Privacy Torts — Intrusion, Appropriation, and False Light (Part 2 of 2)

The two core elements for intrusion upon seclusion are: (1) the defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns; and (2) the intrusion would be highly offensive to a reasonable person.

Physical intrusion involves a tangible invasion of a private space, such as breaking into someone's home. Nonphysical intrusion involves less tangible but still invasive conduct, like wiretapping a phone line or using a drone to peer into someone's backyard.

A reasonable expectation of privacy means that the plaintiff actually expects a certain degree of privacy in a particular place or situation, and that this expectation is one that society is prepared to recognize as legitimate. A person typically has a reasonable expectation of privacy in their own home.

"Use...for the defendant's benefit" in appropriation means the defendant gains some advantage from using the plaintiff's identity, which is often commercial but can also include benefits like increased fundraising for a charity using a celebrity's endorsement without permission.

The "newsworthiness exception" in appropriation generally protects the use of a person's identity in news reporting or matters of legitimate public interest, arguing that the public's right to know outweighs the individual's right to control their identity in such contexts.

False light primarily addresses the emotional and dignitary harm caused by the public dissemination of false or misleading information that places an individual in an offensive light. This differs from defamation, which focuses on harm to an individual's reputation.

A statement could be technically true but create a false light if it is presented in a misleading context. For example, using an old photograph of someone at a protest to illustrate a news story about a completely unrelated and controversial current event could falsely imply the person's involvement or stance on the current issue.

The "actual malice" standard in false light cases requires the plaintiff to prove that the defendant knew the information was false or acted with reckless disregard for its truth or falsity. This higher standard of fault typically applies when the plaintiff is a public figure or the matter involves public interest, balancing free speech concerns with privacy rights.

A key difference is that false light requires a "public disclosure," meaning the information must be widely disseminated. Intrusion upon seclusion, however, does not require any disclosure; the tort occurs at the moment of the invasive act itself.

The tort of appropriation of name or likeness, particularly for celebrities and public figures, can evolve into the "right of publicity," which recognizes the commercial value of an individual's identity as a property right that they can control and profit from.