Vol. 9, No. 1, Pg. 39. False Light Invasion of Privacy: A New Tort in Town?.

• Author: By the Hon. John L. Breeden Jr. and Douglas M. Zayicek

South Carolina Lawyer

1997.

Vol. 9, No. 1, Pg. 39.

False Light Invasion of Privacy: A New Tort in Town?

39False Light Invasion of Privacy: A New Tort in Town?By the Hon. John L. Breeden Jr. and Douglas M. ZayicekAlthough false light invasion of privacy is not a new tort, the appellate courts have never explicitly addressed whether it is recognized in South Carolina.

Anyone who owns the Eagles' Hotel California or Greatest Hits Volume 2 probably knows the song "New Kid in Town." The outro to that song goes:

There's a new kid in town. I don't want hear it . . . There's a new kid in town. I don't want hear it . . .

Replace "kid" with "tort" and it creates a colloquy between a plaintiff's lawyer and a defense lawyer. It isn't very often a new tort appears in the legal system. Although false light invasion of privacy is not a new tort, the appellate courts have never explicitly addressed whether it is recognized in South Carolina.

This article discusses the cognizability of false light as a cause of action, but does not address implementation details. Available defenses, constitutional malice requirements and other matters are therefore not discussed. Frankly, thinking about those things gives the authors a headache.

INVASION OF PRIVACY TORTS

There's talk on the street, it sounds so familiar . . .

The right of privacy may be loosely defined as the right of a person to be let alone and is a relatively new concept in the law.

Samuel D. Warren and Louis D. Brandeis first espoused a right of privacy in 1890. See Warren & Brandeis, The Right To Privacy, 4 Harv. L. Rev. 193 (1890). The Georgia Supreme Court was the first court to recognize a right of privacy in Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905).

Since Pavesich, the right of privacy has developed from one tort into four distinct causes of action. Those four causes of action are: Appropriation of Name or Likeness; Public Disclosure of Private Facts; Intrusion Upon Seclusion; and False Light. See Prosser and Keeton on Torts, Privacy, 5 ed., chp. 20 (1984), or Right of Privacy and Publicity, 77 C.J.S. 478, for a detailed discussion of the right of privacy.

FALSE LIGHT INVASION OF PRIVACY IN SOUTH CAROLINA

Great expectations, everybody is watchin' you . . .

In O'Shea v. Lesser, 308 S.C. 10, 416 S.E.2d 629 (1992) (quoting Meetze v. The Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956)), the South Carolina Supreme Court defined an actionable invasion of privacy 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." See also Swinton Creek Nursery v. Edisto Farm Credit, S.C. , S.E.2d (S.C. Ct. App. 1997) (Op. No. 2642); Snakenberg v. The Hartford, 299 S.C. 164, 383 S.E.2d 2 (S.C. Ct. App. 1989) (in which J. Bell gives a good overview of invasion of privacy causes of action in South Carolina). The Court has therefore expressly embraced the first three privacy causes of action listed above, but...