Privacy &
Related Issues
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The 4 Privacy Torts
1. Appropriation
2. Intrusion
3. Disclosure of private facts
4. False light
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Appropriation
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The use of an individual’s name,
likeness or identity for trade or
advertising purposes without
consent.
Oldest recognized form of
invasion of privacy.
Roberson v. Rochester Folding
Box Co., 1902, N.Y.
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What constitutes a commercial use?
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Ads
Fictional uses, such as movies
Products, such as t-shirts, posters,
mugs
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What about news, history, etc?
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Using an individual’s name or picture in a
news story, work of history, biography or other
factual use is NOT a commercial use.
“Incidental use” — Using an individual’s name
or photo to promote a news use is not
commercial use unless the promotion implies
the individual endorses the publication.
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Differences Between the Right of
Privacy and the Right of Publicity
The same action — appropriation —can violate either
an individual’s right of privacy or right of publicity.
Conceptually, however, the two rights differ.
Right of Privacy
Right of Publicity
 personal right
 proper ty right
 right to be left alone
 right to pro fit from on e’s
identity
 violation causes mental har m
 violation causes monetary
loss
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Intrusion
Definition — A highly offensive physical or
electronic intruding into someone’s private
space or solitude.
• An information-gathering, not a publication, tort.
• The legal wrong occurs at the time of the
intrusion.
• No publication is necessary.
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Notable Quote
“The First Amendment has never been construed
to accord newsmen immunity from torts or
crimes committed during the course of
newsgathering. The First Amendment is not a
license to trespass, to steal, or to intrude by
electronic means into the precincts of another’s
home or office.”
Dietemann v. Time Inc. (9th Cir. 1971)
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In determining whether intrusion has occurred,
courts often consider three questions:
1. Did the plaintiff have a legitimate expectation of
privacy?
2. Was the defendant invited in, or did she or he
actually intrude? If invited in, did the defendant
exceed the scope of the invitation or refuse to
leave after being told to do so?
3. Did the defendant use deception to gain
admission? Did the defendant engage in
misrepresentation or fraud?
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Shulman v. Group W: An example
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Cameraman for “On Scene: Emergency
Response” taped scene of an auto accident
and then followed 2 victims on board a
rescue helicopter.
Court: Accident occurred on public highway
so victims had no reasonable expectation of
privacy at accident scene. However, they did
have a reasonable expectation of privacy
onboard the helicopter.
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Taping phone conversations
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Federal law permits participant taping.
13 states require consent of all parties
for taping. If you call one of those
states, assume you are bound by the
all-party rule.
FCC rules require broadcasters to
inform people if conversations are being
taped for on-air use.
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Wiretapping
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Taping or in any way intercepting a phone
conversation, email, voice mail, etc., to which you are
not a party violates U.S. and state law.
Bartnicki v. Vopper, 2001, U.S.S.C.: A journalist who
played a tape of an illegally intercepted cell phone
conversation on the radio was not liable for
wiretapping because
 he did not intercept the call himself;
 he obtained the tape lawfully; and
 the subject matter was of public concern.
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Trespass
Criminal
• 1st degree: Entering or remaining without authorization in
a building belonging to another or on premises so enclosed
or secured as to demonstrate clearly an intent to keep out
intruders.
• 2nd degree: Entering or remaining on premises after
being told not to enter or to leave, or entering premises
marked with no trespassing or similar signs.
Civil
• Any unauthorized entry on land in the possession of
another.
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Disclosure of private facts
Definition: Publishing non-newsworthy, private
facts that would be offensive to a reasonable
person.
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Publishing — widespread dissemination
Non-newsworthy — not of public interest. Judges are very
reluctant to second-guess editors re: what is newsworthy.
Private — truly private, little-known info, not part of public
records or proceedings
Offensive — for a reasonable person, a jury determination
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Notable Cases
Cox Broadcasting v. Cohn, 1975
Information obtained from public records does not
constitute private facts and, therefore, cannot be the
basis for a disclosure of private facts lawsuit.
Florida Star v. B.J.F., 1989
A state may not punish the publication of truthful
information lawfully obtained unless necessary to
further a state interest of the highest order (a
compelling interest).
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Hall v. Post, 1988
The N.C. Supreme Court rejected the disclosure tort for
the following reasons:
 It is constitutionally suspect because it allows
recovery for the publication of truthful information and
 It duplicates or overlaps with the tort of intentional
infliction of emotional distress.
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False Light
False light is the tort of publication of highly
offensive false information.
A very problematic tort because it so often is
used as an “add-on” to a libel claim.
17
Notable Case
Time, Inc. v. Hill, 1967
In a suit for false light invasion of privacy based on a
report that is a matter of public interest, the plaintiff
can win only if he or she proves the material was
published with actual malice, that is, knowledge of
falsity or reckless disregard for truth.
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Renwick v. N&O, 1984
The N.C. Supreme Court refused to recognize false
light as a common law action in this state because
 it duplicates or, at least, overlaps with an existing
right of recovery for libel or slander and
 it is constitutionally suspect because it allows
recovery beyond that permitted in actions for libel and
slander.
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Intentional Infliction of Emotional
Distress
Intentional infliction of emotional distress is
defined as
(1) extreme and outrageous conduct,
(2) which is intended to cause and does cause
(3) severe emotional distress to another.
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Notable Case
Hustler v. Falwell, 1988
In a suit for intentional infliction of emotional
distress, a public official or public figure cannot
win unless he or she can show that a false
statement of fact was published with actual
malice.
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Negligent Infliction of Emotional
Distress
To win a suit for negligent infliction of emotional
distress, a plaintiff must prove that
1. the defendant negligently engaged in conduct;
2. it was reasonably foreseeable that such conduct
would cause the plaintiff severe emotional distress
(or “mental anguish”); and
3. the conduct did cause the plaintiff severe emotional
distress.
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