Developments in the Right of Privacy in Colorado

• Publication year: 2002
• Pages: 9
• Citation: Vol. 31 No. 2 Pg. 9

31 Colo.Law. 9 Colorado Lawyer 2002.

2002, March, Pg. 9. Developments in the Right of Privacy in Colorado

---

9

Vol. 31, No. 2, Pg. 9

The Colorado Lawyer
March 2002
Vol. 31, No. 3 [Page 9]

Articles
General Interest Article
Developments in the Right of Privacy in Colorado
by Thomas B. Kelley, Christopher P. Beall

Colorado courts in recent years have substantially developed the parameters of the individual torts within the law of privacy. This article discusses the development of privacy doctrines, which has come with a significant effort to balance the interests in seclusion with the rights to speak and publish freely on matters of public concern. At the same time, the Colorado General Assembly has enacted a series of specific statutes to protect discrete areas of privacy interests

Thomas B. Kelley is a partner and Christopher P. Beall is an associate at Faegre & Benson LLP, Denver, where they practice media and First Amendment law - (303) 592-9000

In recent years, the courts of Colorado have been busy fleshing out the common law right of privacy in this state The Colorado Supreme Court first recognized the tort of invasion of privacy in 1970.1 However, recent decisions have endeavored to define the scope of the individual torts within the privacy rubric, recognizing a claim for "publicity of private facts" in 1997,2 "intrusion" in 1998,3 "publicity placing a person in a false light" in 2000,4 and "appropriation of name or likeness" in 2001.5Along the way, Colorado's judges have confronted the essential tension between the doctrines undergirding the so-called "right to be left alone" and Colorado's historically- and constitutionally-based right to speak and publish freely on matters of public concern.

This tension, and its resolution, is most evident in the recent privacy decision Joe Dickerson & Associates, LLC v. Dittmar.6In that decision, the Colorado Supreme Court recognized a broader cause of action for appropriation of a person's name or likeness than has been recognized in other jurisdictions. At the same time, the Court placed broad, constitutionally-based limitations on the cause of action, effectively barring such claims in situations where the use of the plaintiff's identity has occurred in any kind of publication, including a promotional brochure, in a manner that is relevant to a matter of public concern.

This article surveys these and other recent developments in Colorado's privacy law, paying particular attention to the aspects of Colorado's common law that differ from other states. The article also focuses on the points of privacy law recognized by the Colorado Supreme Court Committee on Civil Jury Instructions in Chapter 28 of the Colorado Civil Jury Instructions. Statutory developments also are reviewed.

BIRTH AND DEVELOPMENT OF THE RIGHT OF PRIVACY

The right of privacy now being invoked by litigants was born in an age long before AIDS, computer databases, the Internet, or electronic eavesdropping equipment. Litigants are as diverse as an employee convicted of embezzlement and a lawyer whose HIV-infection was disclosed without his consent. Most authorities trace the beginnings of the law of privacy to an article published in 1890 entitled "The Right to Privacy."7 Its lead author, Samuel D. Warren, had a personal stake in the matter. Warren was a wealthy, young paper manufacturer who had given up his law practice the year before to devote himself to an inherited business. He was married to a senator's daughter, a pillar of Boston high society with a fondness for hosting elaborate social entertainments at her home. With an appetite for blood, preferably blueblood, the local press reported on these parties in highly personal and embarrassing (at least to proper Bostonians) detail, and purportedly reached peak intensity in covering the wedding of a Warren daughter.8 An enraged Warren enlisted the aid of his recent law partner, a man who, in Dean William Prosser's understated phrase, "was destined not to be unknown to history"9 - Louis Brandeis.10

Together, Warren and Brandeis constructed an argument for a legal "right to be left alone" in the 1890 article.11A tone of high-society dudgeon permeated their presentation:

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.12Thus, the authors coined the term "right to privacy," which they urged was to be found in existing case law. The 1890 article focused primarily on a claimed right to control publicity concerning one's self in the columns of newspapers, a right that then and now enjoys little support in the law, and is now largely precluded by judicial holdings under the First Amendment. Nonetheless, the "right of privacy" in some form has received recognition in most U.S. jurisdictions.

Largely as a result of a law review article by Dean Prosser, published in 1960, which has proved more influential in shaping the law of privacy than the original Warren/Brandeis piece, courts have recognized the right of privacy as including four distinct legal claims:13 Intrusion on seclusion

Publicity given to private facts

Publicity placing one in a false light

Appropriation of one's name, likeness, or persona

Not every state recognizes each of these torts, and the Colorado Supreme Court has thus far recognized only three of the four separate torts.14 Before reviewing the status of each of these privacy causes of action in Colorado, some general observations can be made about the privacy torts under Colorado common law:15 The right of privacy is personal, and, with the possible exception of the cause of action for appropriation, the tort and the rights giving rise to it may not be assigned and do not survive a person's death.

There is no "relational" right of privacy on behalf of the family or associates of the person whose privacy has been invaded; thus, only the person referred to (or his or her assignee in the case of the tort of appropriation) may maintain the action.

Because corporations, associations, and partnerships have neither feelings nor any right to personal privacy, they may not recover for an invasion thereof, and suits for invasion of privacy can be brought only by individuals. Corporate owners of computer systems that are hacked into or used for unauthorized "spamming" may have causes of action under different torts, such as trespass to personal property.16 Obtaining unauthorized access to computers in most instances also would violate federal law.17

Intrusion

The first privacy case in Colorado, Rugg v. McCarty, without specifying the particular branch of the tort being addressed, recognized a cause of action for the kind of invasion of privacy that is now typically described as intrusion.18 The claim of intrusion was given more precise definition in Doe v. High-Tech Institute, Inc., a case decided by the Colorado Court of Appeals in which the plaintiff's blood was tested for presence of the HIV virus without his consent.19 In Doe, the court held that it was an invasion of privacy by intrusion to test a blood sample for HIV when the sample was ostensibly taken for testing for rubella.20 The court cited cases holding that consent to a blood test for a general medical examination does not preclude a claim for intrusion should the sample be tested for use of controlled substances.21

The following are elements of the tort as set forth in intrusion cases and reflected in the pattern jury instructions in use in Colorado:22

1. The defendant intentionally invaded the plaintiff's privacy by [insert description of act(s) alleged to constitute intrusion].

2. The invasion would be very offensive to a reasonable person.

3. The plaintiff had (injuries) (damages) (losses).

4. The invasion was a cause of the plaintiff's (injuries) (damages) (losses).

For the intrusion to be intentional, the defendant must at least know "that his or her conduct will almost certainly cause an invasion of privacy," and may require that the defendant knows he or she lacks permission or consent to commit the intrusive act.23In determining whether an invasion is "very offensive to a reasonable person," the factors to be considered include "the degree of invasion, the circumstances surrounding the intrusion and the manner in which it occurred, the defendant's motives and objectives, the setting in which the intrusion occurs, and the plaintiff's expectations of privacy in that setting."24Invasion of privacy by intrusion does not depend on any publicity or mass communication nor does it require a physical intrusion. The gist of the tort is interference with the plaintiff's solicitude, seclusion, or private affairs and concerns. This can occur by unauthorized entry to the plaintiff's premises, electronic eavesdropping, unauthorized opening of the plaintiff's mail, repeated hounding or harassment, or the testing of plaintiff's bodily fluids without plaintiff's consent.25

On the other hand, some arguably intrusive conduct is not actionable because it involves no expectation of privacy that society is prepared to regard as reasonable. It is not an invasion of privacy under the intrusion doctrine to examine public records or other information that is properly available for public inspection, nor is there liability for observing or...