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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?

From the First Amendment Handbook

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

What types of conduct are considered offensive?

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

Can I be held liable for injuries allegedly caused by information I published?

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.

More topics:

Getting it right, but in a "false light"

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.)

Publishing highly personal and embarrassing information about another, even if completely true

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.

Liability for intrusive or harassing newsgathering activities

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.

Using another person's name or photograph

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.   

Outrageous conduct and severe emotional distress in private people

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.

The legal limits of recording conduct and conversations

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

Recent news articles from our web site:

November 8, 2016 - International
Reporters Committee and 28 journalism groups oppose French global delisting order
May 19, 2016 - International
News organizations must unite with tech world on "right to be forgotten"
December 12, 2014
E.U. pushes "right to be forgotten" on U.S. search engines, claims limited effect on speech rights
March 21, 2014 - Illinois
Illinois Supreme Court strikes down eavesdropping law
February 12, 2014 - New Hampshire
New Hampshire Supreme Court reverses blogger's felony conviction for recording phone conversations
January 14, 2014 - Illinois
Illinois Supreme Court hears case over woman's jailing for recording public official
November 18, 2013
Supreme Court declines to hear challenge to NSA data collection
October 9, 2013 - Virginia
Company argues for release of Yelp posters' identity in Virginia appellate court
August 7, 2013 - New York
Photographer who took photos of neighbors wins legal battle in New York Supreme Court
June 19, 2013
AP chief points to chilling effect after Justice investigation

Recent articles from our quarterly magazine, The News Media & The Law:

Spring 2016
The finger and the football star
Fall 2015
Courts wrestle with defining newsworthiness in privacy cases
Winter 2015
The creeping "right to be forgotten"
Winter 2014
The NSA's shadow
Summer 2007
The privacy crackdown
Summer 2007
Misguided fears?
Summer 2007
How prevalent is identity theft?