Invasion of Privacy

• Author: Kevin R. Culhane
• Pages: 395-453

25-395

Chapter 25

Invasion of Privacy

§2500 Introduction

§2510 Elements of Plaintiff’s Cause of Action

§2520 Intrusion Into Private Affairs — Plaintiff to Defendant

§2525 Intrusion Into Private Affairs — Defendant to Plaintiff

§2530 Public Disclosure of Private Facts — Plaintiff to Defendant

§2535 Public Disclosure of Private Facts — Defendant to Plaintiff

§2540 Holding Plaintiff Up to False Light in the Public Eye — Plaintiff to Defendant

§2545 Holding Plaintiff Up to False Light in the Public Eye —Defendant to Plaintiff

§2550 Appropriation of Name or Likeness — Plaintiff to Defendant

§2560 Appropriation of Name or Likeness — Defendant to Plaintiff

§2570 Damages in Invasion of Privacy Cases

§2580 Defenses to Invasion of Privacy Claims — Plaintiff to Defendant

§2590 Defenses to Invasion of Privacy Claims — Defendant to Plaintiff

§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

Model InterrogatorIes 25-396

§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

§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

25-397 InVasIon of prIVacy §2500

§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

§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 reputation. 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 inva-

sion 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 obser-

vations 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 consti-

tutional 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