- Privacy laws of the United States
United States privacy laws embody several different legal concepts. One is the "invasion of privacy", a
tortbased in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain. [US Legal Definitions [http://definitions.uslegal.com/i/invasion-of-privacy/] ] Public figures have less privacy, and this is an evolving area of law as it relates to the media.
The "right to privacy" include individuals' Constitutional rights against the government. These includes the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing. [Right to Privacy Law & Legal Definition [http://definitions.uslegal.com/r/right-to-privacy/] ]
Invasion of privacy tort law
Invasion of privacy is a commonly used
cause of actionin legal pleadings. In the United States, the development of the doctrine regarding this tort was largely spurred by an 1890 Harvard Law Reviewarticle written by Samuel D. Warren and Louis D. Brandeison "The Right of Privacy". Modern tort law includes four categories of invasion of privacy: [* William Prosser, Privacy, 48 Calif.L.Rev. 383 (1960).]
# Intrusion of
solitude- physical or electronic intrusion into one's private quarters.
# Public disclosure of private factsndash the dissemination of truthful private information which a reasonable person would find objectionable
# False light - the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
# Appropriationndash the unauthorized use of a person's name or likeness to obtain some benefits.
Intrusion of solitude and seclusion
Intrusion of solitude occurs where one person exposes another to unwarranted publicity. In a famous case from
1944, author Marjorie Kinnan Rawlingswas sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, "Cross Creek". ["Cason v. Baskin", 20 So. 2d 243 (Fla. 1944) (note: Baskin was Rawlings' married name).] The Florida Supreme Courtheld that a cause of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no actual damages.
Intrusion upon seclusion occurs when a perpetrator intentionally intrudes, physically, electronically, or otherwise, upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, by use of the perpetrator's physical senses or by electronic device or devices to oversee or overhear the person's private affairs, or by some other form of investigation, examination, or observation intrude upon a person's private matters if the intrusion would be highly offensive to a reasonable person. Hacking a computer is an example of intrusion upon privacy. [Invasion of Privacy, Intrusion Upon Seclusion [http://126.96.36.199/search?q=cache:aJ80Ko7cQ1gJ:www.cvc.sunysb.edu/334/ethics/Privacy] ] In determining whether intrusion has occurred, one of three main considerations may be involved:
expectation of privacy; whether there was an intrusion, invitation, or exceedance of invitation; or deception, misrepresentation, or fraud to gain admission. Intrusion is “an information-gathering, not a publication, tort…legal wrong occurs at the time of the intrusion. No publication is necessary.” [Privacy Torts, Intrusion [http://188.8.131.52/search?q=cache:oWiIIh18g4oJ:www.ibiblio.org/medialaw/JOMC164unit07(privacy).ppt+emotional+distress+false+light&hl=en&ct=clnk&cd=3&gl=us] ]
Restrictions against the invasion of privacy encompasses journalists as well::“The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.” [Dietemann v. Time Inc. (9th Cir. 1971)] [Privacy Torts, Section 9 [http://184.108.40.206/search?q=cache:oWiIIh18g4oJ:www.ibiblio.org/medialaw/JOMC164unit07(privacy).ppt+emotional+distress+false+light&hl=en&ct=clnk&cd=3&gl=us] ]
Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person [ [http://www.cas.okstate.edu/jb/faculty/senat/jb3163/privacytorts.html Common Law Privacy Torts] ] ."Unlike libel or slander, truth is not a defense for invasion of privacy." [Invasion of Privacy [http://220.127.116.11/search?q=cache:aJ80Ko7cQ1gJ:www.cvc.sunysb.edu/334/ethics/Privacy.html] ] Disclosure of private facts includes publishing or widespread dissemination of little-known, private facts that are non-newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public. [Privacy Torts, Disclosure of Private Facts [http://18.104.22.168/search?q=cache:oWiIIh18g4oJ:www.ibiblio.org/medialaw/JOMC164unit07(privacy).ppt+emotional+distress+false+light&hl=en&ct=clnk&cd=3&gl=us] ]
False light is a
legalterm that refers to a tortconcerning privacythat is similar to the tort of defamation. For example, the privacy laws in the United Statesinclude a non-public person's right to privacy from publicitywhich puts them in a false light to the public; which is balanced against the First Amendment right of free speech.
laws are "intended primarily to protect the plaintiff's mental or emotional well-being." [http://netlaw.samford.edu/Martin/AdvancedTorts/falselight.htm False Light] by Professor Edward C. Martin - Cumberland School of Law, Samford University] If a publicationof informationis false, then a tort of defamationmight have occurred. If that communicationis not technically false but is still misleadingthen a tort of false light might have occurred.
The specific elements of the Tort of false light vary considerably even among those
jurisdictions which do recognize this tort. Generally, these elements consist of the following:
#A publication by the
Defendantabout the Plaintiff;
#made with actual malice (very similar to that type required by New York Times v. Sullivan in "Defamation" cases);
#which places the Plaintiff in a false light; AND
#that would be highly offensive (i.e., embarrassing to
Appropriation of name or likeness
Although privacy is often a common-law tort, most states have enacted statutes that prohibit the use of a person’s name or image if used without consent for the commercial benefit of another person.Fact|date=April 2008
Appropriation of name or likeness occurs when a person uses the name or likeness of another person for personal gain or commercial advantage. Action for misappropriation of right of publicity protects a person against loss caused by appropriation of personal likeness for commercial exploitation. A person's exclusive rights to control his or her name and likeness to prevent others from exploiting without permission is protected in similar manner to a trademark action with the person's likeness, rather than the trademark, being the subject of the protection. [Invasion of Privacy, Appropriation of Name or Likeness [http://22.214.171.124/search?q=cache:aJ80Ko7cQ1gJ:www.cvc.sunysb.edu/334/ethics/Privacy.html] ]
Appropriation is the oldest recognized form of invasion of privacy involving the use of an individual’s name, likeness or identity without consent for purposes such as ads, fictional works, or products. [Privacy Torts, Appropriation [http://126.96.36.199/search?q=cache:oWiIIh18g4oJ:www.ibiblio.org/medialaw/JOMC164unit07(privacy).ppt+emotional+distress+false+light&hl=en&ct=clnk&cd=3&gl=us] ]
"The same actionndash appropriation —can violate either an individual’s right of privacy or right of publicity. Conceptually, however, the two rights differ." [Privacy Torts, Differences Between the Right of Privacy and the Right of Publicity [http://188.8.131.52/search?q=cache:oWiIIh18g4oJ:www.ibiblio.org/medialaw/JOMC164unit07(privacy).ppt+emotional+distress+false+light&hl=en&ct=clnk&cd=3&gl=us] ]
Constitutional right to privacy
There are Constitutional limits to the government's intrusion of individuals' right to privacy. This is true even when pursuing a public purpose such as exercising police powers or passing legislation. The Constitution, however, only protects against
state actors. Invasions of privacy by individuals can only be remedied with under the above private laws.
Fourth Amendment to the Constitution of the United Statesensures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
First Amendment provides a right to free assembly, breadthening privacy rights.
The Ninth Amendment declares that merely the fact that a right is not explicitly mentioned in the Constitution does not mean that the government can infringe on that right.
The Supreme Court recognizes the Fourteenth amendment as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in
Griswold v. Connecticut, a 1965 decision protecting married couple's rights to contraception. It was recognized again in 1973 Roe v. Wadewhich used the right to privacy to protect a woman's right to an abortion.
Cases restricting the right to privacy
It is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd amendment, the 4th amendment's search and seizure limits, and the 5th amendment's self-incrimination limit. [ [http://www.usconstitution.net/constnot.html#privacy Things That Are Not In the U.S. Constitution - The U.S. Constitution Online - USConstitution.net ] ] However, the word "privacy" is actually never used in the text of the
US Constitution, [ [http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html Charters of Freedom - The Declaration of Independence, The Constitution, The Bill of Rights ] ] or any of its amendments [ [http://www.archives.gov/national-archives-experience/charters/constitution_amendments_11-27.html Charters of Freedom - The Declaration of Independence, The Constitution, The Bill of Rights ] ] [ [http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html Charters of Freedom - The Declaration of Independence, The Constitution, The Bill of Rights ] ] and various court cases have set limits on privacy rights in the US.
In a unanimous 2005 ruling, the [http://www.courts.state.nh.us/supreme/index.htm Supreme Court of New Hampshire] ruled:"A generalized concern for personal privacy is insufficient to meet the state's burden of demonstrating the existence of a sufficiently compelling reason to prevent public access." The Court ruled that financial information people disclose in divorce cases is not entitled to sweeping privacy protections. The court said the right of access to court proceedings and records predates both the state and federal constitutions. The decision relied heavily on the New Hampshire Constitution, which says power comes from the people. "To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted," the Constitution says. [http://www.nh.gov/judiciary/supreme/opinions/2005/assoc145.htm The Associated Press v. New Hampshire (2005)] .
In "Davis v. Freedom of Information Commission", 259 Conn. 45 (2001) the Connecticut Supreme Court ruled that the Drivers Privacy Protection Act (DPPA) does not apply to other government agencies who receive personal information from the State Department of Motor Vehicles (DMV) in the course of their normal government functions. Therefore, records compiled by the office of the tax assessor, which were based on state motor vehicle records, were publicly accessible.
Excerpt of a ruling by Judge Kenneth Johnson, Indianapolis, Indiana, "The great public interest in the reporting, investigation and prosecution of child abuse trumps even the patient's interest in privileged communication with her physicians because, in the end, both the patient and the state are benefited by the disclosure," Johnson wrote.
In "Las Vegas Review v. Board of County Commissioners",
August 18, 2000, Nevada's highest court ruled that records showing the telephone numbers of incoming and outgoing calls on publicly owned cellular telephones are not confidential or private.
* [http://supreme.lp.findlaw.com/constitution/amendment01/19.html U.S. Constitution: First Amendment: Invasion of Privacy] via
* [http://www.floridabar.org/DIVCOM/PI/RHandbook01.nsf/1119bd38ae090a748525676f0053b606/dfc00ac22467b7f5852569cb004cbc2a "Invasion of Privacy and the Media: The Right "To Be Let Alone"]
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