Chapter 22 INVASION OF PRIVACY

• Jurisdiction: North Carolina

22 INVASION OF PRIVACY

A. Definition

Samuel D. Warren and Louis D. Brandeis first recognized the invasion of privacy as a tort in their seminal article, "The Right to Privacy," in 1890.¹ The right to privacy was elaborated on by Dean William Prosser, and by 1977, the drafters of the Restatement of Torts adopted the four categories of the tort as developed by Prosser.

The four categories of invasion of privacy are: (1) appropriation of another's name and likeness ("appropriation"), (2) unreasonable publicity given to another's private life ("disclosure"), (3) unreasonable intrusion upon the seclusion of another ("intrusion"), and (4) publicity that unreasonably places another in a false light before the public ("false light"). North Carolina has recognized two of the four invasion of privacy torts: appropriation and intrusion.²

The North Carolina Supreme Court has declined to recognize disclosure because the tort might duplicate other torts in existence in North Carolina, such as intentional infliction of emotional distress, and because the tort might impinge on the U.S. Constitution's First Amendment protection of free speech and press.³ Similarly, the Court has declined to recognize false light, as the tort might overlap with that of libel or slander and potentially impinge upon the U.S. Constitution's First Amendment protections.⁴

B. Elements

1. Appropriation of Another's Name and Likeness

The elements of the tort of appropriation are as follows:

(1) The defendant appropriated the plaintiff's name or likeness for the defendant's own commercial use and benefit, and
(2) The plaintiff did not consent to the defendant's appropriation of his name or likeness.⁵

2. Unreasonable Intrusion Upon the Seclusion of Another

The elements of the tort of intrusion are as follows:

(1) The defendant intruded upon the privacy of the plaintiff;⁶
(2) The defendant's intrusion was intentional (an act is intentional when it is done knowingly, or with purpose, or with reckless indifference to its consequences⁷); and
(3) A reasonable person would be highly offended under similar circumstances.⁸

C. Defenses

The statute of limitations for invasion of privacy claims is three years.⁹ The extent of constitutional protection as a defense against privacy torts that do not involve falsity of information has not yet been determined.¹⁰

D. Damages

The plaintiff may recover both actual and nominal damages.¹¹

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Notes:

^[1] 4 Harv. L. Rev. 193 (1890).

^[2] Miller v. Brooks, 123 N.C. App. 20, 26, 472 S.E.2d 350 (1996), disc. review denied, 345 N.C. 344, 483 S.E.2d 172 (1997).

^[3] Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988). See also N.C.P.I. - Civ. 800.70, fn 1.

^[4] Renwick v. News & Observer Pub. Co., 310 N.C. 312, 312 S.E.2d 405, reh'g denied, 310 N.C. 749, 315 S.E.2d 704, cert. denied, 469 U.S. 858, 83 L. Ed. 2d 121, 105 S. Ct. 187 (1984). See also N.C.P.I. - Civ. 800.70, fn 1.

^[5] See Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938); Barr v. S. Bell Tel. & Tel. Co., 13 N.C. App. 388, 185...