Chapter 7 Invasion of Privacy Appropriation and Intrusion INTRODUCTION THE END OF PRIVACY Invasion of privacy is a multifaceted tort that is designed to redress a variety of grievances including the commercial exploitation of an individual s name or likeness the intrusion on what might be called our private domains the revelation of intimate information about someone and the libel like publication of embarrassing false information about a person Smart phones give opportunity to record on demand The Supreme Court says a government employee should not expect privacy when using government electronic devices Government increasingly insists on gaining access to electronic messages to track criminals or uncover terrorist plots Social networking sites aggregate millions of people s personal information Is privacy still important or do we have a willingness to trade it away for seeming security economic convenience or social networking INVASION OF PRIVACY Unlike libel law which has existed for centuries rights of privacy are young and still developing The intrusive newspaper reporting of the late 19th century is the likely genesis of the privacy law that exists today THE GROWTH OF PRIVACY LAWS The right to privacy is not in the Constitution or Bill of Rights In 1965 the Supreme Court ruled in Griswold v Connecticut that something like a right to privacy was implicit in the Bill of Rights Sam D Warren and Louis D Brandeis used the Harvard Law Review to propose a legally recognized right to privacy in their piece The Right to Privacy that can be legitimately regarded as the fountain from which the modern law of privacy has flowed It is easier to make generalizations about libel law that reflect the law in every state or in most states than it is to make these generalizations about the law of privacy Four Areas of Privacy Law 1 Appropriation of name or likeness for trade purposes 2 Intrusion upon an individual s solitude 3 Publication of private information about an individual 4 Publishing material that puts an individual in a false light Page 1 Appropriation In the law of privacy use of a person s name or likeness without consent for advertising or trade purposes Appropriation is taking a person s name picture photograph or likeness and using it for commercial gain without permission Intrusion An invasion of privacy committed when one individual intrudes upon or invades the solitude of another individual Publication of private information In privacy law publicizing embarrassing private information about an individual that is not of legitimate public concern More than one person must see or hear this information Gossip substance of private conversations and details of a private tragedy or illness have all been used as the basis of a suit False light That portion of privacy law that prohibits all publications or broadcasts that falsely portray an individual in an offensive manner All four elements of the law of privacy are applicable in the lawsuits that result from claims of invasion of privacy via interactive computer systems Most problems fall under two of the privacy subtorts intrusion and publication of private information Intrusion can be outsiders collecting data from Internet users with or without their knowledge Publication of private information can be publishing that data in a variety of ways and for a variety of reasons Only people enjoy their right to privacy Corporations labor unions associations and so forth can protect their reputations through libel law but they do not have a right to privacy APPROPRIATION It is illegal to appropriate an individual s name or likeness for commercial or trade purposes without consent Appropriation is the oldest of the four privacy torts Appropriation protects an individual s name or likeness from commercial exploitation Abigail Roberson lost her case after her picture had been used all over town on posters advertising Franklin Mills Flour Georgia was the first state to recognize the right of privacy through the common law Paolo Pavesich won his case after a life insurance company used his photograph in a before and after newspaper advertisement Page 2 RIGHT OF PUBLICITY Right of publicity An offshoot of privacy law that protects the right of persons to capitalize on their fame or notoriety for commercial or advertising purposes The appropriation tort encompasses two slightly different legal causes of action the right to privacy and the right of publicity The differences between these 1 The right to privacy dimension of appropriation was designed to protect an individual from the emotional damage that can occur when a name or likeness is used for a commercial or trade purpose The right to publicity is an attempt to remunerate individuals for the economic harm suffered when their name or picture is used for advertising or trade purposes and they are not compensated for it 2 Because the right of publicity protects a property right the economic value in a name or likeness normally only someone whose name or likeness has a commercial value can successfully allege a violation of his or her right of publicity The average person can only assert emotional damage in a right of privacy suit 3 The right of publicity for a well known person is descendible meaning their property right in their name can be passed on to their heirs For the rest of people their right to privacy dies when they do Right to publicity litigation has accelerated because of the growth of the cult of celebrity around the world and because American businesses and other organizations have seen this rend and decorate their products ads promotions and so on with the likeness and names of these celebrities USE OF NAME OR LIKENESS Only the names of people are protected under appropriation Stage names pen names pseudonyms and so forth count the same as real names in the eyes of the law The names of businesses corporations schools and other things are not protected under the law However the use of trade names can create serious legal problems A photograph of an individual is a likeness But the photo doesn t have to be a facial shot but it must be identifiable A likeness can also be a sketch or a drawing Protecting a voice might also be encompassed in a law protecting a name or likeness Example Facenda s voice in the Madden video game Celebrities have argues with some success that the protection of their likeness extends to depictions of characters they played in movies or on television
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