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Intrusion Upon Seclusion

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.
The first branch of privacy, intrusion upon seclusion, protects an individual from
the intentional invasion of solitude or seclusion of another through either
physical or nonphysical means, such as eavesdropping, peeping through
windows, or surreptitiously opening another's mail.
The second branch, appropriation or the right of publicity lends protection to
another's name or likeness. Publication of private facts, the third branch, involves
preserving the right of an individual to be free from the publication of true facts
that the common law regards as private and, essentially, nobody's business. The
last branch of privacy protects an individual from being placed in a false light in
the public eye.
A. The form of invasion of privacy covered by this Section does not depend
upon any publicity given to the person whose interest is invaded or to his
affairs. It consists solely of an intentional interference with his interest in
solitude or seclusion, either as to his person or as to his private affairs or
concerns, of a kind that would be highly offensive to a reasonable man.
B. The invasion may be by physical intrusion into a place in which the plaintiff
has secluded himself, as when the defendant forces his way into the
plaintiff's room in a hotel or insists over the plaintiff's objection in entering
his home. It may also be by the use of the defendant's senses, with or
without mechanical aids, to oversee or overhear the plaintiff's private
affairs, as by looking into his upstairs windows with binoculars or tapping
his telephone wires. It may be by some other form of investigation or
examination into his private concerns, as by opening his private and
personal mail, searching his safe or his wallet, examining his private bank
account, or compelling him by a forged court order to permit an inspection
of his personal documents. The intrusion itself makes the defendant
subject to liability, even though there is no publication or other use of any
kind of the photograph or information outlined.

The tort includes physical intrusions into private places as well as listening or
looking, with or without mechanical aids, into the plaintiffs private affairs. Of
particular relevance to this appeal, is the observation that other non-physical
forms of investigation or examination into private concerns may be actionable.
These include opening private and personal mail or examining a private bank
account, even though there is no publication or other use of any kind of the
information obtained.
Generally speaking, to make out cause of action for intrusion upon seclusion, a
plaintiff must show
(i) an unauthorized intrusion;
(ii) that the intrusion was highly offensive to the reasonable person;
(iii) the matter intruded upon was private; and
(iv) the intrusion caused anguish and suffering.
The first element indicates that the tort focuses on the act of intrusion, as
opposed to dissemination or publication of information. The focus of the court in
determining whether this element is satisfied is on the type of interest involved
and not the place where the invasion occurs.
With regard to the second element, factors to be considered in determining
whether a particular action is highly offensive include the degree of intrusion, the
context, conduct and circumstances of the intrusion, the tort Prossers motives
and objectives and the expectations of those whose privacy is invaded.
In determining the third element, the plaintiff must establish that the expectation
of seclusion or solitude was objectively reasonable. The courts have adopted the
two-prong test used in the application of the Fourth Amendment of the United
States Constitution. The first step is demonstrating an actual subjective
expectation of privacy, and the second step asks if that expectation is objectively
The fourth element has received considerably less attention as anguish and
suffering are generally presumed once the first three elements have been
established. The key features of this cause of action are, first, that the
defendants conduct must be intentional, within which I would include reckless;

second that the defendant must have invaded, without lawful justification, the
plaintiffs private affairs or concerns; and third, that a reasonable person would
regard the invasion as highly offensive causing distress, humiliation or anguish....

2. Appropriation of Name or Likeness

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 his privacy.
A. The interest protected by the rule stated in this Section is the interest of
the individual in the exclusive use of his own identity, in so far as it is
represented by his name or likeness, and in so far as the use may be of
benefit to him or to others. Although the protection of his personal feelings
against mental distress is an important factor leading to a recognition of
the rule, the right created by it is in the nature of a property right, for the
exercise of which an exclusive license may be given to a third person,
which will entitle the licensee to maintain an action to protect it.
B. How invaded. The common form of invasion of privacy under the rule here
stated is the appropriation and use of the plaintiff's name or likeness to
advertise the defendant's business or product, or for some similar
commercial purpose. Apart from statute, however, the rule stated is not
limited to commercial appropriation. It applies also when the defendant
makes use of the plaintiff's name or likeness for his own purposes and
benefit, even though the use is not a commercial one, and even though
the benefit sought to be obtained is not a pecuniary one. Statutes in some
states have, however, limited the liability to commercial uses of the name
or likeness.

3. Publicity Given to Private Life

One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of his 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.

The form of invasion of the right of privacy covered in this Section

depends upon publicity given to the private life of the individual. "Publicity," as it
is used in this Section, differs from "publication," as that term is in connection
with liability for defamation. "Publication," in that sense, is a word of art, which
includes any communication by the defendant to a third person. "Publicity," on
the other hand, means that the matter is made public, by communicating it to
the public at large, or to so many persons that the matter must be regarded as
substantially certain to become one of public knowledge. The difference is not
one of the means of communication, which may be oral, written or by any other
means. It is one of a communication that reaches, or is sure to reach, the public.
Thus it is not an invasion of the right of privacy, within the rule stated in this
Section, to communicate a fact concerning the plaintiff's private life to a single
person or even to a small group of persons. On the other hand, any publication in
a newspaper or a magazine, even of small circulation, or in a handbill distributed
to a large number of persons, or any broadcast over the radio, or statement
made in an address to a large audience, is sufficient to give publicity within the
meaning of the term as it is used in this Section. The distinction, in other words,
is one between private and public communication.

4. Publication of Private Facts

In most states, you can be sued for publishing private facts about another
person, even if those facts are true. The term "private facts" refers to information
about someone's personal life that has not previously been revealed to the
public, that is not of legitimate public concern, and the publication of which
would be offensive to a reasonable person. For example, writing about a person's
HIV status, sexual orientation, or financial troubles could lead to liability for
publication of private facts. However, the law protects you when you publish
information that is newsworthy, regardless of whether someone else would like
you to keep that information private. In addition, the law protects you if you
publish information already exposed to the public eye and especially material
obtained from publicly available court records. Despite the law's substantial
protections for legitimate reporting on matters of public interest, it is a good
practice to obtain consent before publishing sensitive private information about
Only human beings, and not corporations or other organizations, can sue for
publication of private facts. Publication of private facts is a type of invasion of
privacy, and you cannot invade the privacy of a dead person. Therefore, an
estate cannot sue you for publishing private facts about a dead person, unless
your publication took place before the person in question died. Note, however,
that members of a dead person's family may be able to sue in their own right if
you disclose private facts that relate to them too.
A plaintiff must establish four elements to hold someone liable for publication of
private facts:
1. Public Disclosure: The disclosure of facts must be public. Another way of
saying this is that the defendant must "give publicity" to the fact or facts
in question.
2. Private Fact: The fact or facts disclosed must be private, and not
generally known.
3. Offensive to a Reasonable Person: Publication of the private facts in
question must be offensive to a reasonable person of ordinary sensibilities.

4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated

differently, the facts disclosed must not be a matter of legitimate public
Public Disclosure
A plaintiff bringing a publication of private facts claim must show that the
defendant made a public disclosure of the fact or facts in question. This means
communication to the public at large, or to so many people that the matter must
be regarded as likely to become public knowledge. As a general matter,
publication of information on a website or blog (or any other publicly available
platform on the Internet) will satisfy this element. On the other hand, it might not
be a public disclosure if you simply convey private information about someone in
an email to one or two other people, so long as it is understood that the
information is not meant for further dissemination to the public.
Private Fact
A plaintiff bringing a publication of private facts claim must show that the
defendant disclosed a private fact. This means pretty much what it sounds like. A
private fact is an intimate detail of one's private life that is not generally known.
Common examples of private facts include information about medical conditions,
sexual orientation and history, and financial status. It may also include things like
someone's social security or phone number, if that information is not ordinarily
publicly available. A plaintiff has no privacy interest with respect to a matter that
is already public. Thus, you cannot be held liable for discussing or republishing
information about someone that is already publicly available (e.g., found on the
Internet or in the newspaper).
In addition, you cannot be held liable for giving publicity to a matter that the
plaintiff leaves open to the public eye. For example, when the man who helped
stop an assassination attempt on President Ford sued two newspapers for
revealing that he was a homosexual, the court denied him relief, finding that his
sexual orientation and participation in gay community activities was already
widely known by hundreds of people in a variety of cities. The record showed
that, prior to the publication in question, the plaintiff had frequented gay bars,

participated in gay pride parades, and that his friendship with Harvey Milk (a
prominent gay figure) was well-known and publicized in gay newspapers. This, in
the court's view, was sufficient to establish that the plaintiff had left his sexual
orientation open to the public eye.
As the latter two cases suggest, a person's photograph or image can be a
"private fact," but generally not when it is captured in a public or semi-public
place. Therefore, you can generally publish photographs of an individual or
individuals taken in public places without liability for publication of private facts.
Note, however, that publishing photographs of other people, even if taken in
public, may result in liability for unauthorized use of name or likeness. See Using
the Name or Likeness of Another for details. And, if you intrude into a private
place in order to photograph or record someone, you could be held liable for
intrusion. See Gathering Private Information for details.
A plaintiff bringing a publication of private facts claim must show that, under the
circumstances, publishing the facts in question would have been highly offensive
to a reasonable person of ordinary sensibilities. The question is not whether the
plaintiff himself/herself found the public disclosure highly offensive, but whether
an ordinary person reflecting community mores would find it so. Thus, the law
does not give special solicitude to a plaintiff with a "thin skin." As the
Restatement of Torts explains:
Complete privacy does not exist in this world except in a desert, and anyone who
is not a hermit must expect and endure the ordinary incidents of the community
life of which he is a part. Thus he must expect the more or less casual
observation of his neighbors as to what he does, and that his comings and
goings and his ordinary daily activities, will be described in the press as a matter
of casual interest to others. The ordinary reasonable man does not take offense
at a report in a newspaper that he has returned from a visit, gone camping in the
woods or given a party at his house for his friends. Even minor and moderate
annoyance, as for example through public disclosure of the fact that the plaintiff
has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a
cause of action under the rule stated in this Section. It is only when the publicity

given to him is such that a reasonable person would feel justified in feeling
seriously aggrieved by it, that the cause of action arises.
Newsworthiness -- Matters of Legitimate Public Concern
Newsworthiness is ordinarily the most important issue in a publication of private
facts case. In many states, a plaintiff bringing a publication of private facts claim
must show affirmatively that the facts disclosed were not newsworthy -- i.e., they
were not a matter of legitimate public concern. In other states, the defendant
must raise newsworthiness as a defense. Many courts hold that publishers have
a constitutional privilege to publish truthful information on a matter of legitimate
public concern. In any event, you ordinarily cannot he held liable for disclosing
private facts about someone so long as those facts are of legitimate public
Defining what is a matter of legitimate public interest can be tricky. But, courts
generally are reluctant to second-guess the media, and they therefore take a
very broad view of newsworthiness. Courts have held that there is a legitimate
public interest in nearly all recent events, as well as in the private lives of
prominent figures such as movie stars, politicians, and professional athletes.
Thus, newsworthy publications include those "concerning homicide and other
crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires,
catastrophes of nature, a death from the use of narcotics, a rare disease, the
birth of a child to a twelve-year-old girl, the reappearance of one supposed to
have been murdered years ago, a report to the police concerning the escape of a
wild animal and many other similar matters of genuine, even if more or less
deplorable, popular appeal."
The passage of time might also affect whether a private fact is newsworthy. Facts
that might be considered newsworthy at the time of the event will not
necessarily remain so months or years later. This sometimes comes up with
information about past crimes. Some courts have held that information about an
individual's commission of a crime in the remote past is not a matter of
legitimate public concern when that individual has completely rehabilitated
himself/herself. However, other courts have rejected this view, so long as there is
some connection to a topic of continuing interest. Nevertheless, you may want to

think twice about publishing private information about someone who used to be
an important public figure, but who now has faded into obscurity.

Craig, John, Invasion of Privacy and Charter Values: The Common Law Tort
Awakens, 42 McGill L.J. 355 (1997)
Jones v. Tsige, 2012 ONCA 32
Katz v US, 389 US 347 (1967 - NOTE 2)
Quin, Landon, First Amendment and Speech-Based Torts: Recalibrating the
Balance, 66 UMLR 157 (2011)
Roe v. Cheyenne Mt. Conf. Resort, Inc., 124 F. (3d) 1221 (1997) and Evans v.
Detlefsen, 857 F. (2d) 330 (1988) NOTE 1.
Snyder v Phelps, 131 S. Ct. 1207 (2011)