B. Privacy

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

B. Privacy

1. Introduction

The legal right of privacy has been developed in this country to protect "the right to be let alone . . . and free from unwarranted publicity."³⁴¹ The South Carolina Court of Appeals in Snakenberg v. The Hartford Casualty Insurance Co.,³⁴² summarized the development of privacy law as follows:

The law recognizes that each person has an interest in keeping certain facets of personal life from exposure to others. This interest in "privacy" is a distinct aspect of human dignity and moral autonomy. . . . However, in the classical common law, this privacy interest did not give rise to a separate cause of action for damages. In part, this was because many interests we now regard as rights of "privacy" were already protected by the common law in other ways. For example, if you entered my dwelling, or opened my diary, or beset me in public, or put hands on me, I could sue you for trespass to my land, my things, or my person. Other types of intrusive conduct gave rise to additional actions for nuisance, defamation and the like.
. . .
At the beginning of this century, however, American courts began to recognize a separate tort liability for interference with another's privacy, and the right to privacy was born. Following the seminal case of Pavesich v. New England Life Insurance Company, 122 Ga. 190, 50 S.E. 68 (1905), the South Carolina Supreme Court first recognized a right of privacy in Holloman v. Life Insurance Company of Virginia, 192 S.C. 454, 7 S.E.2d 169, 127 A.L.R. 110 (1940). Although the Court has decided several "right to privacy" cases since Holloman, the common law of privacy remains largely undeveloped in South Carolina.

Invasion of privacy is a distinct tort³⁴³ and has been defined by the South Carolina Supreme Court as:

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.³⁴⁴

The Court of Appeals of South Carolina interpreted this definition to mean that

three different causes of action can arise under the tort of invasion of the right of privacy: (1) wrongful appropriation of personality; (2) publicizing of private affairs of no legitimate public concern; and (3) wrongful intrusion into private affairs. A necessary element of each different claim is damages.³⁴⁵

The Snakenberg opinion noted that there are "significant differences" among these three actions and elaborates on these differences 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.

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.³⁴⁶

Traditionally, a fourth cause of action—"false light"—is also included in the listing of privacy torts;³⁴⁷ however, no South Carolina case has yet recognized this tort.³⁴⁸ This action involves publicity that places the plaintiff in a false light that is highly offensive to a reasonable person where the defendant had knowledge of or acted in reckless disregard of the false light involved.³⁴⁹ This tort overlaps considerably with defamation;³⁵⁰ and if the term "defamatory" is given a broad definition, it would seem that the distinctions between the two torts are not important.³⁵¹ Thus, there is merit in leaving "false light" out of the list of privacy torts so long as the scope of defamation is defined broadly. Still, until the appellate courts declare the viability of the tort the careful pleader will include such allegations in an appropriate case.³⁵²

The same approach might also be taken to the tort of "appropriation" because, as the Snakenberg opinion notes, the gist of the action is really a matter of a property right to profit from the use of one's own name or likeness.³⁵³ The interest is not a right to be left alone, but rather a right to the exclusive use of one's own identity as a form of "property."³⁵⁴ Thus, the tort may have more in common with such torts as conversion or interference with economic relations or with claims like trademark interference³⁵⁵ than it does with "intrusion" or "public disclosure."

Despite these reasons for excluding "false light" and "appropriation" from privacy, the present treatment will follow the conventional approach and include them. Nevertheless, the arbitrariness of lumping these four disparate categories together and the fundamental differences among the actions should be kept in mind.

Finally, all these invasions of privacy claims, except wrongful appropriation of personality, require that the information be private.³⁵⁶ For instance, if the information can be discovered through a basic "Google" search, it has already been made public.³⁵⁷

2. The Privacy Actions

a. Intrusion

A number of South Carolina cases have recognized the cause of action for intrusion.³⁵⁸ Snakenberg v. The Hartford Casualty Insurance Company³⁵⁹ summarizes the elements of this tort as follows:

(1) Intrusion. An intrusion may consist of watching, spying, prying, besetting, overhearing, or other similar conduct. Whether there is an intrusion is to be decided on the facts of each case.
(2) Into that which is private. The intrusion on the plaintiff must concern those aspects of himself or herself, the plaintiff's home, the plaintiff's family, the plaintiff's personal relationships, and the plaintiff's communications which one normally expects will be free from exposure to the defendant.
(3) Substantial and unreasonable enough to be legally cognizable. In 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.³⁶⁰
(4) Intentional. The defendant's act or course of conduct must be intentional.³⁶¹

As with nuisance,³⁶² one's right to privacy must be placed in the context of adjoining property owners' rights to use their property. Thus, there is no intrusion if a neighbor lawfully constructs a deck that enables the neighbor to look into plaintiff's house.³⁶³

In determining whether the intrusion is sufficiently shocking or outrageous, it is important to consider not only what the defendant has done but also what legitimate interest the defendant has at stake. Thus, a creditor making inquiry may have a legitimate interest in the information sought, and this interest may justify the creditor's actions so long as they are a reasonable means of pursuing the creditor's goal.³⁶⁴ Similarly, there is no intrusion where litigants or attorneys obtain information or documents by the proper use of legal process such as a subpoena.³⁶⁵

Some criminal statutes are intended to protect the privacy interest in being free from intrusive conduct. For example, South Carolina Code Section 16-17-470 makes it "unlawful for any person to be an eavesdropper or a Peeping Tom on or about the premises of another." The statute has been amended to include "voyeurism" as a crime.³⁶⁶ Statutes like these can also serve as the basis for an independent civil action.³⁶⁷

If the intrusion involves one's premises or chattels, a cause of action for trespass might also be available.³⁶⁸

Protection from unwarranted governmental intrusion is assured by the South Carolina Constitution, article I, Section 10 which provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . .³⁶⁹

The Fourth Amendment to the United States Constitution has nearly the same language except that it does not include the reference to "unreasonable invasions of privacy," although the core concern of the Fourth Amendment is also the protection of privacy.³⁷⁰ A cause of action for damages may exist under federal civil rights acts and under the Federal Constitution for injury resulting from violation of the Fourth Amendment.³⁷¹

b. Appropriation

Discussions of privacy in the South Carolina cases recognize a cause of action for appropriation. In Sloan v. South Carolina Department of Public Safety,³⁷² the South Carolina Supreme Court stated:

Wrongful appropriation of personality involves intentional, unconsented to 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 at common law to publicize and profit from his name, likeness, and other aspects of personal identity.³⁷³

Sloan involved a claim of misappropriation based on the state agency's sale of driver's license information to a private enterprise for identity verification and fraud prevention purposes. Such sales, which were subsequently prohibited by the General Assembly, were authorized by statute at the time...