Invasion of Privacy Torts

Why This Matters

Privacy law sits at the heart of journalism ethics and legal liability. When you're tested on this material, you're not just being asked to recall definitions—you're being evaluated on your understanding of where the line falls between legitimate newsgathering and actionable invasion of privacy. These torts represent society's attempt to balance two competing values: the press's First Amendment role in informing the public and individuals' fundamental right to control information about themselves.

The four traditional privacy torts—intrusion, public disclosure of private facts, false light, and appropriation—each protect a different aspect of personal autonomy. Related concepts like trespass, wiretapping, and breach of confidentiality govern the methods journalists use to gather information. Don't just memorize the elements of each tort—know what type of harm each one addresses, what defenses apply, and how courts distinguish between them when facts overlap.

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The Four Traditional Privacy Torts

These four causes of action, first articulated by legal scholars William Prosser and Samuel Warren, form the foundation of American privacy law. Each protects a distinct privacy interest and requires different elements to prove.

Intrusion Upon Seclusion

• Unauthorized invasion of private space or solitude—can be physical (entering a home) or technological (hacking, using telephoto lenses)
• Reasonable expectation of privacy is the threshold question; public spaces generally offer no protection, but private areas within public buildings may qualify
• No publication required—unlike other privacy torts, the harm occurs at the moment of intrusion, making this especially relevant to newsgathering conduct

Public Disclosure of Private Facts

• Revealing true but private information that would be highly offensive to a reasonable person and is not newsworthy
• Newsworthiness defense is broad—courts give significant deference to editorial judgment about what the public needs to know
• Truth is not a defense (unlike defamation); the information must be private, not already in the public record

False Light

• Portraying someone in a misleading context that creates a false impression, even if no specific false statement is made
• Wide dissemination required—the portrayal must reach the public, and it must be highly offensive to a reasonable person
• Actual malice standard applies to public figures, requiring proof the defendant knew the portrayal was false or acted with reckless disregard

Appropriation of Name or Likeness

• Using someone's identity for commercial purposes without consent—includes name, image, voice, or other recognizable attributes
• Commercial use is key—news coverage and commentary are generally protected; advertisements and merchandise are not
• Consent must be clear and informed—implied or ambiguous consent often fails as a defense

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Economic Rights in Identity

These torts protect the commercial value of a person's identity, recognizing that fame and reputation have monetary worth that individuals should control.

Right of Publicity

• Controls commercial exploitation of identity—extends beyond the four traditional torts to protect the economic value of fame
• Applies especially to celebrities who have cultivated marketable personas; some states allow this right to survive death
• Infringement includes unauthorized endorsements, merchandise, and AI-generated likenesses that trade on someone's identity

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Newsgathering Methods and Legal Boundaries

These concepts govern how journalists obtain information, separate from what they publish. Liability can attach even if the story is never aired or printed.

Trespass

• Entering property without permission—applies to physical spaces and, increasingly, digital environments
• Consent from the property owner is required; consent from an employee or guest may not be sufficient
• Accompaniment liability can attach when journalists enter with police or other officials who themselves have lawful access

Wiretapping and Eavesdropping

• Intercepting private communications violates federal law (Wiretap Act) and most state statutes
• One-party vs. two-party consent—federal law and most states require only one party's consent, but twelve states require all-party consent
• Criminal and civil penalties apply; illegally obtained recordings may be inadmissible and can expose journalists to prosecution

Hidden Cameras and Surveillance

• Recording without knowledge raises both legal and ethical concerns depending on location and consent
• Public vs. private spaces—recording in truly public areas is generally legal, but private spaces within public buildings (restrooms, fitting rooms) are protected
• Editorial justification matters ethically even when recording is legal; deception should be a last resort for stories of significant public interest

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Confidential Relationships

When information is shared in trust, additional legal protections may apply beyond the traditional privacy torts.

Breach of Confidentiality

• Unauthorized disclosure from a trusted relationship—most commonly doctor-patient, attorney-client, or therapist-client
• Journalists rarely have direct liability but may face claims if they induce the breach or receive information they know was improperly disclosed
• Harm or damage must result—the breach alone isn't actionable without some demonstrable injury to the plaintiff

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Quick Reference Table

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Self-Check Questions

1. Which two privacy torts can result in liability even if the journalist never publishes anything? What distinguishes them from each other?

2. A magazine runs a photo of a private citizen at a political rally, but the caption falsely implies she supports a cause she actually opposes. Which tort applies, and what must she prove?

3. Compare the defenses available for public disclosure of private facts versus false light. Why might a plaintiff choose to plead one over the other?

4. A journalist secretly records a conversation with a source in California (a two-party consent state) and uses it in a story about government corruption. What legal exposure does the journalist face, and does the public interest in the story provide a defense?

5. Explain the difference between appropriation and right of publicity. If an FRQ presents a scenario involving a celebrity's image used in an advertisement without permission, which claim offers stronger remedies and why?