Invasion of Privacy

• Author: Kevin R. Culhane
• Pages: 263-294

25-1

Chapter 25

Invasion of Privacy

§2500 INTRODUCTION

§2510 ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION

§2511 Intrusion into Private Affairs

§2512 Public Disclosure of Private Facts

§2513 Holding Plaintiff Up to False Light in the Public Eye

§2514 Appropriation of Name or Likeness

§2515 Defenses in Invasion of Privacy Cases

§2516 Definitions

§2517 Information Regarding the Parties

§2517.1 Information Regarding Defendant

§2517.1.1 Identification of Defendant

§2517.1.2 Personal Data Regarding Defendant

§2517.1.3 Agency Relationships

§2517.1.4 Similar Claims and Legal Proceedings

§2517.2 Information Regarding the Plaintiff

§2517.2.1 Personal Information Regarding the Plaintiff

§2517.2.2 Prior Actions for Invasion of Privacy

§2520 INTRUSION INTO PRIVATE AFFAIRS — PLAINTIFF TO DEFENDANT

§2521 Fact of Intrusion

§2522 Reasonable Expectation of Privacy

§2523 Intrusion as Highly Offensive to a Reasonable Person

§2525 INTRUSION INTO PRIVATE AFFAIRS — DEFENDANT TO PLAINTIFF

§2526 Fact of Intrusion

§2527 Reasonable Expectation of Privacy

§2528 Intrusion as Highly Offensive to a Reasonable Person

§2530 PUBLIC DISCLOSURE OF PRIVATE FACTS — PLAINTIFF TO DEFENDANT

§2531 Fact of Disclosure

§2532 Matter Disclosed as “Private Fact”

§2533 Disclosure Offensive to a Reasonable Person

§2534 Disclosure Regarding Matter of Legitimate Public Concern

§2535 PUBLIC DISCLOSURE OF PRIVATE FACTS — DEFENDANT TO PLAINTIFF

§2536 Fact of Disclosure

§2537 Matter Disclosed as “Private Fact”

§2538 Disclosure Offensive to a Reasonable Person

§2539 Disclosure Regarding Matter of Legitimate Public Concern

§2540 HOLDING PLAINTIFF UP TO FALSE LIGHT IN THE PUBLIC EYE — PLAINTIFF TO DEFENDANT

§2541 Giving Publicity to a Matter Concerning Plaintiff

§2542 False Characteristics, Conduct or Belief

§2542.1 False Light Requiring Reference to Extrinsic Facts

§2543 Disclosure Offensive to a Reasonable Person

§2544 Knowledge or Reckless Disregard of Falsity

§2545 HOLDING PLAINTIFF UP TO FALSE LIGHT IN THE PUBLIC EYE —DEFENDANT TO PLAINTIFF

§2546 Giving Publicity to a Matter Concerning Plaintiff

§2547 False Characteristics, Conduct or Belief

§2547.1 False Light Requiring Reference to Extrinsic Facts

§2548 Disclosure Offensive to a Reasonable Person

§2549 Knowledge or Reckless Disregard of Falsity

DISCOVERY COLLECTION 25-2

§2550 APPROPRIATION OF NAME OR LIKENESS — PLAINTIFF TO DEFENDANT

§2551 Fact of Appropriation

§2552 Publication of Matters of Public Interest

§2560 APPROPRIATION OF NAME OR LIKENESS — DEFENDANT TO PLAINTIFF

§2561 Fact of Appropriation

§2562 Publication of Matters of Public Interest

§2570 DAMAGES IN INVASION OF PRIVACY CASES

§2571 Plaintiff to Defendant

§2571.1 Damage to Reputation

§2571.2 Economic Losses

§2571.3 Loss of Goodwill

§2571.4 Emotional Distress Damages

§2571.5 Punitive Damages

§2572 Defendant to Plaintiff

§2572.1 Damage to Reputation

§2572.2 Economic Losses

§2572.3 Loss of Goodwill

§2572.4 Emotional Distress Damages

§2572.5 Punitive Damages

§2580 DEFENSES TO INVASION OF PRIVACY CLAIMS — PLAINTIFF TO DEFENDANT

§2581 Absolute Privilege

§2581.1 Statements Made in the Proper Discharge of Official Duty

§2581.2 Litigation Privilege

§2581.3 Statements Made in the Course of Legislative Proceeding

§2581.4 Privilege for Statements Made in the Course of Official Proceedings Authorized by Law

§2581.5 Report of Official Proceeding

§2582 Qualified Privilege

§2583 Public Interest Defense

§2583.1 Plaintiff as a “Public Person”

§2583.2 Publicity Resulting From Public Event

§2584 Defenses in False Light Invasion of Privacy Cases

§2585 Constitutional Limitations on Recovery

§2585.1 Public Official Plaintiff

§2585.2 Public Figure Plaintiff

§2585.3 Matters of Public Concern

§2586 Truth as a Defense in False Light Cases

§2587 Retraction Under Retraction Statutes

§2590 DEFENSES TO INVASION OF PRIVACY CLAIMS — DEFENDANT TO PLAINTIFF

§2591 Absolute Privilege

§2591.1 Statements Made in the Proper Discharge of Official Duty

§2591.2 Litigation Privilege

§2591.3 Statements Made in the Course of Legislative Proceeding

§2591.4 Privilege for Statements Made in the Course of Official Proceedings Authorized by Law

§2591.5 Report of Official Proceeding

§2592 Qualified Privilege

§2593 Public Interest Defense

§2593.1 Plaintiff as a “Public Person”

§2593.2 Publicity Resulting From Public Event

§2594 Defenses in False Light Invasion of Privacy Cases

§2595 Constitutional Limitations on Recovery

§2595.1 Public Official Plaintiff

§2595.2 Public Figure Plaintiff

§2595.3 Matters of Public Concern

§2596 Truth as a Defense in False Light Cases

§2597 Retraction Under Retraction Statutes

APPENDIX

25-3 INVASION OF PRIVACY §2515

§2500 INTRODUCTION

As most practitioners are aware, both the common law and many state constitutions recognize privacy as among the fundamental personal

rights. For this reason, the law in many states recognizes invasion of privacy as a tort that is separate and distinct from the tort of defamation.

It has been observed that the right of privacy concerns one’s peace of mind, while the right of freedom from defamation concerns one’s rep-

utation. Accordingly, where the elements of invasion of privacy are met, the plaintiff may recover even if the elements of defamation cannot

be established. (See, e.g., Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 86.) Indeed, tort liability for invasion

of privacy can provide a remedy in situations in which the civil action for defamation would not lie by virtue of the defense of truth. (See

discussion and cased cited in 5 Witkin, Summary of California Law (10th ed.) Torts, §651.)

Notwithstanding that the tort of invasion of privacy is conceptually distinct from that of defamation, certain observations regarding the

relationship between the two torts should be made. The first of these is that while the torts are conceptually distinct, the damages awardable

may nevertheless be the same and thus, while an action for defamation and invasion of privacy may often be based upon the same conduct,

the plaintiff can recover only once for the same elements of damage.

Moreover, and again notwithstanding the fact that liability for invasion of privacy is conceptually distinct from defamation, the same public

interest in the dissemination of information that supports absolute, qualified, and constitutional privileges in the defamation context may also

apply in invasion of privacy cases. This is especially true where the invasion of privacy is alleged to have exposed the plaintiff to a false light

in the public eye. For this reason, many of the same defensive concepts that are discussed in the chapter on defamation apply to invasion of

privacy cases, and therefore receive treatment in this chapter as well.

Finally, it should be noted that, in numerous instances, statutory provisions provide redress for various invasions of privacy and these

statutes may also be applicable in a given factual context. Accordingly, an appendix of the statutory provisions that also address the right of

privacy is included at the end of this chapter.

§2510 ELEMENTS OF PLAINTIFF’S CAUSE OF ACTION

§2511 Intrusion into Private Affairs

To state a cause of action for invasion of privacy based upon intrusion into private matters, the plaintiff must plead and prove (1) intrusion

into a private place, conversation or matter, which is (2) highly offensive to a reasonable person. (See Restatement 2d, Torts § 652B.)

§2512 Public Disclosure of Private Facts

To state a cause of action for invasion of privacy based upon public disclosure of private facts, the plaintiff must plead and prove (1) the

public disclosure; (2) the public disclosure is of a private fact; (3) the public disclosure is offensive to a reasonable person; and (4) the public

disclosure does not relate to a matter of legitimate public concern. Each of the foregoing elements is the subject of interrogatories set forth

in the sections that follow.

§2513 Holding Plaintiff Up to False Light in the Public Eye

In order to state a cause of action for invasion of privacy by holding the plaintiff in a false light in the public eye, the plaintiff must show

that the defendant (1) gave publicity to a matter concerning another, which (2) held the plaintiff in a false light by attributing to him character-

istics, conduct or beliefs that were false, where (3) the false light in which the plaintiff was placed would be highly offensive to a reasonable

person, and that (4) defendant acted with knowledge or reckless disregard as to the false light in which the plaintiff would be placed. (See

Restatement 2d, Torts § 652E.) It is to be noted that in many instances liability for this branch of invasion of privacy overlaps liability for

defamation, and the courts have held that many of the same defenses are applicable. The elements of this type of invasion of privacy, as well

as the applicable defenses, are examined in the sections that follow.

§2514 Appropriation of Name or Likeness

One who appropriates to his own use or benefit the name or likeness of another is subject to liability for invasion of privacy. (Restate-

ment 2d, Torts § 652C.) This branch of invasion of privacy protects both the individual’s personal feelings when his/her likeness or name is

appropriated, as well as his/her property interest in a right of “publicity.” (See Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536.) As

with other branches of liability for invasion of privacy, the protection of matters of public concern and public interest serve in appropriate

instances to limit liability for the tort. The elements of the prima facie case and relevant defenses are the subject of the interrogatories set

forth in the sections that follow.

§2515 Defenses in Invasion of Privacy Cases

As noted above, conduct that gives rise to invasion of privacy may, but need not necessarily, give rise to an action of defamation. Thus,

certain of the public policy interests that support absolute, qualified and constitutional privileges in defamation cases can apply in invasion

of privacy cases. For this reason, certain of these defenses are analyzed in the sections that follow.

At the same time, in many instances the facts that give rise to liability for invasion of privacy would be insufficient to support a cause

of action for defamation; an example is where private facts regarding a plaintiff are publicized but such facts are true. Accordingly, certain

defenses available in defamation cases, e.g., truth, are not applicable to invasion of privacy cases, except as to that form of invasion of pri-

vacy that consists of holding the plaintiff in a false light in the public eye. For present purposes, it suffices to note that this chapter contains

interrogatories pertaining to absolute, qualified, and constitutional privilege for use by defendants when such privileges apply to invasion of

privacy claims.