California Entertainment, IP & Privacy Lawyer – The “Four Privacy Torts” discussed by Attorney Steve®
California law protects individuals from privacy intrusions on a number of different fronts. Essentially, there are 4 main torts dealing with the right of privacy in California. This blog provides a general legal overview of these and their respective jury instructions. If you need a civil litigation attorney, contact us at the email on the right side of the page or call us at the number below.
The California constitution is clear that there is a right to privacy:
ARTICLE I DECLARATION OF RIGHTS [SECTION 1 – SEC. 32] | ( Article 1 adopted 1879. )
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
(a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge the liberty of speech or press.
So this section recognizes PRIVACY but also FREE PRESS. This is important to bear in mind when reviewing these torts.
The California Office of the Attorney General lists some of the California privacy laws.
4 separate Torts recognized in California
Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633 “Seventy years after Warren and Brandeis proposed a right to privacy, Dean William L. Prosser analyzed the case law development of the invasion of privacy tort, distilling four distinct kinds of activities violating the privacy protection and giving rise to tort liability: (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person's name or likeness. (Prosser, Privacy (1960) 48 Cal.L.Rev. 381, 389.) Prosser's classification was adopted by the Restatement Second of Torts in sections 652A-652E. California common law has generally followed Prosser's classification of privacy interests as embodied in the Restatement. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 580-594, pp. 674-693.)”
Intrusion on Seclusion and Solitude (“Private Affairs”)
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CACI 1800. Intrusion Into Private Affairs [ Name of plaintiff ] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [ name of plaintiff] must prove all of the following: 1. That [ name of plaintiff] had a reasonable expectation of privacy in [ specify place or other circumstance]; 2. That [ name of defendant] intentionally intruded in [ specify place or other circumstance ]; 3. That [ name of defendant]'s intrusion would be highly offensive to a reasonable person; 4. That [ name of plaintiff] was harmed; and 5. That [ name of defendant]'s conduct was a substantial factor in causing [ name of plaintiff]'s harm. In deciding whether [ name of plaintiff] had a reasonable expectation of privacy in [ specify place or other circumstance], you should consider, among other factors, the following: (a) The identity of [ name of defendant] ; (b) The extent to which other persons had access to [ specify place or other circumstance ] and could see or hear [name of plaintiff ]; and (c) The means by which the intrusion occurred. In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following: (a) The extent of the intrusion; (b) [ Name of defendant]'s motives and goals; and (c) The setting in which the intrusion occurred.
- Drones flying into your backyard and taking a video of a woman in a bikini or other private events (especially below 400 feet) might violate this section.
- Hulk Hogan also had a claim (and got a $1115,000,000 judgment) for Gawker.com posting a video of him having sex (taped without his knowledge) and posting a clip on the internet. After they would not take down the video, they were sued leading to a very large judgment. Last I checked the case was on appeal.
- Another type of privacy intrusion can be found in California's porn revenge law. Posting intimate sexual details of an ex-wife, spouse, boyfriend or girlfriend (and posting a video that was not known to be taken) can raise other serious legal issues. Contact us for more information.
Upskirt Videos and Photographs
Another interesting area of the law is what's called “upskirt” video and photos. This is where a woman is out in public and someone with a video camera or iphone snaps a photo of a woman between her legs (perhaps they are wearing panties, perhaps they are not). Is this legal? The woman is being shot in the public (which normally there is not a reasonable expectation of privacy), but yet I would assume many women (or even men could be the subject of these types of photos) would expect some privacy and decency in this area. But is it against the law to take these photos? To post these photos online? To commercialize these photos? Here are a few cases that have discussed this legal issue:
- New York says no legal violation if the woman is wearing panties
- Nordstrom denies illegal upskirt in Tennessee
- Ex-teacher shot upskirt videos
- Port Wentworth Upskirt litigation
- The upskirt case settled for $660,000
If you were the victim oir subject of an illegal upskirt photo or video even if it was not posted on the internet, call us to discuss your legal rights. You may be entitled to compensation for an invasion or privacy. We consider California and Arizona cases only.
Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 “More than 100 years ago, Louis Brandeis and Samuel Warren complained that the press, armed with the then recent invention of “instantaneous photographs” and under the influence of new “business methods,” was “overstepping in every direction the obvious bounds of propriety and of decency.” (Warren & Brandeis, The Right to Privacy (1890) 4 Harv. L.Rev. 193, 195-196 (hereafter Brandeis).) Even more ominously, they noted the “numerous mechanical devices” that “threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.' ” (Id. at p. 195.) Today, of course, the newspapers of 1890 have been joined by the electronic media; today, a vast number of books, journals, television and radio stations, cable channels and Internet content sources all compete to satisfy our thirst for knowledge and our need for news of political, economic and cultural events-as well as our love of gossip, our curiosity about the private lives of others, and “that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors.” (Id. at p. 196.) Moreover, the “devices” available for recording and transmitting what would otherwise be private have multiplied and improved in ways the 19th century could hardly imagine” The Court also noted: Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an “invasion of privacy.” It encompasses unconsented-to physical intrusion into the home, hospital room or [18 Cal. 4th 231] other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. (See Rest.2d Torts, § 652B, com. b., pp. 378-379, and illustrations.) It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity. “[A] measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversations may be overheard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant.” (Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser (1964) 39 N.Y.U. L.Rev. 962, 973-974, fn. omitted.)
Despite its conceptual centrality, the intrusion tort has received less judicial attention than the private facts tort, and its parameters are less clearly defined. The leading California decision is Miller v. National Broadcasting Co.. Miller, which like the present case involved a news organization's videotaping the work of emergency medical personnel, adopted the Restatement's formulation of the cause of action: “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.” (Rest.2d Torts, § 652B; Miller, supra, 187 Cal.App.3d at p. 1482.)
As stated in Miller and the Restatement, therefore, the action for intrusion has two elements:
(1) intrusion into a private place, conversation or matter,
(2) in a manner highly offensive to a reasonable person
“There is no liability for the examination of a public record concerning the plaintiff, … [or] for observing him or even taking his photograph while he is walking on the public highway” (Rest.2d Torts, § 652B, com. c., pp. 379-380; see, e.g., Aisenson v. American Broadcasting Co. (1990) 220 Cal. App. 3d 146, 162-163 [269 Cal. Rptr. 379] [where judge who was subject of news story was filmed from [18 Cal. 4th 232] public street as he walked from his home to his car, any invasion of privacy was “extremely de minimis”]; see also 1 McCarthy, The Rights of Publicity and Privacy (1997) § 5.10[A], pp. 5-111 to 5-113 [collecting cases].) To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. (Rest.2d Torts, § 652B, com. c., p. 379; see, e.g., PETA v. Bobby Berosini, Ltd. (1995) 111 Nev. 615 [895 P.2d 1269, 1280-1281] [plaintiff animal trainer had no expectation of seclusion or solitude in backstage preparation area]; Frankel v. Warwick Hotel (E.D.Pa. 1995) 881 F. Supp. 183, 188 [father's meddling in son's marriage not intrusion where there was no “physical or sensory penetration of a person's zone of seclusion”].
“Cameraman Cooke's mere presence at the accident scene and filming of the events occurring there cannot be deemed either a physical or sensory intrusion on plaintiffs' seclusion. Plaintiffs had no right of ownership or possession of the property where the rescue took place, nor any actual control of the premises. Nor could they have had a reasonable expectation that members of the media would be excluded or prevented from photographing the scene; for journalists to attend and record the scenes of accidents and rescues is in no way unusual or unexpected. (Cf. Pen. Code, §§ 409.5, subd. (d), 409.6, subd. (d) [exempting press representatives from certain emergency closure orders]”
Offensive vs. First Amendment
“We turn to the second element of the intrusion tort, offensiveness of the intrusion. In a widely followed passage, the Miller court explained that determining offensiveness requires consideration of all the circumstances of the intrusion, including its degree and setting and the intruder's “motives and objectives.” (Miller, supra, 187 Cal.App.3d at pp. 1483-1484; cited, e.g., in Hill, supra, 7 Cal.4th at p. 26; Sacramento County Deputy Sheriffs' Assn. v. County of Sacramento (1996) 51 Cal. App. 4th 1468, 1487 [59 Cal. Rptr. 2d 834]; Magenis v. Fisher Broadcasting, Inc. (1990) 103 Or.App. 555 [798 P.2d 1106, 1110]; and PETA v. Bobby Berosini, Ltd., supra, 895 P.2d at p. 1282.) The Miller court concluded that reasonable people could regard the camera crew's conduct in filming a man's emergency medical treatment in his home, without seeking or obtaining his or his wife's consent, as showing “a cavalier disregard for ordinary citizens' rights of privacy” and, hence, as highly offensive. (Miller, supra, 187 Cal.App.3d at p. 1484.) We agree with the Miller court that all the circumstances of an intrusion, including the motives or justification of the intruder, are pertinent to the offensiveness element. fn. 17 Motivation or justification becomes particularly important when the intrusion is by a member of the print or broadcast press in the pursuit of news material.”
“Although, as will be discussed more fully later, the First Amendment does not immunize the press from liability for torts or crimes committed in an effort to gather news (Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 669 [111 S. Ct. 2513, 2518, 115 L. Ed. 2d 586]; Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245, 249 (Dietemann); Miller, supra, 187 Cal.App.3d at p. 1492), the constitutional protection of the press does reflect the strong societal interest in effective and complete reporting of events, an interest that may-as a matter of tort law-justify an intrusion that would otherwise be considered offensive. While refusing to recognize a broad privilege in newsgathering against application of generally applicable laws, the United States Supreme Court has also observed that “without some protection for seeking out the news, freedom of the press could be eviscerated.” (Branzburg v. Hayes (1972) 408 U.S. 665, 681 [92 S. Ct. 2646, 2656, 33 L. Ed. 2d 626]; see also Nicholson v. McClatchy Newspapers (1986) 177 Cal. App. 3d 509, 519-520 [223 Cal. Rptr. 58].)
No special privilege for the Press
“Turning to the question of constitutional protection for newsgathering, one finds the decisional law reflects a general rule of nonprotection: the press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws. (Cohen v. Cowles Media Co., supra, 501 U.S. at pp. 669-670 [111 S.Ct. at pp. 2518-2519]; see Branzburg v. Hayes, supra, 408 U.S. at pp. 680-695 [92 S.Ct. at pp. 2656-2664] [extensive discussion, concluding press enjoys no special immunity from questioning [18 Cal. 4th 239] regarding sources with information on criminal activities under investigation by grand jury]; Pell v. Procunier (1974) 417 U.S. 817, 832-835 [94 S. Ct. 2800, 2809-2810, 41 L. Ed. 2d 495] [no special right of access to state prisoners for interviews]; Dietemann, supra, 449 F.2d at p. 249 [First Amendment is not a license for electronic intrusion; investigative journalism can be successfully practiced without secret recording]; Shevin v. Sunbeam Television Corp. (Fla. 1977) 351 So. 2d 723, 725-727.
“Defendants urge a rule more protective of press investigative activity. Specifically, they seek a holding that “when intrusion claims are brought in the context of newsgathering conduct, that conduct be deemed protected so long as (1) the information being gathered is about a matter of legitimate concern to the public and (2) the underlying conduct is lawful (i.e., was undertaken without fraud, trespass, etc.).” Neither tort law nor constitutional precedent and policy support such a broad privilege. Miller, Dietemann, and [18 Cal. 4th 241] Wolfson v. Lewis, supra, 924 F. Supp. 1413, were all cases in which the reporters and photographers were acting in pursuit of newsworthy material, but were held to have tortiously intruded on the plaintiffs' privacy because their conduct was highly offensive to a reasonable person, not because they had committed any independent crime or tort. fn. 19 (See also Baugh v. CBS, Inc. (N.D.Cal. 1993) 828 F. Supp. 745, 757 [intrusion tort does not require existence of technical trespass]; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App. 4th 1023, 1030-1032 [37 Cal. Rptr. 2d 431] [no newsgathering defense to claim of intentional infliction of emotional harm for television reporter's telling small children their neighbors had been killed while filming their shocked reaction, even if reporter hoped the children's reaction would be ” ‘newsworthy,' e.g., suitable to redeem a promise of ‘film at eleven' “]; Rest.2d Torts, § 652B, illus. 1, p. 379 [“A, a woman, is sick in a hospital room with a rare disease that arouses public curiosity. B, a newspaper reporter, calls her on the telephone and asks for an interview, but she refuses to see him. B then goes to the hospital, enters A's room and over her objection takes her photograph. B has invaded A's privacy.”
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False Light – California Jury Instruction CACI 1802
[ Name of plaintiff ] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [ name of plaintiff] must prove all of the following: 1. That [ name of defendant] publicized information or material that showed [ name of plaintiff] in a false light; 2. That the false light created by the publication would be highly offensive to a reasonable person in [ name of plaintiff]'s position; 3. [That there is clear and convincing evidence that [ name of defendant ] knew the publication would create a false impression about [ name of plaintiff] or acted with reckless disregard for the truth;] 3. [or] 3. [That [name of defendant] was negligent in determining the truth of the information or whether a false impression would be created by its publication;] 4. [That [ name of plaintiff] was harmed; and] 4. [or] 4. [That [name of plaintiff] sustained harm to [his/her] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and] 5. That [ name of defendant]'s conduct was a substantial factor in causing [ name of plaintiff]'s harm.
Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234 , 228 Cal.Rptr. 215; 721 P.2d 97
“An invasion of privacy by publicity that places the plaintiff in a false light in the public eye was first identified as a distinct tort in the late Dean Prosser's well-known 1960 law review article, Privacy (1960) 48 Cal.L.Rev. 383. Prosser considered over 300 cases decided in the 70 years since Warren and Brandeis had originated the concept of a legal right of privacy, and determined that the decisions revealed a complex of four independent torts. In addition to false light invasion of privacy, this now definitive formulation included intrusion upon one's solitude or seclusion, public disclosure of private facts and appropriation.”
“In order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a reasonable person. (Rest.2d Torts, § 652E, [42 Cal.3d 239] p. 394.) Although it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well. The substantial overlap between the two torts raised from the outset the question of the extent to which the restrictions and limitations on defamation actions would be applicable to actions for false light invasion of privacy.”
Public Disclosure of Private Facts
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California Jury Instructions – CACI 1801
1801 . Public Disclosure of Private Facts [ Name of plaintiff ] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [ name of plaintiff] must prove all of the following: 1. That [ name of defendant] publicized private information concerning [ name of plaintiff]; 2. That a reasonable person in [ name of plaintiff]'s position would consider the publicity highly offensive; 3. That [ name of defendant] knew, or acted with reckless disregard of the fact, that a reasonable person in [ name of plaintiff]'s position would consider the publicity highly offensive; 4. That the private information was not of legitimate public concern [or did not have a substantial connection to a matter of legitimate public concern]; 5. That [ name of plaintiff] was harmed; and 6. That [ name of defendant]'s conduct was a substantial factor in causing [ name of plaintiff]'s harm. In deciding whether the information was a matter of legitimate public concern, you should consider, among other factors, the following: (a) The social value of the information; (b) The extent of the intrusion into [ name of plaintiff]'s privacy; [and] (c) Whether [ name of plaintiff] consented to the publicity explicitly or by voluntarily seeking public attention or a public office; [and] (d) [ Insert other applicable factor]. [In deciding whether [ name of defendant] publicized the information, you should determine whether it was made public either by communicating it to the public at large or to so many people that the information was substantially certain to become public knowledge.] Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125
1. Appellants did not state a cause of action for invasion of privacy.
The right to privacy tort was recognized in 1890 based on the trend in tort law to extend protection to “‘the right of determining, ordinarily, to what extent [a person's] thoughts, sentiments, and emotions shall be communicated to others.'” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 23.) In other words, the tort protects “a ‘right “to be let alone.”‘” (Ibid.) In 1972, the right to privacy was added to the California Constitution by initiative. (Id. at p. 15.)
To state a claim for violation of the constitutional right of privacy, a party must establish
(1) a legally protected privacy interest;
(2) a reasonable expectation of privacy under the circumstances;
(3) a serious invasion of the privacy interest. (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338.)
Four distinct kinds of activities have been found to violate this privacy protection and give rise to tort liability. These activities are:
(1) intrusion into private matters;
(2) public disclosure of private facts;
(3) publicity placing a person in a false light;
(4) misappropriation of a person's name or likeness. Each of these four categories indentifies a distinct interest associated with an individual's control of the process or products of his or her personal life. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 24.)
However, to prevail on an invasion of privacy claim, the plaintiff must have conducted himself or herself in a manner consistent with an actual expectation of privacy. (Id. at p. 26.)
Here, the allegations involve a public disclosure of private facts. The elements of this tort are: ”
‘(1) public disclosure
(2) of a private fact
(3) which [172 Cal.App.4th 1130] would be offensive and objectionable to the reasonable person
(4) which is not of legitimate public concern.'”
See Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.) The absence of any one of these elements is a complete bar to liability. (Id. at pp. 214-215.)
Right of Publicity (can be deemed an invasion of piracy)
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The fourth privacy tort is known as the Right of Publicity. Under California law, this right applies to EVERYONE, not just celebrities. Our law firm has successfully resolved several right of publicity cases for very high profile clients and against very large Defendant organizations. There is both a common law and statutory right of publicity in California. Under the statutory section (Cal. Civil Code Section 3344) the prevailing party can seek attorney fees.
Jury instructions – CACI 1803 (note there are other jury instructions as well)
1803 . Appropriation of Name or Likeness—Essential Factual Elements [ Name of plaintiff ] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [ name of plaintiff] must prove all of the following: 1. That [ name of defendant] used [ name of plaintiff]'s name, likeness, or identity without [his/her] permission; 2. That [ name of defendant] gained a commercial bene?t [or some other advantage] by using [ name of plaintiff]'s name, likeness, or identity; 3. That [ name of plaintiff] was harmed; and 4. That [ name of defendant]'s conduct was a substantial factor in causing [ name of plaintiff]'s harm.
The First Amendment Defense
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According to Justia:
“Even if the elements are established, the First Amendment may require that the right to be protected from unauthorized publicity be balanced against the public interest in the dissemination of news and information. (See Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307].) In a closely related right-of-publicity claim, the California Supreme Court has held that an artist who is faced with a challenge to his or her work may raise as affirmative defense that the work is protected by the First Amendment because it contains signi?cant transformative elements or that the value of the work does not derive primarily from the celebrity's fame. ( Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797]; see CACI No. 1805, Aff?rmative Defense to Use or Appropriation of Name or Likeness—First Amendment (Comedy III) .) Therefore, if there is an issue of fact regarding a First Amendment balancing test, it most probably should be considered to be an affirmative defense. (Cf. Gionfriddo, supra, 94 Cal.App.4th at p. 414 [“Given the signi?cant public interest in this sport, plaintiffs can only prevail if they demonstrate a substantial competing interest.”].
Contact a California Privacy Rights Law Firm
If you feel your privacy rights are being violated, or you are being accused of violating someone else's privacy rights in California or Arizona, contact us to discuss our services. We have helped others whose name, image, and likeness (privacy) is being misappropriated without their consent. We have also prevailed on anti-SLAPP motions dealing with first amendment “newsworthy” defenses and “public affairs.” Call us at (877) 276-5084