Your Privacy & Rights: Filing a Lawsuit for Privacy Violations

Some people will sunbathe in their front yard and have not a care in the world who sees them. Others would be horrified by the practice and feel as though they’re uncomfortably “seen” by people just passing by. 

Fortunately, being seen sunbathing or not is within our own control—if you don’t like it, don’t do it. Simple.

But the legal definition, and what constitutes an invasion of privacy, is more specific but decidedly less simple.

Legal definitions of “privacy”

The general legal definition of privacy is the right of an individual to be free from unreasonable interference, surveillance, or disclosure of personal information. 

There are three primary principles of privacy law:

1. Reasonable expectation of privacy. The court would evaluate whether an individual had a justifiable expectation that their activities or information would remain private.
2. Public vs. private information. This is regarding information in public spaces (for example, social media posts) that have fewer protections than information shared in a confidential setting (like a doctor’s office).
3. Balancing privacy vs. the public interest. Privacy rights are important, but so is freedom of speech and public safety.

Tort law definition of privacy

Tort law relates to negligence. Negligence is the cause of action in most personal injury lawsuits. 

Tort law is the area of civil procedure that relates to civil (i.e. not criminal) wrongs or injuries. It permits an individual to seek compensation for harm caused by another person or entity. A tort can be negligent, or the failure to take reasonable care to avoid causing harm. It could also be intentional, such as assault or intentional infliction of emotional distress. It can also be strict liability, which is in cases that involve inherently dangerous activities or defective products. 

The tort law definition of privacy, or the tort of invasion of privacy, is the right to be left alone and to control the disclosure of personal facts. 

This includes protections against intrusion into private affairs, public disclosure of private facts, false light, and appropriation of name or likeness.

Constitutional law definition of privacy

Privacy isn’t explicitly mentioned in the Constitution; we have no specific protected right to privacy. However, the courts have interpreted privacy rights within the Fourth Amendment, which is protection against unreasonable search and seizure; and the Fourteenth Amendment, which includes due process, personal autonomy and body integrity.

Data and information privacy

Part of protecting privacy includes the right to control personal data and how it is collected, stored, and shared. This involves regulatory and statutory laws like the California Consumer Privacy Act (CCPA), which is a state law (not federal) but it serves as a model of how a state can regulate how companies handle personal data.

What is an invasion of privacy?

Invasion of privacy is a civil tort that happens when a person or entity:

• unlawfully intrudes into another person’s private affairs, 
• discloses private information, 
• places the person in a false light, or 
• misuses the person’s name or likeness for personal gain.

There are four categories of invasion of privacy claims:

1. Intrusion upon seclusion

This is characterized by someone intentionally intruding into another’s private space, conversation, or business in a way that is highly offensive to a reasonable person. It can include secretly recording a private conversation, hiding cameras in someone’s home or in a public restroom, or unauthorized surveillance of personal activities.

2. Public disclosure of private facts

If someone publicly shares private truthful information in a way that’s offensive and not of legitimate public interest, this would be considered an invasion of privacy. 

This could include publishing someone’s confidential medical information, explicit personal photos (without the person’s consent) or revealing details about someone’s personal finances.

3. False light

“False light” is the term used to describe the dissemination of false or misleading information about someone that creates a highly offensive or misleading impression. 

For example, this could be a news article that falsely implies the person committed a crime. It could also be publishing an edited or altered photo that would make it appear that someone was at a location when they weren’t there. It could also happen in other ways if someone’s beliefs or actions are otherwise misrepresented.

4. Appropriation of name or likeness

This is when someone uses another person’s name, image or identity for commercial gain without their consent. It’s also called a right of publicity violation. 

This can be in the form of a company that uses a celebrity (or anyone’s) photo in an advertisement without permission; it can also be “deepfake” videos that would lead the viewer to believe that someone endorsed a product when they didn’t. It could also include using someone’s voice or likeness for advertising purposes.

How do you prove an invasion of privacy?

There are a couple of elements you would need to prove if you believe you’re a victim of an invasion of privacy:

1. You had a reasonable expectation of privacy. In other words, the situation should never have been made public because of where and how it took place. 
2. The defendant’s action was intentional or reckless, meaning the violation of your privacy was done with carelessness. 
3. The intrusion or disclosure was highly offensive, meaning it would be considered offensive by a reasonable person. 
4. The defendant didn’t have a legal right or permission to take the action; in other words, there was a lack of consent and/or legal justification.

How might the defendant respond to an invasion of privacy lawsuit?

There are a couple of defenses that are typically argued in an invasion of privacy lawsuit, including:

1. Consent. If the plaintiff agreed but then later changed their mind, the defendant is not wrong if the action took place with the plaintiff’s consent at the time. 
2. The information is newsworthy or serves the public interest. For instance, if the plaintiff is a public figure, they have a lower expectation of privacy than a regular person. If the information is of legitimate public concern, the defendant can argue that it need to be known. 
3. Truth. Truth is a defense in a false light claim; in some instances a statement that was truthful and not actually misleading might not qualify as false light. 
4. Lack of a reasonable expectation of privacy. For instance, if the plaintiff was in a public space, they likely did not have an expectation of privacy. Photo or video captured from a place where the defendant is legally permitted to be does not need to be private.

We can return to the example of a person sunbathing in their front yard. If they are visible from a public street and a passerby takes their photo while not trespassing and standing in the public street where they are legally entitled to be, the sunbather does not have a reasonable expectation of privacy.

On the other hand, if the person is sunbathing in their backyard surrounded by a fence and the passerby comes up and looks over the fence to take a photo, that’s a different scenario and would likely have the opposite outcome.

Is an invasion of privacy a violation of Constitutional rights?

People talk a lot about their 1st Amendment right to free speech and the 4th Amendment right to be free from unreasonable search and seizure.

Yes, those amendments protect your rights against different types of invasions of privacy. However, the Constitution applies only to government interference with individual rights. If a private person or company violates your privacy rights, that is not a violation of the Constitution. You might be able to file a lawsuit if it meets the criteria listed above, but it’s unrelated to the Constitution. If an individual acting on behalf of the government (police officer, etc.) violates your privacy, then it could be a civil rights violation as related to your Constitutional rights.

Get a lawyer for a violation of privacy

The tort of invasion of privacy protects individuals from unwanted exposure, intrusion, and misuse of their personal identity. As technology advances, courts constantly reevaluate the boundaries between personal privacy and public interest. If you believe your privacy has been violated, seeking legal advice can help determine whether you have grounds for a lawsuit.

However, even if your privacy has been violated according to legal standards, you’d need to show how you were harmed as a result.

A personal injury lawyer can guide you through the process of seeking legal compensation for your losses related to an invasion of privacy.