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Privacy Rights in the Digital Age

Privacy torts

by W. Wat Hopkins

Appropriation, intrusion, publication of private information, and false light invasion of privacy, the traditional torts for plaintiffs seeking damages for invasion of privacy.

Privacy law had its spiritual beginnings in 1890 when Harvard law professors Samuel Warren and Louis Brandeis, at Warren's instigation, published in the Harvard Law Review an article titled “The Right to Privacy.” It's difficult to exaggerate the significance of the article on the development of privacy law. Indeed, in the history of legal research on all topics, according to law professor Fred R. Shapiro, only one other law journal article has been cited more than “The Right to Privacy.” It is not clear why Professor Warren suggested that the two scholars write the article, but a common theory is that he was dissatisfied with the way his socially prominent family had been treated by the popular media in Boston.

While “The Right to Privacy” was a significant piece of legal literature, privacy law in the United States was slow in developing—many judges were skeptical of claims of psychological damage resulting from invasions of one's privacy. Without being able to make specific physical claims as to harm, plaintiffs in tort actions could not recover damages.

Another law journal article, this one by William Prosser, the dean of the University of California law school, helped break down some of the barriers that were preventing success by privacy plaintiffs. Dean Prosser researched privacy law for the second edition of The Restatement of the Law of Torts by the American Law Institute.

The Restatement seek to clarify and synthesize the common law in a particular area of law. Dean Prosser also published the results of his research in a law journal article titled “Privacy,” published in 1960 in the California Law Review. (Prosser's article is the forty-fifth most-cited article on Shapiro's list.)

In this landmark piece, Dean Prosser posited that there was not a single tort that could be classified as “invasion of privacy.” Instead, he wrote, there are four torts that fall under the privacy umbrella: appropriation, intrusion, the publication of private information, and false light invasion of privacy. The identification of these four torts has guided privacy law since.

Appropriation is the use of a person's name, image, or likeness, without permission, for commercial gain. A “use” might be a caricature or silhouette of an individual, a photograph, a description, or an imitation of a person's voice. The use must be designed to provide commercial gain for the user; that is, the purpose of the use is to make money rather than for the dissemination of information of public concern. Appropriation is often associated with celebrities, but the tort is not limited to people who are well known. Indeed, an early case, Roberson v. Rochester Folding Box Co. (64 N.E. 442 [NY, 1902]), involved the use of a photograph of a woman who was not a celebrity on boxes of flour. Much more recently, a Virginia man settled out of court with a company that used a photograph of him on a greeting card made to advertise the state fair.

The U.S. Supreme Court has not resolved a case that is purely appropriation but came close in the 1977 case Zacchini v. Scripps-Howard Broadcasting (433 U.S. 562). Hugo Zacchini, who performed as “The Human Cannonball,” successfully sued a television station for broadcasting his entire performance—which lasted only 15 seconds. The Court upheld the $25,000 verdict, even though the station did not broadcast the performance for commercial gain. The broadcast, however, posed a substantial threat, the Court held, to the economic value of the performance.

Appropriation was one of the first privacy torts to develop because it was, in large part, tied to property rights. Similarly, courts have recognized that individuals have a Right of Privacy; that is, people have a right to profit from images of themselves. An exception in the law allows the news media to circumvent appropriation suits. Courts have ruled that the media have only their content to sell and therefore they may use their own content—including photographs of individuals—for advertising purposes.

Intrusion is the one privacy tort that is unrelated to publication or publicity. It occurs when a place were a person has a reasonable expectation of privacy is physically invaded, often by the use of cameras or electronic listening devices.

Under common law, people in public places have no expectation of privacy. When those same people are in private places, however, the law protects their rights to be free from exposure to the outside world. Intrusion might involve the use of recording devices, the use of telephoto or infrared lenses, trespassing, or entering a private place under false pretenses. When journalists for Life magazine entered the home of self-proclaimed healer A. A. Dietmann, for example, passing themselves off as potential customers, a jury found their actions to be intrusive and, in Dietmann v. Time, Inc. (449 F.2d 245 [9th Cir., 1971]) awarded Dietmann $1,000 in damages.

The Supreme Court found a type of intrusion when journalists accompanied law enforcement officers onto private property in two cases. In Wilson v. Layne (526 U.S. 603 [1999)], a task force from various law enforcement agencies in the Washington, DC, area made a late-night raid into the home of Charles and Geraldine Wilson, thinking they might find Dominic Wilson, who was wanted by the task force. Dominic was not present, and the journalists watched as Charles was thrown to the floor and handcuffed, and Geraldine looked on in shock. The Court found for the Wilsons when they sued for invasion of privacy. The invasion occurred when the journalists entered the home, even though law enforcement officers allowed the entry.

Similarly, in Hanlan v. Berger [526 U.S. 808 (1999)], the Court reprimanded the officials for bringing the journalists along on a raid on a Montana ranch where they suspected that pesticides might be causing the deaths of eagles, which are protected as an endangered species.

The publication of private information is the tort most people think of when they hear the term “invasion of privacy.” It is the widespread publication of information that is private, and the publication of which is highly offensive to a reasonable person.

To win a private information case, therefore, a plaintiff must prove that the offensive material was, first, private. Nothing that occurs in public can be considered private. Similarly, nothing that appears on a public document, even if few people know about it, can be considered private. For example, the Supreme Court, in Cox Broadcasting Co. v. Cohn [420 U.S. 469 (1975)], ruled that a television station was not liable for publishing the identity of a rape victim because the name appeared on a public document.

The plaintiff must also prove that the private information was disseminated to a large audience, which is generally easy to prove if the material was published in a medium of widespread circulation, broadcast over the airwaves, or posted on the Internet.

Finally, a plaintiff must demonstrate that the material was not simply private but that its publication was highly offensive to a reasonable person. This is a highly subjective criterion, and its determination is based on the finding of a jury. Dorothy Barber, for example, won damages when Time magazine published a photograph of Barber in her hospital bed alongside a story identifying her as a “starving glutton.” Barber had a rare ailment that caused her to lose weight regardless of how much she ate.

A defense in a private information case is that the published information was a matter of public concern—that is, it was newsworthy. Even if the material is private, is widely disseminated, and is highly offensive to a reasonable person, if it is newsworthy, it is protected. The iconic example of the newsworthy defense came in the case of Hilda Bridges, who was taken hostage in her apartment by her estranged husband. When the abduction became known and police arrived, the husband forced Bridges to take off all her clothes, believing she would not attempt to flee if she were nude. The husband ended up shooting himself; police stormed the apartment, and Bridges did indeed flee. A photograph of her covering herself as best she could with a dish towel was published by the newspaper Today of Cocoa Beach, Florida. Bridges sued, but a judge, though expressing sympathy for Bridges, ruled that her story was newsworthy and therefore she could not win a private information case.

False light invasion of privacy occurs with the widespread publication of false information with actual malice, the publication of which is highly offensive to a reasonable person. False light resembles defamation, but the requirement in a false light case is simply that the published material places the plaintiff in a false light, not that the published material is defamatory. Indeed, false light cases have been won because of publications provided glowing reports about a plaintiff that were so greatly exaggerated that the plaintiff found them to be embarrassing, that is, highly offensive.

Because of its resemblance to defamation, plaintiffs have often filed false light claims in conjunction with defamation claims. For that reason, several states (North Carolina and Virginia are two) no longer recognize false light as a tort action. In addition, the Supreme Court, in order to prevent an end-run around defamation, requires all plaintiffs in false light claims to prove actual malice, that is, knowledge of falsity or reckless disregard for the truth. The case was Time, Inc. v. Hill [385 U.S. 374 (1967)].

The case began when James Hill and his family were held hostage in their home near Philadelphia by three escaped convicts in 1952. They were released unharmed, but the events received nationwide publicity and became the basis for Joseph Hayes's novel The Desperate Hours, which became a Broadway play and a movie starring Humphrey Bogart. Life magazine published a story about the events during tryouts for the play that indicated that the Hill events were the sole basis for the play, which was not true. The Hills also objected to the way their relationship with their captors was portrayed in the article.

The Hills sued. Even though it is generally not defamatory to be identified as victims of a crime, the Hills claimed that their portrayal in the magazine article was highly offensive and caused them severe embarrassment, thus the false light claim.They won at trial, but the Supreme Court overturned the verdict, holding that plaintiffs in false light cases are required to prove that the publication was made with actual malice, as defined by the Court in New York Times Co. v. Sullivan [376 U.S. 254 (1964)].

The continuing effectiveness of the classic Prosser torts has come under scrutiny, especially in a world where information can be disseminated instantly over the Internet. Also, scholars, attorneys, and jurists are beginning to examine the foundational premise of privacy law, that is, that if something occurs in public, it cannot be private. When a gaffe can be spread around the world, for example, in a matter of moments, and when that gaffe remains perpetually in the memory of the Internet, some scholars (Daniel Solove is one) are suggesting that an alternative to the traditional view of public and private actions should be considered.

Further Reading

1 

Glasser, Charles, ed. International Libel & Privacy Handbook. New York: Bloomberg Press, 2006.

2 

Prosser, William. “Privacy.” California Law Review 48 (1960): 383–423.

3 

Richards, Neil M. “The Limits of Tort Privacy.” Journal on Telecommunications & High Technology Law 9 (2011): 357–384.

4 

Solove, Daniel. The Future of Reputation: Gossip, Rumor and Privacy on the Internet. New Haven, CT: Yale University Press, 2007.

5 

Solove, Daniel J. “‘I've Got Nothing to Hide’ and Other Misunderstandings of Privacy.” San Diego Law Review 44 (2007): 745–772.

6 

Terilli, Samuel A., Jr., and Sigman Splichal, “Privacy Rights in an Open and Changing Society.” In Communication and the Law, edited by W. Wat Hopkins, 283–309.

7 

Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4 (1890): 193–220.

See also: Cox Broadcasting Co. v. Cohn, 420 U.S. 469 (1975); Invasion of Privacy; New York Times Co. v. Sullivan, Abernathy, et al., 376 U.S. 254; Privacy, Right of; Prosser, William Lloyd; The Right to Privacy; Time, Inc. v. Hill, 385 U.S. 374 (1967); Wilson v. Layne, 526 U.S. 603 (1999); Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977)

Citation Types

MLA 9th
Hopkins, W. Wat. "Privacy Torts." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0171.
APA 7th
Hopkins, W. W. (2016). Privacy torts. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Hopkins, W. Wat. "Privacy Torts." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.