Almost every state recognizes some right of privacy, either by statute or under common law — the traditional court-made law that U.S. courts adopted long ago from the English standards. Most state laws attempt to strike a balance between the individual’s right to privacy and the public interest in freedom of the press. However, these rights often clash.
The concept of a right to privacy was first articulated in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren. It took U.S. courts 15 more years to recognize it. The Georgia Supreme Court was the first to do so in Pavesich v. New England Life Insurance Co.,1 a case involving the use of an individual’s photograph in a newspaper advertisement without his permission.
Invasion of privacy is considered a personal tort, aimed at protecting the individual’s feelings — feelings often articulated by courts as “reasonable expectations of privacy.” Corporations ordinarily cannot claim a right of privacy, and surviving heirs generally cannot file suit on behalf of a decedent.2
Public figures have a limited claim to a right of privacy. Past and present government officials, political candidates, entertainers and sports figures are generally considered to be public figures. They are said to have exposed themselves to scrutiny voluntarily and to have waived their right of privacy, at least in matters that might have an impact on their ability to perform their public duties.
Although private individuals usually can claim the right to be left alone, that right is not absolute. For example, if a person who is normally not considered a public figure is thrust into the spotlight because of her participation in a newsworthy event, her claims of a right of privacy may be limited.
A right of privacy can be violated by any means of communication, including spoken words. This tort is usually divided into four categories: intrusion, publication of private facts, false light and misappropriation.
Privacy is invaded when one intentionally intrudes, physically or otherwise, upon a person’s solitude or into his private area or affairs.
Intrusion claims against the media often center on some aspect of the newsgathering process. This tort may involve the wrongful use of recording devices, cameras or other intrusive equipment. Trespass also can be a form of intrusion. Reporters should be aware that, in addition to liability for tortious invasions of privacy, anti-paparazzi laws also may create statutory liability, sometimes both civil and criminal, for newsgathering that involves trespass or harassment. California enacted such a law in 1998, and the U.S. Congress considered a similar bill in 1999.3
Because the basis of an intrusion claim is the offensive prying into the private domain of another and not any subsequent publicity given to that person or his or her private affairs, an actionable claim for intrusion may arise whether or not a news story is published or aired. For example, the leading legal guide on the accepted definitions of torts (known as the Restatement (Second) of Torts) lists the following scenario as an example of a highly offensive intrusion for which the reporter would be subject to liability: “A, a woman, is sick in a hospital with a rare disease that arouses public curiosity. B, a newspaper reporter, calls her on the telephone and asks for an interview, but she refuses to see him. B then goes to the hospital, enters A’s room and over her objection takes her photograph. B has invaded A’s privacy,” regardless of whether B ever publishes the photograph.4
The California Supreme Court has held that audio and video recording of rescue efforts at an interstate accident scene would not constitute intrusion, but taping the same accident victims once they have been moved to a rescue helicopter could be considered an invasion of privacy.5
1. Pavesich v. New England Life Insurance Co., 50 S.E. 68 (Ga. 1905).
2. But see, e.g., Reid v. Pierce County, 961 P.2d 333 (Wash. 1998) (finding protectable privacy interest held by relatives of people whose autopsy photographs were distributed in the community).
3. Cal. Civ. Code § 1708.8 (1998); H.R. 97, 106th Cong. (1st Sess. 1999).
4. Restatement (Second) of Torts § 652B cmt. b, illus. 1 (2010).
5. See Shulman v. Group W Productions, Inc., 955 P.2d 469 (Cal. 1998).