4. Privacy in the United States

Updates and background for this project (Digest)

• Introduction
• Public disclosure of private facts
• Intrusion upon seclusion
• Appropriation of name or likeness
• False light
• Conclusion

4.1 This chapter examines the law in the United States, which has a long history of protecting privacy. At common law, that protection occurs principally in four tortious causes of action:

• Public disclosure of the private life of another;
• Intrusion upon the seclusion of another;
• Appropriation of the name or likeness of another; and
• Publicity that places another person in a false light before the public.

Background

4.2 The protection of privacy in the law of the United States has its modern origins in a famous article published in 1890 by Warren and Brandeis,¹ who canvassed particularly English cases that appeared to protect privacy and asserted that these cases were based on a broader principle. They coined the expression the “right to privacy” to describe the principle, and the expression has endured in the United States, sometimes with acknowledgement of its imprecision.² Warren and Brandeis argued that the law should provide a remedy for invasions of privacy beyond that provided through actions in contract and tort. They were concerned about new technologies that facilitate the surveillance of people’s private lives and argued that the growing intrusion by the media into private affairs made greater legal protection of privacy necessary to protect individuals against the unjustifiable infliction of mental distress. They wrote:

Instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house tops.” …

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.³

4.4 Three years later, a similar question arose in Pavesich v New England Life Insurance.⁶ The defendant, an insurance company, used the plaintiff’s name and photograph in an advertisement without his consent, including a false endorsement of the company. The plaintiff claimed damages alleging that the publication was a “trespass upon the plaintiff’s right of privacy, and was caused by breach of confidence and trust reposed”. In a unanimous decision, the Supreme Court of Georgia rejected the ruling in Roberson as representative of “the feeling of conservatism in a judge who faces a proposition which is novel”.⁷ It stated that the absence, for a long period of time, of a precedent for an asserted right is not conclusive evidence that the right did not exist. It observed that where the case is new in principle, the courts cannot give a remedy; but where the case is new only in instance, it is the duty of the courts to give relief by the application of recognised principles. It further observed that a “right of privacy” is derived from natural law, recognised by municipal law, and its existence can be inferred from expressions used by commentators and writers on the law as well as by judges in decided cases. The court declared that the “right” is embraced within the absolute rights of personal security and personal liberty. The court said:⁸

[A] violation of the right of privacy is a direct invasion of a legal right of the individual. It is a tort, and it is not necessary that special damages should have accrued from its violation in order to entitle the aggrieved party to recover.

The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by a common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff … “to be let alone”.¹¹

Widespread recognition

4.7 A majority of the States protect privacy in one form or another at common law.¹⁴ Courts generally conform to the Restatement’s classification of four distinct privacy torts to protect different privacy interests. There is, however, no uniformity across all jurisdictions on the elements of the torts. For example, while most courts identify offensiveness as an element in three of the four torts, some courts require the higher test of outrageous conduct. Further, while the public interest principle (which relates to the publication of matters that are of legitimate concern to the public) is a defence to liability in some jurisdictions, it is an element of the relevant torts in other jurisdictions. The general principles laid out in this Chapter may, therefore, vary across the different jurisdictions.

4.8 Some States have statutory causes of action that recognise or modify one¹⁵ or more¹⁶ of the common law torts. The New York statute creating a right of action for the unauthorised use of a person’s name or picture for advertising or other trade purposes is one of the most litigated.¹⁷ It was adopted when the courts in that State rejected the “right to privacy” based on the appropriation of name or likeness.¹⁸

A personal action

4.9 The “right to privacy” in American law generates an action only at the instance of the person whose privacy has been invaded, or, as it is sometimes put, it generates only a “personal right”. Three consequences in particular flow from this.

4.10 First, the action lapses with the death of the person who enjoyed it.¹⁹

4.11 Secondly, a plaintiff must show an invasion of his or her own privacy before recovery can be had. There is no “relational right of privacy”, that is, a plaintiff cannot bring an action for invasion of privacy by alleging that he or she suffers “injury” from publicity given to another person simply by reason of a relationship to that person.²⁰ For example, a husband has no claim to invasion of his privacy against a newspaper for the unhappiness that he suffers as a result of the newspaper publishing a picture of his deceased wife in connection with a story of the wife committing suicide.²¹ While the Restatement states that this rule does not apply in relation to the appropriation of a person’s name or likeness,²² courts have, in a number of cases, dismissed cases brought by relatives or representatives of a dead person to recover damages for the invasion of privacy resulting from posthumous publicity involving the deceased’s name or likeness.²³

4.12 Thirdly, a corporation²⁴ or partnership²⁵ has no cause of action for any of the four forms of invasion of privacy because it has no personal right to privacy. One case allowed an unincorporated association to bring a privacy tort action on behalf of its members.²⁶

Relationship to breach of confidence

4.13 The close connection between privacy and confidentiality in other common law systems has already been noted.²⁷ United States case law recognises that “[t]heir common denominator is that both assert a right to control information”.²⁸ However, the case law also acknowledges that confidential information is not always private (for example, commercial or governmental secrets); and that only a person who holds confidential information can breach confidentiality, whereas (theoretically) anyone can tortiously invade another’s privacy.²⁹ Thus, in Humphers v First Interstate Bank of Oregon,³⁰ the defendant doctor wrote a letter containing false information to a hospital to enable an adopted person, whom he had delivered at birth, to find out the identity of her birth mother, the plaintiff. The hospital held sealed medical records, not open to the public, concerning the adopted person’s birth, and these were released to the adopted person on production of the defendant’s letter. The records enabled the adopted person to trace the plaintiff, who was distressed when located. The plaintiff sued the doctor for invasion of privacy and breach of confidence. The plaintiff succeeded in breach of confidence but not in the tort of intrusion upon the plaintiff’s seclusion (the plaintiff alleging that the defendant had offensively pried into personal matters that she had reasonably sought to keep private). While the plaintiff’s action had assisted the adopted person in the quest for her birth mother, that quest in itself did not invade the plaintiff’s privacy. Nor had the plaintiff pried into a confidence: he had simply failed to keep one. And for this he was liable.

4.14 The existence of a contractual or professional relationship between the parties will mean that the disclosure of information connected with the relationship will often result in a preference for the action for breach of confidence over an action based on one of the privacy torts. However, there are cases, particularly relating to the disclosure by hospitals or medical professionals of the plaintiff’s HIV status, where United States courts have invoked either breach of confidence or one of the privacy torts as the basis of liability.³¹

Constitutional protection of privacy

4.15 The privacy torts identified by Prosser were not anchored in any constitutional guarantees. However, in 1965 the US Supreme Court held, in Griswold v Connecticut, that, although the US Constitution does not contain an express right of privacy, several fundamental constitutional guarantees create zones of privacy that, in appropriate cases, were entitled to protection.³² In Griswold itself, a State law criminalising the use of contraception was held unconstitutional since it violated marital privacy. The constitutional protection of privacy has since extended to a vast range of activities involving the most intimate and personal choices a person can make in his or her lifetime: it gives “constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.”³³

4.16 The constitutional protection of privacy is directed against unlawful governmental invasion. If a court finds that a constitutional right is breached, the general result is a court declaration that the action by the State is invalid.³⁴ Hence, to obtain damages for invasion of privacy by a public official, the victim will generally have to use the general law (such as a privacy tort) and his or her action will only be entertained by a court if the defendant public official does not have immunity from suit.³⁵

PUBLIC DISCLOSURE OF PRIVATE FACTS

4.17 This tort has are three basic elements:

• there must be a public disclosure (“publicity”);
• the facts disclosed must be private rather than public ones; and
• the matter made public must be one the publication of which would be offensive and objectionable to a reasonable person of ordinary sensibilities.

Public disclosure

4.19 As a general rule, the requirement of public disclosure, or “publicity,” connotes publicity in the sense of communication to the public or to a large number of persons, as distinguished from one individual or a few. The simple disclosure of private information to one other person or a small group is not sufficient to support a claim for the public disclosure of private facts.³⁸

4.20 However, although the disclosure necessary to support a claim for invasion of privacy in the nature of unreasonable publicity given to one’s private life must be made to the general public or to a large number of persons, there is no threshold number that constitutes a large number of persons. The size of the audience that receives the communication, though an important consideration, is not dispositive of the issue as to whether a public disclosure of a private fact has been made. Rather, whether such a disclosure satisfies the publicity element depends upon the particular facts of the case and the nature of plaintiff’s relationship to the audience who received the information.³⁹

4.21 If a plaintiff has a special relationship with the individuals to whom the matter was disclosed, the publicity requirement may be satisfied by disclosure to a small number of people. The rationale behind this rule is that the disclosure may be just as devastating to the person even though the disclosure was made to a limited number of people.⁴⁰

Private facts

4.22 In an action for invasion of privacy based on public disclosure of private facts regarding the plaintiff, the information disclosed must actually be of a private nature.⁴¹ For example, the fact that the plaintiff had Acquired Immune Deficiency Syndrome (AIDS) was held to be private.⁴²

4.23 The Restatement gives the following illustrations of private facts:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget.⁴³

4.25 Hence, the publication of a newspaper article containing excerpts from a complaint in an estate dispute, which portrayed the plaintiffs as having taken advantage of the deceased before her death, was held not to be an invasion of plaintiffs’ privacy since one’s private affairs may become public when litigation ensues.⁴⁵

4.26 In another case, a letter from an employer reprimanding an employee was held to be in the public domain prior to its appearance in a news publication because, by the time of the letter’s publication, it had already been circulating both within a government agency and among industry sources.⁴⁶

Offensiveness

4.27 A key element of the tort of public disclosure of private facts is that the matter made public must be one that would be offensive or objectionable to a reasonable person of ordinary sensibilities.⁴⁷

4.28 The Restatement summarises this element as follows:

The protection afforded to the plaintiff’s interest in his or her privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens. Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part. Thus, he must expect the more or less casual observation of his neighbors as to what he does, and that his comings and goings and his ordinary daily activities, will be described in the press as a matter of casual interest to others. The ordinary reasonable person does not take offence at a report in a newspaper that he has returned from a visit, gone camping in the woods or given a party at his house for friends. Even minor and moderate annoyance, as for example through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken an ankle, is not sufficient to give him a cause of action. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of action arises.⁴⁸

• The facts relating to the sexual abuse of a minor allegedly perpetrated by her father;⁴⁹
• Details of the sexual relations of the two plaintiffs;⁵⁰
• A person’s transexuality where she made efforts to conceal this fact.⁵¹

• An article in a sports magazine regarding body surfing that focused on the plaintiff and his particular style of body surfing. It included such facts as the plaintiff’s penchant for putting out cigarettes in his mouth, diving off stairs to impress women, hurting himself in order to collect unemployment benefits so as to have time for body surfing during summer, participating in gang fights as a youngster, and eating insects. The court held that although the facts published about the plaintiff were generally unflattering and perhaps embarrassing, they were simply not offensive. In fact, they connoted nearly as strong a positive image as a negative one, since the plaintiff could be seen as “an aggressive maverick, an archetypal character occupying a respected place in the American consciousness”.⁵²
• Newspaper articles which disclosed the plaintiff’s resignation for personal reasons as secretary and bookkeeper of a town, and which mentioned the $10,000 settlement reached between her and the town, and the fact that the town’s books were in disarray. The court held that the publications were not of a kind that would be offensive to a reasonable person.⁵³
• The disclosure of the scores of a teacher, who had done well on a teacher certification test, which were erroneously mailed to another teacher, by the computer company that had been hired to report the scores. The court held that there was no “publicity” because the disclosure was made only to a one person. Further, the disclosure was not of a highly objectionable kind since only one other person found out that the plaintiff had done well on the test.⁵⁴

4.31 The tort of public disclosure of private facts is subject to the First Amendment of the US Constitution, which provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

4.33 In Cox Broadcasting Corp v Cohn, a reporter for a television station broadcast the name of a deceased rape victim. The reporter obtained the name from court records. The victim’s father brought a damages action against the corporation that owned the television station based on a Georgia statute making it an offence to broadcast a rape victim’s name. The plaintiff claimed that his right to privacy had been invaded by the broadcast of his daughter’s name. The trial court found for the plaintiff and rejected the defendant’s argument that the broadcast was privileged under the First Amendment.

4.34 On appeal, the Georgia Supreme Court held that the trial court had erred in construing the statute as granting a civil cause of action for invasion of privacy. However, it found that the plaintiff had a cause of action under the common law tort of disclosure of private information. It agreed with the trial court’s ruling that the First Amendment did not require judgment for the defendant.

4.35 The United States Supreme Court overturned the judgment of the Georgia Supreme Court. It held that a State may not, consistently with the First Amendment, impose sanctions on the accurate publication of a rape victim’s name obtained from public records. The Court held that the commission of a crime, and proceedings arising from prosecutions, are events of legitimate concern to the public and fall within the responsibility of the press to report the operations of government. It declared that “the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record.”⁵⁷

4.36 In Florida Star v BJF, a reporter lawfully obtained the name of a rape victim from an erroneously released police report. The name was subsequently included in a newspaper article. A significant difference from Cox Broadcasting Corp is the fact that the reporter in Florida Star did not obtain the name of the rape victim from a public record. No court proceedings in relation to the alleged rape had commenced.

4.37 The victim argued that the newspaper had violated a Florida statute that made it unlawful to publish in any instrument of mass communication the name of the victim of a sexual offence. She argued that a rule punishing publication furthers three closely related interests, namely, the privacy interest of victims of sexual offences; the physical safety of such victims, who may be targeted for retaliation if their names become known to their assailants; and the goal of encouraging victims to report these offences without fear of exposure.

4.38 The United States Supreme Court reversed the State court’s judgment in favour of the plaintiff. It held that the award of damages against the defendant newspaper, pursuant to the Florida statute, violated the First Amendment. The court said:

We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offence. We hold only that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order ... ⁵⁸

By holding that only ‘a state interest of the highest order’ permits the State to penalize the publication of truthful information, and by holding that protecting a rape victim’s right to privacy is not among those state interests of the highest order, the Court accepts appellant’s invitation … to obliterate one of the most noteworthy legal inventions of the 20th century: the tort of the publication of private facts.⁵⁹

4.41 People v Bryant was not an action for invasion of privacy. However, the decision forms part of the debate relating to the balancing of competing rights to privacy and freedom of speech. The case, widely covered by the media, involved the criminal prosecution for sexual assault of a famous professional basketball player. Pursuant to the State’s “rape shield” law, the alleged victim testified in camera. A court reporter mistakenly transmitted the transcripts of the in camera hearings, including private and sensitive testimony, to members of the media. The trial court made an order preventing further release of the contents of the in camera transcripts. Members of the media filed a petition before the Supreme Court of Colorado to invalidate the trial court’s order on the ground that it violated the First Amendment.

4.42 The Supreme Court upheld the trial court’s order. After discussing the cases of Florida Star, Cox Broadcasting Corp and other relevant cases, the Supreme Court held that the State had interests of the highest order in a rape victim’s privacy interest, as well as in the reporting and prosecution of this and other sexual assault cases.

INTRUSION UPON SECLUSION

4.43 The Restatement provides that a person “who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or [their] private affairs or concerns, is subject to liability to the other for invasion of [their] privacy, if the intrusion would be highly offensive to a reasonable person”.⁶¹

4.44 The thrust of this tort is that a person’s private, personal affairs should not be pried into. The converse of this principle is, of course, that there is no wrong where the defendant did not actually delve into the plaintiff’s concerns, or where the plaintiff’s activities were already public or known.⁶²

4.45 The tort contains three elements:

• an intentional intrusion by the defendant;
• into a matter which the plaintiff has a right to keep private; and
• by the use of a method which is highly objectionable to the reasonable person.⁶³

4.46 The intrusion, which must be intentional, may consist of any or a combination of the following methods:

• Physical intrusion. The uninvited and unauthorised entry into the plaintiff’s home, room or living quarters may constitute an invasion of privacy. Illustrative examples include the unauthorised entry into these places by a stranger,⁶⁴ landlord,⁶⁵ employer⁶⁶ or creditor.⁶⁷
• Use of senses. Intrusion may consist of the use of the defendant’s senses to observe or overhear the plaintiff’s private affairs.⁶⁸
• Use of surveillance devices. Intrusion extends to eavesdropping upon private conversations by means of surveillance devices, such as wiretaps, microphones⁶⁹ and tracking devices.
• Others. The intrusion may also consist of other forms of investigations into the plaintiff’s private affairs, such as the opening, reading, copying of sealed mail⁷⁰ or private documents, such as a political association’s membership lists.⁷¹ It may also consist of the unauthorised prying into a private bank account,⁷² or repeated telephone calls at unreasonable hours.⁷³

Private matter

4.48 There must be an intrusion into a private place, conversation or matter. Hence, a magazine was held liable for invasion of privacy when its reporter photographed the plaintiff in his home.⁷⁵ In contrast, persons have no right to be let alone on the public street or other public place and it is not an invasion of their privacy to do no more than follow them about and watch them there.⁷⁶ Neither is it an invasion of privacy to take a person’s photograph in a public place.⁷⁷ However, even in a public place, there can be some happenings that are still private, so that a woman who was photographed with her dress unexpectedly blown up in a “fun house” in a country fair was found to have suffered an invasion of her privacy.⁷⁸

4.49 The essence of this element of the tort of unreasonable intrusion is an objectively reasonable expectation of privacy. In Shulman v Group W Productions Inc,⁷⁹ television producers equipped a helicopter rescue team nurse with a microphone and filmed the rescue of plaintiff. When the rescue team and camera crew arrived on the scene, the plaintiff was being extricated from an overturned car and had very serious injuries. The court said:

The courts ask first whether defendants intentionally intruded, physically or otherwise, upon the solitude or seclusion of another, that is, into a place or conversation private to a plaintiff. There is no liability for the examination of a public record concerning the plaintiff, or for observing him or even taking his photograph while he is walking on the public highway. To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.⁸⁰

Offensiveness

4.51 There is no liability for intrusion unless the interference with the plaintiff’s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable person. The question of what kinds of conduct would be regarded as highly offensive intrusions is largely a matter of social convention and expectation.⁸² A court determining the existence of offensiveness would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he or she intrudes, and the expectations of those whose privacy is invaded.⁸³

4.52 Thus there is no liability for knocking at the plaintiff’s door, or for calling him or her on the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff that becomes a substantial burden to his existence, that his or her privacy is invaded.⁸⁴

4.53 In a case involving debt collection, the court said that a reasonable person should expect that a company charged with collecting a delinquent account would display a certain degree of persistence when the person on the other end of the telephone denies responsibility for a debt. However, where, as in that case, the plaintiffs advised the company that they did not owe any money and the defendant subsequently received reliable confirmation of the inaccuracy of its records, the court held that a reasonable person could regard the defendant’s continued persistence, culminating in a repossession attempt at the plaintiffs’ home, as highly offensive conduct.⁸⁵

Newsgathering

4.54 Some of the cases on intrusion upon seclusion involve newsgathering activities. Since newsgathering is within the protective ambit of the First Amendment of the Constitution,⁸⁶ an important question in those cases is whether the First Amendment provides “a wall of immunity protecting newsmen from any liability for their conduct while gathering news.”⁸⁷ The weight of authority holds that the interest in a free media is not absolute and may sometimes yield to other interests, such as privacy.⁸⁸

4.55 In Miller v National Broadcasting Co,⁸⁹ the court held that the First Amendment has never been construed to grant newsgatherers immunity from torts or crimes committed during the course of newsgathering. It held that a television network’s constitutional right to gather news did not preclude a widow’s cause of action against the network for invasion of privacy resulting from a camera crew’s accompanying paramedics into the widow’s apartment and filming the paramedics’ unsuccessful efforts to revive the widow’s spouse who had suffered a heart attack. On the assumption that public education about paramedics, as well as about the use of cardiopulmonary resuscitation (CPR), qualified as “news”, the court stressed that the constitutional protection for newsgathering was limited, rather than absolute. The court concluded that the obligation not to make unauthorized entry into the private premises of individuals did not place an impermissible burden on newsgatherers, nor was it likely to have a chilling effect on the exercise of First Amendment rights. It said that others besides the media have rights, and those rights prevailed when considered in the context of the events surrounding that particular case.⁹⁰

APPROPRIATION OF NAME OR LIKENESS

4.56 The Restatement provides that a person “who appropriates for his [or her] own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy”.⁹¹

4.57 The elements of the tort are:

• the defendant used the plaintiff’s name or likeness;
• the use of the plaintiff’s name or likeness was for the defendant’s own purposes or benefit, commercially or otherwise;
• the plaintiff suffered damages; and
• the defendant caused the damages incurred.⁹²

4.58 While the use of the plaintiff’s “name or likeness” from unwarranted intrusion or exploitation is generally stated as the principal ingredient of the tort,⁹³ it is clear that the interest protected in the tort is capable of more general statement as the plaintiff’s identity.⁹⁴ Provided that what has been published clearly refers to the plaintiff,⁹⁵ the tort occurs when defendants use the plaintiff’s name or likeness for their purposes by intrusion on or exploitation of the plaintiff’s character, reputation or standing. “Likeness” includes such things as pictures and the use of a singer’s distinctive voice.⁹⁶ But the mere use of the same name as the plaintiff does not give rise to liability in tort without some appropriation of that name (as, for example, where defendants pass themselves off as the plaintiff).⁹⁷

Advertising, commercial or other purpose

4.59 The typical appropriation tort occurs where defendants use the plaintiff’s name or likeness for the purpose of advertising their products or services. Indeed, statutes in some State limit liability for appropriation of name or likeness to advertising or other commercial purposes.⁹⁸ At common law, the tort is not in principle so limited. It applies whenever defendants makes use of the plaintiff’s name or likeness for their purposes and benefit, whether that use is commercial or not.⁹⁹

Incidental use of the plaintiff’s name or likeness

4.60 To constitute an invasion of privacy, the use of a name or likeness must amount to a “meaningful or purposeful use” of the name of a person, not a merely incidental use.¹⁰⁰ This means that the use must be “for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy invaded”.¹⁰¹ For example, a court held that the use of a medical resident’s photograph in a hospital’s recruiting brochure was incidental to the main purpose of the document, which was to provide information about the hospital’s programs to prospective interns and residents.¹⁰²

Privacy or property interest?

4.61 A controversial issue is whether the appropriation tort vindicates the privacy of a person or protects a separate property right, and is therefore a form of intellectual property.¹⁰³ If the latter, it is, in principle, alienable and survives death. The courts are divided on this issue.¹⁰⁴

4.62 Originally, the tort was aimed at protecting the personal feelings of individuals against mental distress,¹⁰⁵ but when it came to be applied to public figures or celebrities who use their identities as commodities, it was sometimes regarded as a proprietary right, a view adopted in the Restatement.¹⁰⁶ This has led some jurisdictions in the United States to develop a “right of publicity” that is either distinct from the appropriation tort or replaces it.¹⁰⁷ The “right of publicity” refers to a celebrity’s right to the exclusive use of his or her name and likeness. Unlike the appropriation tort, the “right to publicity” survives the death of its owner (even if the owner had not commercially exploited the “right” before death),¹⁰⁸ and is based squarely on damage to the plaintiff’s economic interests.¹⁰⁹ However, some courts do not distinguish between the appropriation tort and the “right to publicity”, but use the two concepts interchangeably.¹¹⁰

Public interest considerations

4.63 The tort will not be maintainable where the plaintiff’s name or likeness is appropriated through the publication of material that is newsworthy or of public concern. A newspaper article discussing a public figure, or a biography of a public figure, is, therefore, able to use names or photographs relevant to the article or biography.¹¹¹

4.64 Commercial speech will, however, generally raise fewer free speech concerns than other speech. Thus a State law providing for a “right to publicity” will generally not offend the First Amendment since the law furthers an economic interest (rather than an interest in feelings or reputation) that the owner of the interest will seek to promote in order to obtain a commercial advantage, rather than to suppress.¹¹² The Supreme Court of the United States has upheld a State law allowing the plaintiff to claim damages in circumstances where the defendant had, without permission, broadcast a film of the whole of the plaintiff’s “human cannonball act”, an act that the plaintiff performed as a commercial entertainer. The question here is simply who should benefit from the publication, the plaintiff or the defendant. The Court held that relevant constitutional privileges (including the First Amendment) “do not immunize the media when they broadcast a performer’s entire act without his consent”.¹¹³

FALSE LIGHT

4.65 A person “who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of [his or her] privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicised matter and the false light in which the other would be placed”.¹¹⁴

4.66 The elements of the tort are:

• the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light;
• the false light in which the plaintiff was placed would be highly offensive to a reasonable person; and
• the defendant had knowledge of, or acted with reckless disregard as to, the falsity of the publicised matter and the false light in which the plaintiff would be placed.¹¹⁵

4.67 The false light tort requires a showing that the statement is understood to be “of and concerning” the plaintiff. If statements can reasonably be construed as referring to somebody other than the plaintiff, then they are not “of and concerning” the plaintiff, and cannot state a claim for the tort of false light invasion of privacy.¹¹⁶ For example, a court held that given the existence of over one million hunters in the State of Michigan, a television documentary, allegedly portraying hunters in general and Michigan hunters in particular as bloodthirsty killers, was not actionable by any individual Michigan hunter on a theory of false light invasion of privacy, where no such individual was specifically identified in the broadcast.¹¹⁷

Falsity

4.68 The matter to which publicity was given must in fact be false as to the plaintiff, or at least have the capacity to give rise to a false public impression as to the plaintiff.¹¹⁸

4.69 In Brown v Capricorn Records, the court held that the photograph on a record album cover of a rock and roll music group which showed the plaintiff, a blind street singer, on a public street in front of a liquor store, did not place the plaintiff in a false light in the public eye where he was in fact associated with the liquor store and with rock and roll music.¹¹⁹

4.70 Another example is Hart v City of Jersey City, where a police officer’s one-day suspension was published in the in-house police department bulletin. The court dismissed his claim for damages under the false light tort because he failed to prove the contested publicity was untrue. The court found that the notice in the bulletin regarding his suspension, which was limited to the bare fact of its occurrence and the date, was in fact true.¹²⁰

4.71 The focus of the tort of false light invasion of privacy is not on the truth or falsity of a particular statement, but instead is whether what has been said leads others to believe something about the plaintiff that is false.¹²¹

4.72 In Dean v Guard Publishing Co, the defendant newspaper ran a story about the opening of an alcohol rehabilitation centre and included a picture of the plaintiff at the centre’s alcohol aversion treatment facility. The plaintiff asserted that he was at the facility only to attend an open house, but the picture suggested that he was there for treatment. The paper argued that it could not be liable because, in fact, the plaintiff was an alcoholic. The court held that the point was not that the plaintiff was an alcoholic, but that the paper had published a picture that suggested falsely that he currently was undergoing alcohol aversion treatment.¹²²

4.73 Even a statement which is technically true in itself may lead to a false impression in the mind of a member of the public when it is published without explanatory facts and circumstances which, when added to the bald individual fact, would tend to create a less objectionable public impression about the plaintiff.¹²³

4.74 In Memphis Publishing Co v Nichols, a newspaper article stated that the plaintiff had been treated for a bullet wound in her arm after a shooting at her home; that the police were holding a 40-year-old woman in connection with the shooting; and that the suspect had also fired a shot at her own husband, after she had arrived at the plaintiff’s home and found her husband with the plaintiff. The court found that the article created a reasonable inference that the plaintiff had been caught in an “affair” with the suspect’s husband. However, the evidence showed that at the time of the shooting, the plaintiff and the suspect’s husband were with two other neighbours and were engaged in an innocent social gathering. The court held that notwithstanding the essential truth of the facts reported, the failure of the article to mention the full circumstances of the shooting was sufficient to sustain a jury finding of a false inference of misconduct on the plaintiff’s part.¹²⁴

4.75 There are, however, cases that have decided that recovery for a false light tort cannot be had against a media defendant on the basis that it failed to include additional facts which might have cast the plaintiff in a more favorable or balanced light. To permit recovery in such circumstances, according to these cases, would violate the First Amendment of the Constitution on freedom of speech and of the press, since choice of material and decisions made as to size limitations of the publication constitute the exercise of editorial control for which no court may substitute its own judgment.¹²⁵

Offensiveness

4.76 In a false light tort, the matter communicated to the public must be one that would be highly offensive to a reasonable person. This element is met when a defendant knows that a plaintiff, as a reasonable person, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity.¹²⁶ Minor mistakes in reporting, even if made deliberately, or false facts that offend a hypersensitive individual will not be sufficient to constitute false light invasion of privacy.¹²⁷

Actual malice

4.77 In false light torts, it is generally said that there can be no recovery without showing by clear and convincing evidence that the defendant has publicised the private information about the plaintiff with actual malice, that is, with actual, subjective knowledge that the material in question is false as to the plaintiff, or with a reckless disregard of whether or not it is false. This was established by the United States Supreme Court in Time, Inc v Hill¹²⁸ reversing a decision of the New York Court of Appeals holding Time magazine liable under a New York statute. Time had published an account of a play relating to an incident where the plaintiff and his family had been held hostage by escaped convicts. The magazine portrayed the play as a re-enactment. The plaintiff, asserting a false light privacy tort, alleged that the article gave a false impression that the play depicted the incident. The Supreme Court held that liability under this tort could be consistent with the First Amendment only if the inaccurate portrayal were recklessly or knowingly false.

4.78 It follows from Time, Inc v Hill that negligence does not support a false light tort. In Zeran v Diamond Broadcasting Inc,¹²⁹ the plaintiff was a victim of an internet hoax when his business phone number was placed on internet electronic bulletin boards, which advertised items with slogans glorifying the bombing of the Okalahoma City federal building. A radio talk show host read the plaintiff’s phone number over air and encouraged listeners to call, and as a result, the plaintiff received numerous abusive, unpleasant and threatening calls. The court dismissed the plaintiff’s action for invasion of privacy against the radio station because he failed to prove that the radio station’s employees either knew that the internet postings of his phone number were false, or acted recklessly, which, according to the court, requires poof of “actual knowledge of probable falsity”. The court held that the negligence of the station’s employees in failing to verify the authenticity of the internet postings of plaintiff’s phone number was insufficient basis for an invasion of privacy claim.

4.79 It is important to note, however, that the actual malice standard applied in these cases reflects the rule, derived from the Supreme Court’s decision in New York Times v Sullivan,¹³⁰ that a plaintiff who is a public figure or public official can, consistently with the First Amendment, only succeed in defamation if he or she can prove that the defendant published the defamatory matter in issue knowing that it was false or with reckless indifference to its truth. Subsequently, the Supreme Court held, in Gertz v Welch,¹³¹ that a private figure in a defamation claim need only prove “some fault” (such as negligence). The decision in Time, Inc v Hill predates Gertz v Welch. Because of the close connection between the false light tort and defamation,¹³² it is now arguable that the actual malice standard employed in Time, Inc v Hill requires modification, consistently with Gertz v Welch, where the plaintiff is a private figure.¹³³

Distinguished from defamation

4.80 In the United States, the false light tort is closely allied with defamation since similar considerations apply to each.¹³⁴ For both actions, the matter publicised must be false; it must be “published” or communicated to third parties; and the publication must be made with some degree of fault on the part of the defendant.

4.81 They differ, however, in three ways. First, the false light tort is not limited to matters actually defamatory, either on their face or in context, but may be brought for any highly offensive false portrayal before the public, based on the sensitivities of a reasonable person.

4.82 Secondly, any publication of the subject matter to one person suffices to give rise to a defamation action, while the subject matter of a false light tort is usually required to come to the notice of a substantial portion of the general public, or at least to be of such character and subject to such dissemination as to be reasonably certain of such exposure.

4.83 Finally, while the essence of a defamation action is injury to reputation, the gist of a false light tort is the subjective suffering, embarrassment, and outrage of the subject of the depiction, and the interest to be protected is the plaintiff’s own peace of mind.¹³⁵ Hence, a false statement about, or depiction of, an individual might, if highly offensive to a reasonable person, be actionable as a false light tort, even if it could not be found to be defamatory.¹³⁶

4.84 There are commentators who are of the view that the overlap between defamation and the false light tort is so substantial as to call into question the need for the false light tort. They argue that that many of the issues characterised as questions of false light may be resolved by the law of defamation.¹³⁷

CONCLUSION

4.85 While the protection afforded privacy in the United States may seem extensive, freedom of expression trumps privacy claims to such an extent that the so-called “right to privacy” can be seen as “a somewhat hollow one”.¹³⁸ A comparatively small volume of litigation suggests that the causes of action associated with privacy lack vitality.¹³⁹

4.86 Nevertheless, the protection afforded privacy in the United States has proved influential in other common law jurisdictions. New Zealand embraces a tort of wrongful publication of private information modelled on the US tort of public disclosure of private facts,¹⁴⁰ and one first instance decision in Australia supports the existence of a similar “wrong”.¹⁴¹ Another first instance decision in Australia supports a tort patterned after the US tort of intrusion upon the seclusion of an individual.¹⁴² The Hong Law Reform Commission supported the adoption in Hong Kong of both of these torts (unwarranted publicity given to an individual’s private life and intrusion upon the solitude or seclusion of another).¹⁴³

4.87 Other common law jurisdictions have created more general statutory torts of invasion of privacy.¹⁴⁴ The influence of American law is evident in these jurisdictions. The relevant statutes enumerate classes of behaviour as examples of privacy invasions that reflect the various torts in the United States. They include:

• subjecting an individual to surveillance or harassment, or listening to or recording of private conversations,¹⁴⁵ which would come under the American tort of intrusion upon seclusion;
• disclosure of private information, including letters, diaries, medical records or other concerning an individual;¹⁴⁶ and
• use of name or likeness or an individual.¹⁴⁷

1. Samuel Warren and Louis Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193.

2. For example, Cordell v Detective Publications 419 F 2d 989, 990 (1958) (US Court of Appeals, Sixth Circuit). See also Restatement (Second) Torts §652A contrasting “interests” in (1) with the “right” in (2).

3. Samuel Warren and Louis Brandeis, “The Right to Privacy” (1890) 4 Harvard Law Review 193, 195-196. Warren, who had a law firm and was married to the daughter of a prominent politician, lived in an exclusive section of Boston. He and his family were well-known in social circles and frequently organised elaborate parties. A local paper reported their activities in lurid details. This annoyed Warren who took the matter up with Brandeis. The result was their was influential article: see Edward J Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 New York University Law Review 962, 966, citing a biography of Brandeis.

4. 64 NE 442 (Court of Appeals of New York, 1902).

5. Roberson v Rochester Folding Box Co 64 NE 442, 447 (1902).

6. 50 SE 68 (Supreme Court of Georgia, 1905).

7. Pavesich v New England Life Ins Co 50 SE 68, 78 (1905).

8. Pavesich v New England Life Ins Co 50 SE 68, 73 (1905)

9. See D Dobbs, R Keeton and D Owen, Prosser and Keeton on Torts (5th ed, West Publishing, 1984), 851.

10. William Prosser, “Privacy” (1960) 48 California Law Review 383, 389.

11. Prosser , 389.

12. Prosser, 383.

13. See Restatement (Second) of Torts §652A. The Restatements of the Law, published by the American Law Institute, are comprehensive expositions of the law on specific subjects, such as contracts or torts. A Restatement is based on court decisions but is formulated like a statute. It is essentially a synthesis of court decisions into clear, consistent and concise language.

14. Currently, only five states refuse to recognise a common law right to privacy, namely, Virginia, Minnesota, Rhode Island and Wisconsin, while Nebraska does not recognise a cause of action for the tort of appropriation: see Am Jur 2d, Privacy, § 4.

15. See Code of Virginia §§ 8-650, c 671 (unauthorised use of name or picture of any person); 765 Illinois Consolidated Statutes 1075/10 9 (right of publicity).

16. See Neb Rev Stat §§ 20-204 and 20-205; Wis Stat § 995.50.

17. New York State Consolidated Laws, Civil Rights, § 50. It superseded NY Sessions Laws (1903) ch 132 § 1-2.

18. See Roberson v Rochester Folding Box Co 64 NE 442 (Court of Appeals New York, 1902). See para 4.3.

19. Maritote v Desilu Productions Inc, 345 F 2d 418, 420 (United States Court of Appeals, 7th Circuit, 1965); Young v That Was The Week That Was, 423 F 2d 265 (United States Court of Appeals, 6th Circuit, 1970). For qualification in respect of the appropriation tort, see para 4.61-4.62.

20. Jack Metter v Los Angeles Examiner, 95 P 2d 491 (District Court of Appeal of California, 1939); Moore v Charles B Pierce Film Enterprises Inc, 589 SW 2d 489 (Court of Civil Appeals of Texas, 1979).

21. Jack Metter v Los Angeles Examiner, 95 P 2d 491 (Court of Appeal of California, 1939).

22. Restatement (Second) of Torts § 652I.

23. For example, the Seventh Circuit Court of Appeals affirmed the dismissal of an action brought by the widow, son and administratrix of Al Capone against the producers of the television drama series “The Untouchables”, which were televised more than twelve years after the death of Al Capone. The court held that the plaintiffs could not recover damages for the alleged appropriation of the name and likeness of Al Capone where they were not named or referred to in any of the television broadcasts at issue: Maritote v Desilu Productions Inc, 345 F 2d 418 (United States Court of Appeals, 7th Circuit, 1965). Again, the widow and son of the movie actor Bela Lugosi, who played the title role in the 1930 film “Dracula”, were not entitled to recover for an alleged invasion of privacy by the defendant movie company’s licensing of the use of the Count Dracula character (as portrayed by Bela Lugosi’s and therefore including his face and likeness) to commercial films, since the right to exploit ones’ name and likeness is personal to the artist and must be exercised, if at all, by the artist during his or her lifetime: Lugosi v Universal Pictures, 10 ALR 4th 1150 (Supreme Court of California, 1979).

24. Warner-Lambert Co v Execuquest Corp, 691 NE 2d 545 (Supreme Judicial Court of Massachusetts, 1998); Austin Eberhardt & Donaldson Corp v Morgan Stanley Dean Witter Trust, US Dist LEXIS 1090 (United States District Court for the Northern District of Illinois, 2001).

25. Rosenwasser v Ogoglia, 158 NYS 56 (Supreme Court of New York, 1916).

26. Socialist Workers Party v Attorney General of the United States, 444 US 903 (United States Supreme Court, 1978).

27. See para 2.22 (Australia), 3.33.29 (England), 3.30-3.41 (New Zealand).

28. Humphers v First Interstate Bank of Oregon 696 P 2d 527, 529 (Supreme Court of Oregon, 1985). This reflects the views of A F Westin, Privacy and Freedom (Atheneum, 1967).

29. Humphers v First Interstate Bank of Oregon 696 P 2d 527, 529 (Supreme Court of Oregon, 1985).

30. 696 P 2d 527.

31. See V E Schwartz, K Kelly and D F Partlett, Prosser, Wade and Schwartz’s Torts (10th ed, Foundation Press, 2000), 954-955.

32. 381 US 479 (United States Supreme Court, 1965). Justice Douglas, writing for the court, explained the basis of the constitutional right to privacy: “[T]he Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one …. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’”: Griswold v Connecticut 381 US 479, 484 (United States Supreme Court, 1965).

33. Lawrence v Texas, 539 US 558, 573-574 (United States Supreme Court, 2003) citing Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 851 (United States Supreme Court, 1992). See also Roe v Wade, 410 US 113 (United States Supreme Court, 1973) (procreation); Eisenstadt v Baird, 405 US 438 (United States Supreme Court, 1972) (contraception). For the view that the Supreme Court may depart from the established constitutional approach to the protection of privacy, see Cass R Sunstein, Radicals in Robes (Basic Books, 2005) ch 3.

34. See, however, Bivens v Six Unknown Federal Narcotics Agents (United States Supreme Court, 1971) where the plaintiff was awarded damages for an unreasonable search of his home and his person that had been carried out by federal narcotics agents in violation of the US Bill of Rights. The Constitution was the basis of the cause of action in damages. In Australia, the High Court has refused to recognise a cause of action for breach of the Constitution: Kruger v Commonwealth (1997) 190 CLR 1. See also British American Tobacco Australia Ltd v The State of Western Australia (2003) 217, 30, 53 (McHugh, Gummow and Hayne JJ); Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 245 (Gummow and Hayne JJ).

35. See 42 USC § 1983 (authorising civil damage actions against those who under colour of State law deprive others of constitutional rights).

36. Restatement (Second) of Torts § 652D.

37. See, for example, The Star-Telegram Inc v Doe, 915 SW 2d 471 (Supreme Court of Texas, 1995).

38. In these cases, the publicity was held insufficient because it was made to one person or a small group of people: Olson v Red Cedar Clinic, 273 Wis 2d 728 (Court of Appeals of Wisconsin, 2004) (a clinic’s disclosure to a school psychologist of information concerning a mother contained in her child’s counselling records); Porten v The University of San Francisco, 64 Cal App 3d 825 (Court of Appeals California, 2004) (disclosure by a university of a student’s marks to the State Scholarship and Loan Commission); Seinton Creek Nursery v Edisto Farm Credit, 334 SC 469 (Supreme Court of South Carolina, 1999) (a lender’s disclosure of a borrower’s financial information to a third party who sought a loan from the lender in order to purchase the borrower’s business).

39. Ozer v Borquez, 940 P 2d 371, 378 (Supreme Court of Colorado, 1997). Karch v Baybank FSB, 794 A 2d 763, 774 (Supreme Court of New Hampshire, 2002).

40. Chisholm v Foothill Capital Corp, 3 F Supp 2d 925, 940 (United States District Court for the Northern District of Illinois, 1998). For illustrations on the application of the rule, see Pachowitz v LeDoux, 666 NW 2d 88 (Court of Appeals of Wisconsin, 2003); Kinsey v Macur, 107 Cal App 3d 265 (Court of Appeal of California, 1980); Karch v Baybank FSB, 147 NH 525 (Supreme Court of New Hampshire, 1999).

41. Howard v Des Moines Register And Tribune Company, 283 NW 2d 289 (Supreme Court of Iowa, 1979) (Under Iowa Freedom of Information Act, documents reviewing plaintiff’s sterilization were public and information which they contained was in the public domain, so that disclosure of plaintiff’s sterilization was not actionable.)

42. Multimedia WMAZ Inc v Kubach, 212 Ga App 707 (Court of Appeals of Georgia, 1994).

43. Restatement (Second) of Torts § 652D comment b.

44. Restatement (Second) of Torts § 652D comment b.

45. Hurley v Northwest Publications Inc, 273 F Supp 967 (United States District Court for the District of Minnesota, 1967).

46. Reuber v Food Chemical News Inc, 925 F2d 703 (United States Court of Appeals, 4th Circuit, 1990).

47. Loe v Town of Thomaston, 600 A 2d 1090 (Supreme Judicial Court of Maine, 1991).

48. Restatement (Second) of Torts § 652D comment c.

49. Morgan v Celender, 780 F Supp 307 (United States District Court for the Western District of Pennsylvania, 1992) (While the facts of the crime were considered offensive, it was held that the news media had a right to publish those items that constituted elements of the offence despite plaintiff’s claim of invasion of privacy.)

50. Garner v Triangle Publications, 97 F Supp 546 (United States District Court for Southern District of New York, 1951).

51. Diaz v Oakland Tribune, 139 Cal App 3d 118 (Court of Appeal of California, 1983).

52. Vrigil v Sports Illustrated, 424 F Supp 1286, (United States District Court for Southern District of California, 1967).

53. Loe v Town of Thomaston, 600 A 2d 1090 (Supreme Judicial Court of Maine, 1991).

54. Wood v National Computer Systems Inc, 814 F 2d 544 (United States Court of Appeals, 8th Circuit, 1987).

55. 420 US 469 (United States Supreme Court, 1975).

56. 491 US 524 (United States Supreme Court, 1989).

57. Cox Broadcasting Corp v Cohn, 420 US 469, 494 (United States Supreme Court, 1975).

58. Florida Star v BJF, 491 US 524, 541 (United States Supreme Court, 1989).

59. Florida Star v BJF, 491 US 524, 550 (United States Supreme Court, 1989).

60. 94 P 3d 624 (Supreme Court of Colorado, 2004).

61. Restatement (Second) of Torts § 652B.

62. Bisbee v John C Conover Agency Inc, 452 A 2d 689, 691 (Superior Court of New Jersey, 1982).

63. Lewis v Dayton Hudson Corp, 339 NW 2d 857 (Court of Appeals of Michigan, 1983).

64. Byfield v Candler, 125 SE 905 (Court of Appeals of Georgia, 1924) (A male passenger entered a female passenger’s stateroom in a steamboat at night and attempted to have sex with her.)

65. Welsh v Roehm, 241 P 2d 816 (Supreme Court of Montana, 1952) (A landlord, after serving an invalid notice to terminate even though rent had been paid, moved into the leased home with his wife, and occupied the living room for seventeen days and nights, interfering with the tenants’ home life and offending tenants’ sensibilities.)

66. Love v Southern Bell Telephone & Telegraph Company, 263 So 2d 460 (Court of Appeals of Louisiana, 1972) (The plaintiff’s work supervisor, and another supervisor, came to the plaintiff’s home when he did not report for work. They knocked on his trailer, but left when there was no response. They later returned with a locksmith, who opened the door.)

67. B-W Acceptance Corp v Callaway, 162 SE 2d 430 (Supreme Court of Georgia, 1968) (The plaintiff’s husband entered into a purchase agreement with the defendant for some household furniture. Shortly thereafter, the plaintiff’s husband deserted her. The defendant harassed the plaintiff constantly with threatening notices, abusive telephone calls at all hours, personal visits to her home which included entering therein over her protests.)

68. It has been suggested that under certain circumstances, an overlooking window might be enjoined as a violation of the right to privacy. In Pritchett v Board of Commissioners 85 NE 32 (Court of Appeals of Indiana, 1908), a county jail constructed adjacent to a home and kept in such manner that the criminals could look through the jail windows into the home and yard of the home owner, continually annoying such owner, his family and guests was held to constitute a nuisance. The court also found the plaintiff’s right to privacy had been invaded. The court ordered the county officials to close the jail windows on the side next to plaintiff’s home.

69. Hamberger v Eastman, 206 A 2d 239 (Supreme Court of New Hampshire, 1964).

70. Brinbaum v US, 588 F 2d 319 (United States Court of Appeals, 2nd Circuit, 1978) (The plaintiffs’ mail to and from the USSR was opened and read by CIA agents.)

71. Socialist Workers Party v Attorney General of the United States, 444 US 903 (United States Supreme Court, 1978).

72. Zimmerman v Wilson, 81 F 2d 847 (United States Court of Appeals, 3rd Circuit, 1936).

73. Donnell v Lara, 703 SW 2d 257 (Court of Appeals of Texas, 1985).

74. Hamberger v Eastman, 206 A 2d 239 (Supreme Court of New Hampshire, 1964) (The defendant landlord installed and concealed a listening and recording device in the bedroom of tenant plaintiffs. This device was connected to the defendant’s adjacent residence by wires capable of transmitting and recording any sounds and voices originating in the bedroom of the plaintiffs.)

75. Dietemann v Time, Inc, 284 F Supp 925 (United States District Court for the Central District of California, 1968).

76. Forster v Manchester, 189 A 2d 147 (Supreme Court of Pennsylvania, 1963) (The plaintiff was involved in a car accident with another person. The other person’s insurer obtained the assistance of the private detective who assigned a team of two men to conduct surveillance of the plaintiff.)

77. Gill v Hearst Publishing Co, 253 P2d 441 (Supreme Court of California, 1953) (The defendant’s photographer photographed plaintiffs while they were seated in an affectionate pose at their place of business, a confectionery and ice cream concession in the Farmers’ Market in Los Angeles); Berg v Minneapolis Star & Tribune Co, 79 F Supp 957 (United States District Court for the District of Minnesota, 1977) (A newspaper photographer photographed the defendant in a courtroom and published the picture with a newspaper article.)

78. Daily Times Democrat v Graham, 162 So 2d 474 (Supreme Court of Alabama, 1964).

79. Shulman v Group W Productions Inc 955 P 2d 469 (Supreme Court of California, 1998).

80. Shulman v Group W Productions Inc, 955 P 2d 469, 490 (Supreme Court of California, 1998). See also Sanders v American Broadcasting Companies, 978 P 2d 67, 69 (Supreme Court of California, 1999).

81. For illustrative cases applying the decision in the Shulman case, see Sanders v American Broadcasting Companies, 978 P 2d 67 (Supreme Court of California, 1999); Turnbull v American Broadcasting Companies, 32 Media L Rep 2442 (United States District Court for the Central District of California, 2004).

82. PETA v Bobby Berosini Ltd, 895 P 2d 1269 (Supreme Court of Nevada, 1995).

83. Miller v National Broadcasting Co, 187 Cal App 3d 1463 (Court of Appeal of California, 1986).

84. Restatement (Second) of Torts § 652B, comment d. See also Chicarella v Passan, 494 A 2d 1109, 1114 (Superior Court of Pennsylvania, 1985).

85. Bauer v Ford Motor Credit Company, 149 F Supp 2d 1106 (United States District Court for the District of Minnesota, 2001).

86. “[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated”: Branzburg v Hayes 408 US 665, 681 (United States Supreme Court, 1972) .

87. Gallela v Onassis, F 2d 986, 995 (United States Court of Appeals, 2nd Circuit, 1973).

88. For a survey of cases, see Edward L Raymond, “Intrusion by news-gathering entity as invasion of right of privacy”, 69 ALR.4th 1059 (2006).

89. 69 ALR 4th 1027 (Court of Appeal of California, 1986).

90. See also Dietemann v Time, Inc 449 F 2d 245 (United States Court of Appeals, 9th Circuit, 1971).

91. Restatement (Second) of Torts § 652C.

92. Joe Dickerson & Associates, LLC v Dittmar, 34 P 3d 99 (Supreme Court of Colorado, 2001).

93. See Lugosi v Universal Pictures 603 P 2d 425, 431 (Supreme Court of California, 1979) (“The protection of name and likeness from unwarranted intrusion or exploitation is the heart of the law of privacy”).

94. Restatement (Second) of Torts § 652C, comment a. See also Felsher v University of Evansville, 755 NE 2d 589, 601 (Supreme Court of Indiana, 2001).

95. Branson v Fawcett Publications, 124 F Supp 429 (United States District Court for the Northern District of Illinois, 1953) (the use of a photograph of a racing accident which showed an automobile, but showed no identifying marks or numbers, and did not show the driver of the vehicle, did not violate the driver’s privacy). Compare Motschenbacher v RJ Reynolds Tobacco Co 498 F 2d 821 (US Court of Appeals, 9th Cir, 1974) (where the plaintiff, a well-known racing car driver was identifiable from the car used in the advertisement to promote to defendant’s cigarettes).

96. Maxwell v NW Ayer, Inc, 605 NYS 2d 174 (Supreme Court of New York, 1993).

97. Restatement (Second) of Torts § 652C, comment c.

98. See, for example, NY [Civil Rights] LAW § 50. See also the Florida law, which prohibits the use of a person’s name or likeness to directly promote a product or service: FLA STAT ch 540.08 (2006).

99. Restatement (Second) of Torts § 652C, comment (c).

100. Moglen v Varsity Pajamas, Inc, 213 NYS 2d 999, 1001 (Supreme Court of New York, 1961) (dealing with a cause of action under Civil Rights Law).

101. Restatement (Second) of Torts § 652C, comment (d).

102. D’Andrea v Rafla-Demetrious, 146 F 3d 63 (United States Court of Appeals, 1998).

103. See especially R Zapparoni, “Propertising Identity: Understanding the United States Right of Publicity and its Implications — Some Lessons for Australia” (2004) 28 Melbourne University Law Review 690.

104. See Lugosi v Universal Pictures, 10 ALR 4th 1150 (Supreme Court of California, 1979); Memphis Development Foundation v Factors Etc, Inc, 616 F 2d 956 (United States Court of Appeals, 6th Circuit, 1980); Carson v Here’s Johnny Portable Toilets, Inc, 698 F 2d 831 (United States Court of Appeals, 6th Circuit, 1983) (the right does not survive death). Compare Martin Luther King Jr Center for Social Change v American Heritage Products, 296 SE 2d 697 (Supreme Court of Georgia, 1982); Reid v Pierce County, 136 P 2d 333 (Supreme Court of Washington, 1998).

105. Restatement (Second) of Torts § 652C, comment (a).

106. Restatement (Second) of Torts § 652C, comment (a).

107. See D B Dobbs, The Law of Torts (West Publishing, 2001) vol 2, 1198-1199. The origin of the “right to publicity” is generally said to be the decision of the US Court of Appeals for the Second Circuit in Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F 2d 866 (1953); cert denied 346 US 816 (1953).

108. Martin Luther King Jr Center for Social Change v American Heritage Products, 296 SE 2d 697 (Supreme Court of Georgia, 1982).

109. People for the Ethical Treatment of Animals v Bobby Berosini Ltd, 867 P 2d 1121 (Supreme Court of Nevada, 1994).

110. See J W Wade, V E Schwartz, K Kelly and D F Partlett, Prosser, Wade and Schwartz’s Torts (10th edition, Foundation Press, 1994) 942.

111. See D B Dobbs, The Law of Torts (West Publishing, 2001) vol 2, 1199-1200, and authorities there cited.

112. Zacchini v Scripps-Howard Broadcasting Co 433 US 562, 573-574 (1977) (comparing the objects of the appropriation and false light torts).

113. Zacchini v Scripps-Howard Broadcasting Co 433 US 562, 575 (1977).

114. Restatement (Second) of Torts § 652E.

115. Stien v Marriott Ownership Resorts, Inc, 944 P 2d 374 (Court of Appeals of Utah, 1997); Mitchell v Griffin Television LLC, 60 P 3d 1058 (Court of Civil Appeals of Oklahoma, 2002).

116. Muzikowski v Paramount Pictures Corp, 322 F 3d 918 (United States Court of Appeals, 7th Circuit, 2003); Kitt v Capital Concerts Inc, 742 A 2d 856 (District of Columbia Court of Appeals, 1999).

117. Michigan United Conservation Clubs v CBS News, 485 F Supp 893 (United States District Court for the Western District of Michigan, 1980).

118. Howard v Antilla, 294 F 3d 244 (United States Court of Appeals, 1st Circuit, 2002); Steele v The Spokesman Review, 138 Idaho 249 (Supreme Court of Idaho, 2002); Zarach v Atlanta Claims Association, 231 Ga App 685 (Court of Appeals of Georgia, 2002); Association Services Inc v Smith, 249 Ga App 629 (Court of Appeals of Georgia, 2001); Kitt v Capitol Concerts Inc 742 A 2d 856 (District of Columbia Court of Appeals, 1999).

119. Brown v Capricorn Records 136 Ga App 818 (Court of Appeals of Georgia, 1975).

120. Hart v City of Jersey City 308 N J Super 487 (Superior Court of New Jersey, 1998).

121. Phillips v Lincoln County School District, 161 Pr App 429 (Court of Appeals of Oregon, 1999).

122. 88 Or App 192 (Court of Appeals of Oregon, 1987).

123. Memphis Publishing Co v Nichols, 569 SW 2d 412 (Supreme Court of Tennessee, 1978). See also Strickler v National Broadcasting Company, 167 F Supp 68 (United States District Court for the Southern District of California, 1958).

124. Memphis Publishing Co v Nichols, 569 SW 2d 412 (Supreme Court of Tennessee, 1978).

125. Machleder v Diaz, 801 F 2d 46 (United States Court of Appeals, 2nd Circuit, 1986); Goodrich v Waterbury Republican-American Inc, 448 A 2d 1317 (Supreme Court of Connecticut, 1982).

126. Kolegas v Heftel Broadcasting Corporation, 607 NE 2d 201 (Supreme Court of Illinois, 1992).

127. Kumaran v Brotman, 617 NE 2d 191 (Appellate Court of Illinois, 1993).

128. Time, Inc v Hill 385 US 374 (United States Supreme Court, 1967).

129. Zeran v Diamond Broadcasting Inc 203 F 3d 714 (United States Court of Appeals, 10th Circuit, 2000).

130. New York Times Co v Sullivan 376 US 254 (1964).

131. Gertz v Robert Welch, Inc 418 US 323 (1974).

132. See para 4.80-4.84.

133. See V E Schwartz, K Kelly and D F Partlett, Prosser, Wade and Schwartz’s Torts (10th ed, Foundation Press, 2000), 963. And see, eg, West v Media General Convergence Inc, 53 SW 3d 640 (Supreme Court of Tennessee, 2001)

134. Stien v Marriott Ownership Resorts, Inc, 944 P 2d 374 (Court of Appeals of Utah, 1997).

135. Flowers v Carville, 310 F 3d 1118 (United States Court of Appeals, 9th Circuit, 2002).

136. Perere v Louisiana Television Broadcasting Corp, 721 So 2d 1075 (Court of Appeal of Louisiana, 1998).

137. See Harry Kalven, “Privacy in tort law - Were Warren and Brandeis wrong?” (1966) 31 Law and Contemporary Problems 326, 339-341; Raymond Wacks, The Protection of Privacy (Sweet & Maxwell, London, 1980), 171.

138. See Hosking v Runting [2005] 1 NZLR 1, [73] (Gault and Blanchard JJ).

139. Consider D Bedingfield, “Privacy or Publicity? The Enduring Confusion Surrounding the American Tort of Invasion of Privacy” (1992) 55 Modern Law Review 111.

140. Hosking v Runting [2005] 1 NZLR 1, especially [117]-[118] (Gault and Blanchard JJ). For a discussion of this case, see para 3.30-3.41.

141. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281, especially [157], [161]-[163] (3 April 2007). For a discussion of this case, see para 2.30-2.31.

142. Grosse v Purvis 2003] QDC 151, especially [430]-[432]. For a discussion of this case, see para 2.26-2.29.

143. Hong Kong Law Reform Commission, Civil Liability for Invasion of Privacy (Report, 2004).

144. See para 3.42-3.50 (Canadian Provinces). See also para 3.51-3.63 (Ireland).

145. Privacy Act, RSBC 1996, c 373, s 1(4); The Privacy Act, RSM, c P-125, s 3 (a) and (c); Privacy Act, RSNL, c P-22, s 4(a) and (b); The Privacy Act, RSS 1978, s 3(a) and (b). See also Privacy Bill 2006 (Ireland) cl 3(2)(d).

146. The Privacy Act, RSM, c P-125, s 3 (d); Privacy Act, RSNL, c P-22, s 4(d); The Privacy Act, RSS 1978, s 3(d). See also Privacy Bill 2006 (Ireland) cl 3(2)(a) and (e).

147. The Privacy Act, RSM, c P-125, s 3 (c); Privacy Act, RSNL, c P-22, s 4(c); The Privacy Act, RSS 1978, s 3(c). See also Privacy Bill 2006 (Ireland) cl 3(2)(c). Contrast British Columbia, where the unauthorised use of name or likeness is stand-alone tort: Privacy Act, RSBC 1996, c 373, s 3.

148. See para 1.5-1.20, Chapter 6.

149. Consider Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [41], [42] (Gleeson CJ), [120]-[128], [132] (Gummow and Hayne JJ).

150. See para 7.38-7.48.

151. See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [332] (Callinan J).