Invasion of Privacy

Are you worried about how to present what may be personal yet newsworthy details in a news story? Do you have a question about other privacy claims, like intrusion upon seclusion and publication of private facts?

Almost every state recognizes some right of privacy under the law. Most state laws attempt to strike a balance between the individual’s right to privacy and the public interest in freedom of the press.

The two primary types of invasion of privacy actions are intrusion upon seclusion and publication of private facts. You can also be liable for portraying someone in a false light, misappropriating their image or likeness, violating their right of publicity, or even for fraud or trespass over gathering the news.

Consent and newsworthiness are defenses against privacy claims, but truth is usually not. Ask yourself some questions before printing private facts.

Recording of phone calls is strictly controlled by state laws.

Common questions

In two of the privacy torts -- publication of private facts and intrusion -- an element of offensiveness is required.

Generally, no. However, courts have held that a publisher can be held liable for printing information that on its face would alert a reasonably prudent publisher that the information is likely to harm the public. In the leading media negligence case, the U.S. Court of Appeals in Atlanta (11th Cir.) ruled that Soldier of Fortune Magazine could be held liable in a wrongful death action.

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False light is one of four categories that comprise the privacy torts. (Public disclosure of private facts, intrusion upon seclusion and misappropriation represent the other three.)

In some states, you may be sued for the dissemination of intimate information about a person, even if true, under the privacy tort of public disclosure of private facts, sometimes referred to as the embarrassing-facts tort or private-facts tort.

Unlike the other three privacy torts, intrusion on seclusion (like the tort of trespass) is a tort of information gathering, not one based on the actual information that is published. Intrusion is said to be an intentional physical, electronic or mechanical invasion of a person’s solitude or seclusion that would be highly offensive to a reasonable person.

The fourth category of privacy torts is misappropriation. A person is liable for invasion of privacy if he or she uses the name or likeness of another for commercial purposes without permission. The issue usually arises when the name or photograph of a famous person is used without consent in an advertisement or other promotional activity.   

Sometimes the subjects of publications claim emotional distress as a separate tort independent from defamation or invasion of privacy. Courts have been reluctant, however, to recognize liability for the intangible harm of emotional distress, though they do occasionally do so where outrageous conduct by the media is thought to cause severe anxiety in private persons.

At first, the question of whether to tape record conduct or conversations seems like a matter of personal preference. Some information gatherers see taping as an indispensable tool, while others don’t like the formality or extra burden it may impose.

However, there are important questions of law that must be addressed first. And most often, what you want to record and where will likely dictate the legal limits of the activity.

Recording in public

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