguish your theories and analysis of issues.

Public Disclosure of Private Fact

Public disclosure of private facts: This occurs when defendant publicizes information about the plaintiff which is private in nature.  The disclosure must be shown to be highly offensive to a reasonable person; here is that reasonable person again.  The private facts must be communicated and presented to the public at large and the private facts/disclosure must be related to the plaintiffs private life and not a matter of public record.  This means driver records, public phone numbers, who they are married to, are not matters of private fact.

Don’t forget that you also have to cover that the disclosure was the actual and proximate cause of the harm suffered.  Sometimes when we see fact patterns we forget to connect the last few dots because we think they “explain themselves”, but this is how many of us lose points on an essay and even worse, write ourselves out of an essay.

Under the heading of defenses, consent and the constitutional defenses from defamation – absolute privileges and qualified privileges are the three main defenses available to defendant.


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