23 Invasion of Privacy

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

23 Invasion of Privacy

A. Definition

Invasion of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.¹

Apparently the earliest recognition of the action was in a 1940 decision in which the South Carolina Supreme Court said it agreed "with a number of authorities to the effect that the violation of [a right of privacy] is under certain circumstances a tort which would entitle the injured person to recover damages."²

In South Carolina, three separate and distinct causes of action can arise under invasion of privacy: (1) wrongful appropriation of personality; (2) publicizing of private affairs of no legitimate public concern;³ and (3) wrongful intrusion into private affairs.⁴ A necessary element of each claim is damages.⁵ The Snakenberg decision elaborates on the significant differences in these causes of action as follows:

Wrongful appropriation of personality involves the intentional, unconsented use of the plaintiff's name, likeness, or identity by the defendant for his own benefit. The gist of the action is the violation of the plaintiff's exclusive right of common law to publicize and profit from his name, likeness, and other aspects of personal identity.
Wrongful publicizing of private affairs involves a public disclosure of private facts about the plaintiff. The gravamen of the tort is publicity as opposed to mere publication. The defendant must intentionally disclose facts in which there is no legitimate public interest — there is no right of privacy in public matters. Additionally, the disclosure must be such as would be highly offensive and likely to cause serious mental injury to a person of ordinary sensibilities. Finally, where the plaintiff is a public figure, other considerations, including whether the defendant acted with malice, may be relevant to establishing a cause of action.⁶
Wrongful intrusion into private affairs, consists of the following elements which must be pleaded and proved: (1) Intrusion ... (2) Into that which is private ... [which is] (3) Substantial and unreasonable ... [and] (4) Intentional. . In an action for wrongful intrusion into private affairs, the damage consists of the unwanted exposure resulting from the intrusion. Thus, if the plaintiff proves the four elements needed to establish his cause of action, the fact of damage is established as a matter of law.⁷

One treatise has contended that certain criminal statutes⁸ that protect privacy may serve as a basis for an independent civil action.⁹

B. Elements and Definitions of the Three Causes of Action Under Invasion of Privacy

1. Wrongful Intrusion - Defined as follows by the Snakenberg¹⁰ Court:

a. Intrusion. An intrusion may consist of watching, spying, prying, besetting, overhearing, or other similar conduct.¹¹ Whether there is an intrusion is to be decided on the facts of each case.¹²
b. Into that which is private. The intrusion on the plaintiff must concern those aspects of himself, his home, his family, his personal relationships, and his communications which one normally expects will be free from exposure to the defendant.¹³
c. Substantial and unreasonable enough to be legally cognizable.¹⁴In order to constitute an invasion of privacy, the defendant's conduct , must be of a nature that would cause mental injury to a person of ordinary feelings and intelligence in the same circumstances. Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956). The law protects normal sensibilities, not heightened sensitivity, however genuine. Meetze v. Associated Press, supra; Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 [(Ct. App.1984)] (plaintiff must show a blatant and shocking disregard of his rights and serious mental injury or humiliation to himself as a result thereof).¹⁵ Whether the conduct in question meets this test is, in the first instance, a question of law for the court. Meetze v. Associated Press, supra.
d. Intentional. The defendant's act or course of conduct must be intentional.

In Park vs. Southeast Service Corp.,¹⁶ the plaintiff alleged that the defendant's employee intentionally used a video camera to record her using the restroom and, thus, intruded on aspects of her life that she expected to be free from exposure. She claimed the employer was vicariously liable for the acts of its employee. The court did not agree. It decided that the plaintiff had not made a plausible argument that the employee's actions were committed in furtherance of his employment. Instead, it said that the only appropriate way to view the acts were as a temporary suspension of the master-servant relationship, for which the employee himself was solely liable. The plaintiff's claim for wrongful intrusion of private affairs was dismissed.

2. Appropriation

Appropriation is recognized in South Carolina, but only one case has involved a claim for "misappropriation."¹⁷ Wrongful appropriation of personality involves intentional, unconsented use of a person's name, likeness, or identity for the defendant's own benefit and the gist of the action is violation of the exclusive right at common law to publicize and profit from one's own name, likeness, and other aspects of personal identity.¹⁸

The South Carolina Supreme Court has held that the state recognizes the tort of infringement on the right of publicity and has said that it is denominated wrongful appropriation of personality and addresses the right of every human being to the commercial protection of his or her name, likeness, or identity.¹⁹ Wrongful appropriation of personality has been said to involve infringement on the right to publicize and profit from one's name, likeness, or other aspects of personal identity.²⁰ It is unclear whether a plaintiff must establish celebrity status to prevail.²¹

The right to control the use of one's identity is said to be a "property right that is transferable, assignable, and survives the death of the named individual."²²

3. Publicizing Private Affairs

To maintain an action, plaintiff must show that the defendant gave publicity to a matter that is: (1) private; (2) highly offensive to a reasonable person; and (3) not of legitimate public concern.²³ Malice is not an element, and is "relevant only when the plaintiff is seeking punitive damages."²⁴

For the plaintiff to maintain an action, the fact disclosed must be private. There is no right of privacy regarding things that are matters of public record or that, by their very nature, cannot be kept private.²⁵

a. Publicity

The plaintiff must show the defendant publicized the private facts.²⁶ Publicity of private facts involves communication to more than a small number of people.²⁷ In Rycroft v. Gaddy, the Court explained that it is "publicity, as opposed to publication, that gives rise to a cause of action for invasion of privacy."²⁸ Communication to a single individual or to a small group of people, absent a breach of contract, trust, or other confidential relationship, will not give rise to liability.²⁹ The supreme court in Swinton Creek Nursery v. Edisto Farm Credit³⁰ agreed and found that a letter sent only to a potential purchaser of plaintiff's business did not support a claim for disclosure of private facts.

Filing medical records in judicial proceedings was found not to constitute "publicizing."³¹

b. Disclosure of Private Matter that is Offensive to a Reasonable Person

A violation of the legal right of privacy has been recognized as occurring when "a person unreasonably and seriously interferes with another's interests in not having his affairs known to others or his likeness exhibited to the public ...".³² The right of privacy is not an absolute right.³³ Some limitations are essential for the protection of the right of freedom of speech and the interests of the public.³⁴ In almost every case involving assertion of a right of privacy, the court must balance the rights between the individual and the interests of society.³⁵ Finally, in order to constitute an invasion of the right of privacy, an act must be of such a nature as a reasonable man could see it might and probably would cause mental distress and injury to anyone possessed of ordinary feelings and intelligence, situated in like circumstances as the complainant.³⁶ This question is to some extent one of law.³⁷

c. Legitimate Public Interest

A cause of action for public disclosure lies only for disclosure of private facts which are of no legitimate public concern.³⁸ A person may by his acts, achievements or mode of life become a public character, willingly or not, and lose to some extent the right of privacy that otherwise would be his.³⁹ Ordinarily, whether a fact is a matter of public interest is a question of fact to be decided by the jury.⁴⁰

d. False Light

In South Carolina, claims for false light have not been formally discussed, but rather, treated as the equivalent of libel,⁴¹ or combined in a single cause of action with invasion of privacy.⁴² Thus, there is reason to conclude there may be no claim for false light in South Carolina.⁴³

C. Defenses

A defendant may avoid liability for invasion of privacy by showing the injured party consented to the publication of facts about his private life.⁴⁴ The defendant has the burden of proving consent.⁴⁵ Consent may be found where the evidence shows a "voluntary agreement to do something proposed by another and the party consenting possesses sufficient information and ability to make an intelligent choice."⁴⁶ Waiver may also be a defense.⁴⁷ Unlike defamation⁴⁸ truth is not a defense to an action for invasion of privacy.⁴⁹

The South Carolina Tort Claims Act⁵⁰ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations...