A quick guide to privacy

Privacy has been defined as an individual’s right to be left alone. A person can claim invasion of privacy based on any of these four violations:

Public disclosure of private or embarrassing facts. This is subject to a three-part test. The material must have been:

1. Sufficiently private: Know only to a small circle of family or friends. Note: if something appears in court records or is said in open court testimony, it’s not considered private.
2. Sufficiently intimate: personal habits, details or history that the person doesn’t ordinarily reveal.
3. Highly offensive: The information must be such that would humiliate or seriously offend the average person if it were revealed about them.

False light.  You have unflatteringly portrayed – in words or pictures – a person as something he or she is not.

Intrusion. This deals with how the information is gathered – trespassing on private property, using an eavesdropping device without permission, misrepresenting yourself in order to gain access to a place or person. A reporter doing this can be sued even if the story is never published. In a nutshell: When a person is in a place where he or she has a reasonable right to expect privacy, a reporter must respect that right.

Misappropriation. Unauthorized use of a person’s name, photo, likeness, voice or endorsement to promote the sale of a commercial product or service.

The best way to protect against an invasion of privacy lawsuit is to obtain consent from your subject. Tell the person what you’re going to use and how you’re going to use it, then don’t veer from that. And, if you intend to rely on that consent as your defense in a privacy claim, get it in writing and be sure you get it from someone with a legal right to give it (not a minor). Examples: Landlords can not automatically give consent for tenants. Neither can school officials for students, employers for employees and parents for children.

Last Modified: August 31, 2006