d. Sex change – Diaz, p. 1161 (claim)e. Teenage pregnancies – Hawkins, p. 1161 (claim)f. Abortion (Doe, p. 1162) (claim)a. Normally: No prior restraintb. Common law requirements like special damages for slander(1) one party may record unless purpose is to commit tort or crime (p. 1189)(2) Person who discloses also liable except where liability contra to First Amendment2. No clear, easy answer: Because of these conflicting values, it is not always easy to state a rule or to fit cases together because First Amendment and free speech values affect both common law and statutory claims. (See Winter (p. 1220)(1) contract(2) relationship3. TrespassB. Websites ( Famousname.com) (Acyber squatting@) -- possible claimsPRIVACY.13TORTS OUTLINE--2012 Professor HubbardPRIVACYI. Background and IntroductionA. History (1134–1136)B. Prosser=s (and the Second Restatement=s) four categories1. intrusion2. public disclosure of private facts3. false light4. appropriationC. Values protected by the various causes of action1. Commercial aspects of name, likeness, etc. (property/ownership) (appropriation)a. action internalizes cost of developing image or secret data.b. overlaps with(1) conversion(2) defamation2. Reputation--False light (overlaps with [same as?] defamation)3. Private aspects of life (intrusion, public disclosure of private facts; and appropriation (a-(3)-(b))a. A private sphere is needed for several, overlapping reasons: (1) psychological needs(2) peace/harmony, creativity(3) dignity/personhood(a) control of image1(b) sense of elan(c) sphere for intimate relations(d) individualityb. Overlaps with: (1) trespass(2) intentional infliction of emotional distress4. Values/scheme involved where privacy vis a vis the state (government) involveda. Fourth Amendmentb. Fifth Amendmentc. Data banks5. Competing valuesa. speechb. truth(1) see Judge Posner in Haynes, at 1125; compare pp. 1147–48(arguing that public disclosure privacy tort enables people to misrepresent themselves)(2) e.g., protecting from insurance fraudD. Consent: As to all four torts, consent appears to be a defense (or to show elements not satisfied).II. Public Disclosure of Private FactsA. Summary of elements of cause of action1. Restatement ' 652D (n. 2, p. 1142)a. Publicityb. private matterc. highly offensive to reasonable person2d. not a legitimate public concern2. Standard of care as to each? (See n. 6, p. 1145 (Areasonable@ belief in need for name, likeness))3. Causation/damagesB. Rejected by some states. (n. 13, p. 1147)C. Publicity1. Definition different from Apublication@ in defamation: Definition requiresmore than a small group of people. Ozer v. Borquez (n. 9, at p. 1145) notes: (1) each case is fact specific; and (2) defendant can be liable even if “merely initiates the process” of disclosure to a sufficiently large group. Consider liability of person who tells a reporter about a private fact relatingto another person.2. Compare claim for breach of duty of confidentiality arising from contractor from a relationship--e.g., attorney/client: Telling one person is sufficient to breach duty of confidentiality. (n. 10, p. 1146) Central issue in these cases is: Does relationship give rise to duty of confidentiality as to matter at issue?D. Private Matter: Every case is unique in terms of facts1. Has not been made public2. Effects ofa. time—Haynes (no claim), p. 1137; Melvin (claim), p. 1139; Sidis (no claim), p. 1139(1) Effect of Cox (p. 1148) on convictions of crime and other court records? For cases denying claim, see Gates, n.5, p.1145 (overruling Briscoe); Uranga, n.6, p. 1146 (See E-2-a-(3) below)b. space--Sipple, n. 5 at p. 1145; see n. 7, p. 11453. Sexual/reproductive mattersa. Orientation – Sipple, n. 5, p. 1144 (no claim); Ozer, n. 9, p. 1145 (claim)b. Nudity? (See 5-d below)c. Conduct – Melvin v. Reid, p. 1139 (claim for revealing prostitution 3in past; effect of Cox? (see 2-a-1 above))d. Sex change – Diaz, p. 1161 (claim)e. Teenage pregnancies – Hawkins, p. 1161 (claim)f. Abortion (Doe, p. 1162) (claim)4. Criminal conducta. no conviction (See Melvin, p. 1139; effect of Cox? (see 2-a-(1) above))b. conviction (See 2-a-(1) above)5. Embarrassment or ridicule - examplesa. drunken behavior (See Haynes)b. Doe v. Mills, p. 1162 (claim)c. Virgil, n. 5, p. 1144 (no claim – newsworthy)d. consider: photo of inside of open-zipper area on pants; wet t-shirt contest6. Crime victim (particularly sexual assault).a. public record as source. See Cox, p. 1148; Florida Star, p. 1150 (no claim)b. public record not the source. See Ross, n.4 at p. 1143 (no claim because strengthened “impact and credibility”)c. sex abuse (M.G., p. 1162) (claim)E. No Legitimate Public Concern1. Common Lawa. What is test? ACommunity mores@? (see n. 3 at p. 1143; n. 13, p. 1147 (rejecting tort for lack of standard); p. 1160 (concern for “intolerable uncertainty”))b. Examples(1) Individualized story to illustrate broader public issue4(a) No claim – Haynes, at pp. 1140–1141; n. 4, p. 1143(b) Claim – Hawkins v. Multimedia, Inc. (pp. 1161–1162) (disclosure of name of teenage father of illegitimate child [mother= s name sufficient for purposes of making real and reliable?])(2) Virgil (n. 5, p. 1160) (personal facts help explain unique approach to body surfing)(3) Diaz (p. 1161) (claim; not newsworthy)2. Constitutional Limitsa. Lack of clarity as to limits. The Supreme Court has provided virtually no guidance as to limits. Three things are clear:(1) there are limits(2) these limits do not preclude at least some public disclosure claims(3) no public disclosure claims can be brought where government has made matter publicb. Florida Star v. BJF, p. 1150(1) majority opinion(2) White=s dissent(3) impact – see n. 5, p. 1159; D-2-a-(1), D-3-c, D-4, D-6 aboveF. Personal claim – i.e., A cannot sue for publication of private facts about B even though publishing these facts make A look bad or feel bad.G. Injunctive relief (pp. 1162–1163)1. No clear answera. Normally: No prior restraint b. But:(1) Cannot Afix@ with truth as with defamation(2) Defendant may not be able to pay5(3) No legitimate public concern2. Cases where injunction granteda. Contractual/professional relationship (duty of confidentiality) Roe v. Doe, p. 1162b. Wiseman, p. 1163III. False Light (pp. 1163-1164)A. Elements of common law claim (Restatement (Second) ' 652E)1. Publicity2. AFalse light@ a. Falseb. Defamatory [?] Other [?] (See A3@ below and