Privacy torts, false light, and the right of publicity

Black-letter propositions

1. 01

   Invasion of privacy is an umbrella for four claims: intrusion on seclusion, public disclosure of private facts, false light, and appropriation of a person's name or likeness; all rest on an unwelcome or unauthorized intrusion on private life.

2. 02

   Appropriation is a statutory claim in states like California: a person who knowingly uses another's name, voice, signature, photograph or likeness on products or in advertising or selling without prior consent is liable for the greater of $750 or actual damages plus attributable profits, and punitive damages and attorney's fees are available.

3. 03

   A use in connection with news, public affairs, sports broadcasts or accounts, or a political campaign does not require consent under California's statute, and the presence of paid advertising in the medium does not by itself make a use commercial.

4. 04

   The Supreme Court held in Zacchini that the First Amendment does not immunize the news media from liability for broadcasting a performer's entire act without consent.

5. 05

   Time v. Hill held that the Constitution precludes applying a false-light style statute to false reports of matters of public interest absent proof that the defendant published with knowledge of falsity or in reckless disregard of the truth.

6. 06

   A state may not impose liability for truthful publication of information from public records or lawfully obtained on a matter of public significance unless a state interest of the highest order requires it: Cox Broadcasting protected a victim's name taken from open court records, and Florida Star protected a name lawfully obtained from a police report.

7. 07

   Bartnicki held that a stranger's illegal interception of a communication does not remove the First Amendment shield from publication of that communication on a matter of public concern by someone who did not take part in the interception.

8. 08

   California also makes a person liable for physical invasion of privacy, by entering land without permission to capture an image or recording of a private, personal or familial activity in a manner offensive to a reasonable person, and for constructive invasion using a device to capture what could not otherwise be captured.

Use this attack sequence under time

Common wrong turns

• A truthful publication can still support an intrusion claim if the information was gathered by an offensive intrusion, but publication of lawfully obtained truthful information on a public matter is protected.
• Advertising in a magazine article does not make the article an appropriation unless the use of the person's likeness is directly tied to the advertising.
• The right of publicity does not protect a person from news use of a name or likeness.

Worked example

A gym prints a local yoga instructor's photograph on a flyer advertising a new class package, without asking her, after she posted the photo online.

Practice this topic

The four claims and appropriation

Cornell's Wex entry describes invasion of privacy as an umbrella over several claims, among them intrusion on seclusion, public disclosure of private facts, false light and appropriation. It says each turns on an unwelcome or unauthorized intrusion upon a person's private life, and it recalls Katz v. United States as the case that fixed the reasonable expectation of privacy in the Fourth Amendment setting.

California Civil Code section 3344 is a statutory appropriation claim. It makes liable anyone who knowingly uses another's name, voice, signature, photograph or likeness on products or goods, or for advertising or selling, without prior consent, for the greater of $750 or actual damages plus profits from the use, with punitive damages and attorney's fees available. Subdivision (d) says a use in connection with news, public affairs or sports accounts or a political campaign is not a use requiring consent. In Zacchini v. Scripps-Howard Broadcasting, the Supreme Court held that the First Amendment does not immunize the media when they broadcast a performer's entire act without his consent.

Constitutional limits on publication

Time, Inc. v. Hill involved a magazine article that falsely presented a play as a reenactment of a family's real ordeal. The Court held that the constitutional protections for speech and press preclude applying the New York statute to redress false reports of matters of public interest without proof that the defendant published with knowledge of falsity or in reckless disregard of the truth.

Cox Broadcasting v. Cohn held that a state may not impose sanctions on the accurate publication of a rape victim's name obtained from judicial records that are open to public inspection. Florida Star v. B.J.F. applied a related principle from Smith v. Daily Mail: if a newspaper lawfully obtains truthful information about a matter of public significance, state officials may not punish publication absent a need to further a state interest of the highest order. Bartnicki v. Vopper held that privacy concerns gave way, when balanced against the interest in publishing matters of public importance, so that a stranger's illegal conduct does not remove the First Amendment shield from speech about a matter of public concern.

Physical and constructive invasion of privacy

California Civil Code section 1708.8 creates liability for physical invasion of privacy when a person knowingly enters land, or the airspace above it, without permission, or otherwise commits a trespass, to capture a visual image, sound recording or other impression of a plaintiff engaged in a private, personal or familial activity, in a manner offensive to a reasonable person. It also creates liability for constructive invasion, when a person attempts to capture such an image or recording, in a manner offensive to a reasonable person, through a device and without a physical trespass, if the image could not have been obtained without a trespass unless the device was used.

A violator is liable for up to three times general and special damages, may face punitive damages, must disgorge proceeds from a commercial purpose, and is subject to a civil fine of $5,000 to $50,000.

Frequently asked questions