A primer on invasion of privacy

The question of when the coverage and reporting of news becomes an invasion of privacy is a difficult one, especially for photographers and videographers.

Reporting news stories in a way that serves and informs the public will often entail publicizing facts or displaying images that will embarrass or anger someone.

To make privacy matters even more difficult for journalists, courts constantly redefine what is private based upon interpretations of the elusive legal standard of a “reasonable expectation of privacy.”

The California Supreme Court held in 1999 that even an employee who knows a conversation in an open office space will be overheard by coworkers can pursue an invasion of privacy claim if that conversation is recorded by a reporter’s hidden camera. The court rejected the notion of privacy as an “all-or-nothing” concept and described an “expectation of limited privacy.” (Sanders v. American Broadcasting Cos., Inc., 978 P.2d 67 (Cal. 1999))

The media can also be on the losing end of a multimillion-dollar verdict if a jury agrees that a news organization has omitted or played down facts that put a truthful statement in its proper context. In 2003, a Florida jury awarded $18 million to Joe Anderson, the owner of a road-paving company who sued over a Pensacola News Journal article that truthfully reported he had shot and killed his wife. However, the fact that an investigation determined that the death was a hunting accident was not mentioned until two sentences later, which Anderson said created a false impression that he murdered his wife. A midlevel appellate court overturned the verdict in 2006, but the case is now on appeal to the state supreme court.

The combination of a lack of clear definitions of privacy standards and an acceptance of gradations of privacy puts journalists in a dangerous position.

Under different circumstances, however, courts find the news media are justified in doing what their subjects may feel is invasive.

A federal district court in Oklahoma dismissed a private facts claim when the father of an Oklahoma Army National Guard soldier killed in Iraq sued when photographs of his son’s open casket were published. The court noted that the funeral was open to the public and the press and that the father chose to have an open casket placed where any attendee could walk up and see it. The U.S. Court of Appeals in Denver (10th Cir.) upheld the dismissal, finding that since the soldier’s family members “opened up the funeral scene to the public eye,” they could not assert any invasion of privacy claim. (Showler v. Harper’s Magazine Foundation,

The U.S. Court of Appeals in San Francisco (9th Cir.) dismissed a false claim from a Seattle public official who had been secretly videotaped by a reporter during her trip to a public administrators convention in Las Vegas. The reporter, whose report revealed that the plaintiff spent more time gambling and shopping than she did attending the conference, was not found to have acted with actual malice even though he testified that he wanted to “shock the public” by reporting a misuse of taxpayer money. (Harris v. City of Seattle, 152 Fed.Appx. 565 (9th Cir. 2005))

The invasion of another’s privacy is a “tort,” meaning a civil wrong against another that results in injury.

A privacy tort occurs when a person or entity breaches the duty to leave another person alone. When journalists intrude on a person’s privacy and cause emotional or monetary injury, they may be forced to pay damages.

Each state has developed its own privacy law, either through the common law, statutes, or both. The right to privacy is an evolving branch of the law, and in most jurisdictions many legal questions remain unsettled.

The tort of “invasion of privacy” is distinct from the constitutional right to privacy, which protects against invasions by the government, although journalists who act jointly with government officials have been held to violate a person’s constitutional privacy right. Journalists should also know that their conduct may lead to other tort claims, such as trespass or the intentional infliction of emotional distress.

The First Amendment places some limits on the application of privacy law to the media. It does not, however, immunize the media completely. To avoid lawsuits, journalists must know how the law in their jurisdiction balances the competing interests of the press and the public against the privacy interests of the subjects of reports.

Courts have recognized four major branches of privacy law: 1) unreasonable intrusion upon seclusion; 2) unreasonable revelation of private facts; 3) unreasonably placing another person in a false light before the public; and 4) misappropriation of a person’s name or likeness.

The facts of a particular case may implicate more than one branch of privacy law. Some states refuse to recognize one or more of the four torts; other states replace or supplement the common law with statutory privacy rights.

This guide provides a general explanation of each privacy tort and related causes of action. The state case law section summarizes privacy cases involving photography from federal and state courts throughout the country.

Although photography poses some unique problems in privacy law, in general the legal analysis for invasion of privacy through images parallels the analysis for invasions through words. A complete examination of the privacy law in every jurisdiction is beyond the scope of this guide. However, the introduction to each state summary notes which of the four privacy torts have been recognized in any context by the state.

Intrusion:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. 

Restatement (2nd) of Torts, § 652B.

Intrusion claims generally arise from the newsgathering process itself rather than from publication or dissemination. For this reason, intrusion is the privacy tort photographers should be most concerned with, since their actions in the field can create liability, even if none of their work is published.

The tort of intrusion is related to trespass, and there are three general types of intrusion claims: surreptitious surveillance, traditional trespass, and occasions when consent to enter a private area has been given and then exceeded (such as when a reporter uses deceptive techniques to gain access to certain areas).

Private Facts:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person; and (b) is not of legitimate concern to the public. 

Restatement (2nd) of Torts, § 652D.

Photographers should not be as immediately concerned with private facts claims as they should be with intrusion claims, since there will usually be editorial oversight about which photographs are published. However, intrusive or potentially intrusive photography tactics could create liability, particularly if photographs taken from private property without permission are published. Absent special circumstances involving crime victims and witnesses, photographs of almost anything visible in a public place do not give rise to actions for publication of private facts.

False Light:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. 

Restatement (2nd) of Torts, § 652E.

Photographs can lead to false light claims when improperly captioned or when images are used to illustrate stories that are not directly connected with the image itself (for example, a photograph of a thin woman taken for another purpose and later used to illustrate an article about bulimia). However, a photograph that accurately depicts a situation that occurs in public view will often not support a false light claim, even if the person pictured is offended by the image (for example, in a Massachusetts case, a man sued a newspaper for publishing a picture in which he can be seen standing in an unemployment line. Even though the photograph created the false impression that he was there to pick up an unemployment check, he could not recover because the photograph truthfully depicted events that occurred in a public place).

The facts supporting a false light claim will often give rise to a defamation claim as well, but while defamation seeks to redress the harm done to one’s reputation, false light seeks to redress emotional distress. Several states do not recognize false light as a means of recovery, and some states have not decided one way or the other.

Misappropriation:

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy. 

Restatement (2nd) of Torts, § 652C.

Misappropriation statutes usually have two purposes protecting ordinary individuals from the mental distress that can accompany the undesired commercial use of their name or image and protecting the property interest that celebrities cultivate in their identities. Usually, using a relevant photograph to illustrate a newsworthy article will not create liability, whereas using a celebrity’s image in an advertisement often will. However, newsworthiness is not always a defense to a misappropriation claim. The U.S. Supreme Court has ruled that a news broadcast showing the entirety of the 15-second act of a “human cannonball” could violate the man’s right to publicity, since the broadcast could take the commercial value out of his performance by allowing spectators to see it for free rather than requiring them to buy tickets. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

Because the use of a celebrity’s likeness in advertising may imply endorsement of a product or service, a celebrity whose likeness is used without consent may also have a claim under the federal Lanham Act, 15 U.S.C. § 1125(a), which prohibits false descriptions of products or their origins.