In some states, a person’s right to privacy and the remedies available for violation of that right by another person or entity are defined in the state’s statutes. But in states that do not have a statute that provides for a right to privacy, a right to privacy may be recognized in the state’s common law—located in its court opinions, also known as case law.
Among these so-called common law states, the terms and definitions of privacy rights and claims vary from state to state. But common law claims for violation of a person’s right to privacy generally include one or more of the following:
Invasion of Privacy by Intrusion on Seclusion
To prove invasion of privacy by intrusion, there are three elements to establish: (1) an intentional intrusion, physically or otherwise, upon the solitude, seclusion, or private affairs or concerns of another; (2) that such intrusion would be highly offensive to a reasonable person; and (3) that the plaintiff suffered injury as a result of the intrusion.
Invasion of privacy is a willful tort that constitutes a legal injury. The basis of a cause of action for invasion of privacy is that the defendant has violated the plaintiff's rights to be left alone. This intrusion itself is actionable, and the plaintiff can receive at least nominal damages for that actionable intrusion without demonstrating physical harm.
Thus, a defendant’s improper intrusion of an area where the plaintiff had demonstrated an expectation of privacy is sufficient to invoke the plaintiff’s right to recover damages.
And if the plaintiff proves the defendant acted with malice, the plaintiff is entitled to recover exemplary damages from the defendant.
Invasion of Privacy by Public Disclosure of Private Facts
The elements of a claim for invasion of privacy by public disclosure of private facts are (1) the defendant publicized matters concerning the plaintiff’s personal life; (2) publication would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized is not of legitimate public concern.
There is generally a presumption under the law that the public has no legitimate interest in private, embarrassing facts about private citizens who are not public figures. The determination of whether a given matter is one of legitimate public concern must be made in the factual context of each particular case, considering the nature of the information and the public's legitimate interest in its disclosure. Although the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy.
For example, when a newspaper publishes information about a sexual assault, a logical nexus should exist between a rape victim's identity, or the private facts disclosed about the victim, and the general subject matter of the crime. Private details about a rape victim or the victim's identity may be irrelevant when the details are not uniquely crucial to the case, or when the publisher's public concern goes to a general, sociological issue.
Invasion of Privacy by Appropriation of Name or Likeness
The elements of a claim for invasion of privacy by misappropriation are: (1) the defendant appropriated the plaintiff’s name or likeness for the value associated with it; (2) the plaintiff can be identified from the publication; and (3) there was some advantage or benefit to the defendant.
The law generally does not protect a name per se, but the value associated with it. Liability for invasion of privacy arises only when the defendant appropriates for their own benefit the commercial standing, reputation, or other values associated with the plaintiff’s name. An appropriation generally becomes actionable when the name is used to advertise the defendant’s business or product, or for some similar commercial purpose.
Some states apply a very restrictive interpretation of the tort, and in some of those states courts have declined to recognize a right to privacy for corporations.
False Light
False light is a privacy tort (a wrongful act) that is similar to defamation (libel and slander) and generally requires the plaintiff to prove (1) the defendant recklessly published information about the plaintiff (spoken or written); (2) the information was highly offensive or embarrassing; and (3) the information portrayed the plaintiff in a false or misleading light.
Because of its similarity to and overlap with defamation claims, some states do not recognize false light as an independent tort claim or cause of action.
In Texas, the right to privacy is recognized under common law, which includes case law rather than specific statutes. Texas acknowledges several types of invasion of privacy claims, including intrusion on seclusion, public disclosure of private facts, appropriation of name or likeness, and false light. For intrusion on seclusion, a plaintiff must show intentional intrusion into their private affairs that would be highly offensive to a reasonable person and that caused injury. Public disclosure of private facts requires showing that private life details were publicized, it would be highly offensive to a reasonable person, and the facts are not of legitimate public concern. Appropriation of name or likeness involves the unauthorized use of a person's identity for benefit or advantage. False light involves publishing information that is highly offensive and portrays the person in a misleading manner. Texas courts have developed these privacy torts through case law, and the specifics of each claim can vary based on the facts of each case and the evolving interpretations by the courts.
