Invasion of Privacy

Chapter 5
Invasion of Privacy

False Light, Private Facts, Intrusion and Other Related Torts

In the twenty-first century, individuals find it increasingly difficult to live out their lives in peace. Our society bristles with computers, electronic eavesdropping devices, powerful telephoto lenses and a whole arsenal of other high-tech equipment capable of gathering, storing and retrieving personal and professional information about all of us.

If the federal government’s databanks were linked together to combine income tax information with U.S. Census, Social Security and other data in the files, it would be quick and easy to compile a dossier of 20 pages or more on each man, woman and child in America, and no file would take more than a few seconds to locate. Commercial databanks possess salary, employment, credit, home-mortgage, healthcare and other personal information that may be even more sensitive. The mass media are capable of disseminating a great deal of information about us, including our physical likenesses, even if we might urgently wish them not to do so.

Although today’s invasions of our personal privacy involve more than the mass media, it was the unrestrained, sensational press coverage of 130 years ago that prompted legal scholars to advocate the first privacy laws. The lurid era of yellow journalism in the late nineteenth century found reporters prying feverishly into the personal affairs of the rich and famous. An aristocratic Boston lawyer and businessman, Samuel Warren, was particularly offended by what he regarded as steamy, voracious press attention paid to the forthcoming wedding of his daughter.

Because no remedies were available under existing law to deal with such journalistic excesses, Warren declared that a different approach was needed. In collaboration with his former law partner, Louis Brandeis, Warren pounded out an angry, sweeping article for the Harvard Law Review.1 They proposed that the legal system recognize a new principle, which they described as an individual’s right to privacy:

The courts and legislatures did not react immediately to provide citizens, in the Warren and Brandeis phrase, “some retreat from the world,” but clearly the privacy thesis struck a responsive chord within the legal profession. Several privacy invasions were alleged in lawsuits, although a court would not allow the first recovery for damages until some 15 years later. Privacy law has been evolving, in fits and starts, ever since, responding—sometimes slowly, often inconsistently—to technological and social change.

Because of such inconsistency, noted legal scholar William Prosser proposed that most privacy issues could be categorized as belonging to one of four different types: (a) unreasonably placing an individual in a false light before the public; (b) unjustified publication of embarrassing private facts; (c) unreasonable intrusion on one’s physical solitude; and (d) misappropriation of one’s name, identity or likeness.3 His suggested taxonomy proved to be just the ticket for making order out of chaos, and most legal scholars, state courts and legislatures subsequently adopted his four-part classification scheme.

Discussion of the basic elements of an invasion of privacy suit proves difficult because a plaintiff’s case might involve any one of the four different types (e.g., proving a defendant committed an unreasonable act in an intrusion case versus demonstrating that a statement is not true in a false light case). Nonetheless, some issues are common across all categories. First, most courts make no distinction between oral speech and written or otherwise recorded communication. Additionally, the right to privacy is considered a personal right and therefore, generally cannot be enforced by family members or by the plaintiff’s estate if the plaintiff is no longer living. For similar reasons, most jurisdictions have held that only individuals—and not corporations or other similar entities—may bring a cause of action for invasion of privacy because such organizations have no “feelings and sensibilities” of human beings (misappropriation, in some instances, being the exception to this rule).

This chapter discusses false light, public disclosure of private, embarrassing facts and intrusion. These three subcategories of the tort of invasion of privacy (generally defined as the wish to be left alone), are part of civil tort law defined in Chapter 4 as involving claims of harm to persons or personal property. The chapter concludes with a brief discussion of infliction of emotional distress, saving misappropriation, the subcategory of invasion of privacy perhaps of most concern to advertising and public relations professionals, for the next chapter.

False Light

The tort of false light invasion of privacy involves portraying individuals as something they are not, and doing so in a way that ordinary persons find offensive. In some respects, false light privacy is much like defamation, a point we return to later. But there are important differences—enough of them to make false light, in the eyes of most courts, a separate matter entirely.


What might be considered among the first successful false light courtroom victories occurred in England in 1816. The winner was Lord Byron, one of the most colorful of all the English romantic poets. Angry because someone had falsely attributed a mediocre poem to him—one he swore he had not written—Byron persuaded a British court to issue an order halting further publication and circulation of the poem.4

In the United States, false light evolved slowly from the beginnings of privacy law, which began in the early 1900s, but the tort sprang forth after a more than five-decade gestation period in the mid-1960s to become identified by most commentators as a separate subcategory of invasion of privacy. Today, most states have adopted some form of false light and courts in many of the remaining states have hinted that they may adopt the tort if presented with the appropriate case.

False light invasion of privacy has been severely criticized by many in the mass media and in the legal community as being so substantially like the tort of defamation that it should cease to be recognized as a separate cause of action. This line of thinking has recently led a number of states, including Florida,5 Massachusetts,6 Texas7 and North Carolina,8 to explicitly decline to recognize false light as cognizable by their courts. It is still too early to determine whether this is a trend that will continue.


The Restatement of Torts attempts to summarize the law in a general area. The Restatement defines false light privacy this way:

The Elements of False Light

Clearly, false light invasion of privacy resembles defamation of character (see Chapter 4). Similar to a suit for defamation, the plaintiff must first prove that (a) a false statement has been made that offends ordinary decency (but, unlike libel, not necessarily harmful to reputation); (b) the offending material must be shown to at least one other person by the defendant; (c) the plaintiff has been identified in the statements; (d) the actions of the defendant are the true cause of the actual harm suffered by the plaintiff (in this case, mental anguish rather than injury to reputation); (e) the plaintiff is entitled to be compensated by money damages for that harm; and (f) the defamatory statements appeared because the defendant has done all this with the required degree of fault established by law. Let’s take a closer look at each of these points in turn.

False Statements That Offend Ordinary Decency

The false light statement may not be defamatory—although it sometimes is—but it must be found offensive to a reasonable person. “Offensiveness” in defamation cases may not matter unless the statement hurts business—a condition not always easy to document. However, “offensiveness,” in and of itself, can determine the outcome of a false light invasion of privacy lawsuit.

In 1947, when she was 10 years old, Eleanor Sue Leverton of Birmingham, Ala., was struck by a car, knocked down and nearly run over. As a woman bystander lifted the injured child from the pavement, a newspaper photographer, who happened to be nearby, shot a picture of the scene. His powerful, dramatic photograph was published the following morning in a Birmingham newspaper.

Nearly two years later, the Saturday Evening Post used that same picture—it had been purchased from a photo syndicate house—to illustrate a magazine article on pedestrian carelessness. The article was entitled “They Ask to Be Killed,” and underneath Miss Leverton’s photograph was this subheading: “Safety education in schools has reduced child accidents measurably, but unpredictable darting through traffic still takes a sobering toll.” Beside the title was a box that read: “Do you invite massacre by your own carelessness? Here’s how thousands have committed suicide by scorning laws that were passed to keep them alive.”

Miss Leverton and her parents resented the implication that her misfortune was brought on by her own carelessness. Indeed, the Birmingham police concluded at the time that Miss Leverton’s accident happened not because of her own carelessness, but because the motorist had run through a red light. The Levertons sued for an unwarranted invasion of their daughter’s privacy and were awarded $5,000. The appeals court agreed that the judgment was appropriate: “The sum total of all this is that this particular plaintiff, the legitimate subject for publicity for one particular accident, now becomes a pictorial, frightful example of pedestrian carelessness. This, we think, exceeds the bounds of privilege.”10 In other words, Miss Leverton had been placed in a false and offensive light.

A wrong or misleading context alone, however, may not win a false light privacy suit if the conduct depicted is not found to be offensive. For example, consider the case of Clarence W. Arrington, whose photograph was used on the cover of The New York Times magazine in connection with a lengthy article entitled “The Black Middle Class: Making It.”11 The photograph, published without his consent, showed him walking down a Manhattan street wearing an expensive business suit, carrying a briefcase and, in general, looking prosperous.

Indeed, Arrington was doing well. He had earned an M.B.A. from Columbia University, and, at the time his photo was taken, was a financial analyst with General Motors. Still, he resented being associated with the Times magazine article, a harsh indictment of materialistic and status-conscious African-Americans who, the article contended, were becoming less and less concerned about the plight of their less fortunate African-American brothers and sisters.

Arrington sued the Times, claiming that he did not fit the theme of the article or the materialistic views of the persons who had been interviewed. He was placed in a false light, he argued, and, as a result, he was exposed to contempt and ridicule from his friends and suffered mental anguish. The trial court agreed, but the appeals court did not, holding that the Times article neither depicted him personally as being insensitive nor portrayed him in an offensive manner.12

Determining what is “highly offensive to a reasonable person” can be a vague and uncertain business, but it is in this arena that most false light privacy actions are fought. With few clear-cut guidelines to follow, judges and juries are given broad latitude to define what is “highly offensive,” and the results are not always consistent or predictable.


The plaintiff in false light invasion of privacy cases faces virtually the same requirements to prove an audience, or even a tiny portion of it, believes that the statements refer to him or her, as does a libel plaintiff. Unfortunately, identification also is just as often made easy for the plaintiff by the defendant because of the emphasis on clearly identifying individuals inherent in the training of professional communicators.

Identification of group members for false light purposes is also identical. Like libel, each member of a small group, traditionally about 25 members or fewer, may sue and be able to collect, even if he or she is not personally identified in the false and shocking or outrageous communication. This a good place to note who can be a plaintiff in a false light suit because this is one area in which false light differs significantly from defamation.

The reason that individual members of a small group can sue is that each member of the group is recognized in the law as having legal standing. In defamation, so does any entity that is recognized as an individual in the eyes of the law, such as a company, partnership or other legal entity. These fictitious “individuals” generally cannot bring a cause of action for false light because, although they may have a reputation to defend for libel purposes, they cannot demonstrate they have suffered the mental anguish caused by the published false statement that is central to a plaintiff’s case in proving false light invasion of privacy.

In an example cited in Chapter 4 involving defamation, it was noted that both the principal owner of a company and the corporation itself could bring separate suits to repair their respective reputations. In a false light invasion of privacy situation, however, Mr. Marcus (the principal owner) could sue as an individual, but the Neiman-Marcus Company, as an incorporated organization, could not bring such a lawsuit because it would lack the legal standing to do so.


Although the devil is in the nuances differentiating the laws of false light from state to state, a plaintiff seeking compensation for harm to his or her mental well-being caused by an outrageous, false statement generally will be entitled to seek four different kinds of monetary awards: nominal damages, special damages, actual damages (in some jurisdictions, the second and third awards are sometimes combined and called “general” or ”compensatory” damages) and punitive (or “exemplary”) damages. Although these are discussed more thoroughly in Chapter 4, let’s briefly look at each of these in turn.

The general rule in American law is that a plaintiff has to be awarded something of value to win a lawsuit—the common law generally does not recognize moral victories. Therefore, a plaintiff not interested in seeking a large award, but interested in proving to the world that the embarrassing or outrageous statements are false, might simply seek a small or nominal damage award. This is relatively rare, however, in false light cases. More typically, a plaintiff, actually seeking millions for the supposed mental anguish, is found by a judge or jury to have suffered no real harm and, therefore, not deserving of more than a nominal award of damages even though, technically, the plaintiff has proven all the elements of his or her false light case.

Special damages are often thought of as out-of-pocket dollar loss. To obtain special damages, a plaintiff must produce evidence sufficient to prove that the false and outrageous statements cost the plaintiff demonstrable monetary loss. Expenses for psychiatric care, counseling services or prescribed medications, as well as evidence of wages lost or other financial reverses because the plaintiff was too upset to function normally, are examples of special damages often claimed by plaintiffs in false light cases.

The third category of damages, actual damage, requires no proof of actual monetary loss on the part of the plaintiff, but often does require the plaintiff to demonstrate that the alleged mental anguish caused by the false and outrageous statements did, in fact, exist. In jurisdictions that ask for some evidence of mental anguish, plaintiffs seeking actual damages, in addition to their own testimony, typically introduce testimony from friends and medical and/or counseling professionals to meet this requirement.

If a judge or jury accepts that the harm has occurred, and the defendant has no additional defenses, money will be awarded to the plaintiff to compensate him or her based on the judge’s or jury’s estimation of the harm— an invitation for large damage awards for the plaintiff that many courts seem unable to resist. The possibility of such large verdicts should be all the impetus needed for advertising and public relations professionals to take all possible precautions to avoid becoming embroiled in a false light suit.

Punitive damages are awarded not to compensate the plaintiff, but to punish the defendant. Because they are meant to punish instead of compensate, punitive damages, generally, are awarded only when the defendant’s actions are so outrageous that they offend the conscience of judges or juries. In a false light invasion of privacy suit, punitive damages might be awarded if the statements of the defendant were not only false, but the defendant both knew they were false when published and were purposefully meant to harm the plaintiff. Like actual damages, punitive damage awards can reach mega-amounts in invasion of privacy suits and are as dangerous, if not more so, to defendants.

Defendant Fault

False light privacy, like defamation, requires that the offending publication resulted because the person who published the material meets the fault standard established by law. Although fault in tort law often is defined as an error in judgment or conduct (i.e., negligence, or any departure from normal care because of inattention, carelessness or incompetence), in false light invasion of privacy, the Supreme Court has decreed that the fault required is “actual malice” (i.e., the publication of a deliberate lie, or publishing with a reckless disregard as to whether the statement is true).

Actual malice is the fault standard required for public officials and public figures in defamation cases and, as discussed in Chapter 4, is a very difficult hurdle for such a plaintiff to overcome. In false light invasion of privacy suits, all plaintiffs must show actual malice regardless if they are public or private. Although one might conclude, therefore, that false light cases would be few and far between because of the extreme difficulty plaintiffs face in demonstrating actual malice in libel cases, for reasons discussed later in this chapter, proving actual malice in false light cases is often much easier because of the outrageous actions of defendants in publishing the complained of material.

Time, Inc. v. Hill

The two criteria essential for winning a false light invasion of privacy suit are (a) that the false light in which the other person is placed would be highly offensive to a reasonable person, and (b) that the person who publicized the false and offensive information knew it was false at the time or acted in reckless disregard of whether the material was true. The latter criterion—the actual malice fault requirement—was first applied by the Supreme Court to false light invasion of privacy in 1967, in Time, Inc., v. Hill.13 In this case, the first major invasion of privacy case ever ruled on by the Supreme Court, members of a quiet, private family had become the subject of intense and poorly handled mass media coverage because of the crush of events quite out of their control.

The case began with a jailbreak. In 1952, three convicts escaped from a maximum-security prison and, rather than head for the hills, slipped into the peaceful suburb of Whitemarsh, Pa., just outside Philadelphia. The three convicts, apparently selecting a private home at random, invaded the residence and held the owner, James Hill, and his wife and five children hostage for 19 hours.14 The family members were not harmed or molested; in fact, they reported that they had been treated with courtesy despite the tenseness of the situation. Police, acting on a tip, found out about the hostages and surrounded the Hill home. When the convicts attempted to escape, two of the three were shot and killed in a gun battle with the police.

Early in the following year, a writer named Joseph Hayes published a novel about a family held hostage by three escaped convicts. Entitled The Desperate Hours,15 the novel was inspired by the Hill family drama, although the author drew on other hostage situations as well. The book differed from actual events in several aspects. For one thing, the convict characters in the novel, far from being courteous, were mean and abusive, especially toward the daughter of the family. The upcoming publication of the book that was expected to become a bestseller, plus the trauma of the original experience and the subsequent intensive media attention surrounding the 19-hour standoff, prompted the Hill family to move to Connecticut where none of their new acquaintances knew of the hostage-related events.

The publication of the novel, however, was only the beginning. A short time later, Hayes decided to turn the book into a play. Drawing favorable attention from theatrical producers, the play was cast and then taken on the road to various cities on the east coast to ready it for possible production in New York City. After positive reviews in regional newspapers, the now definitely Broadway-bound play was scheduled to have its last out-of-town performances in Philadelphia.

At this juncture, editors at the country’s leading news and photo magazine, Life, decided to do a piece about the play, but not just another run-of-the-mill, advance story on a Broadway-bound drama. Instead, Life’s editors elected to dredge up the Hill family’s ordeal and relate it to the fictional treatment depicted in The Desperate Hours.

“The play,” the Life article exclaimed, “is a heart-stopping account of how a family rose to heroism in a crisis.”16 A series of photographs, taken both inside and outside the former Hill residence near Philadelphia, posed actors from the play illustrating scenes from the play. One photo depicted the son being roughed up by one of the convicts. Another photo, captioned “daring daughter,” showed actors depicting the daughter in the play biting the hand of a convict, forcing him to drop a pistol on the floor, while still another photo was of the supposed father hurling the pistol out of a window. None of these things had happened to the Hill family.

The Hills had finally had enough, especially when it was announced that the play would become a major motion picture. A text and photo-illustrated article, clearly linking the Hills to the dramatized events, published in the one magazine that, at the time, was on every coffee table in every home and office in America, meant there was no place the Hills could live without seemingly forever being defined by the one trauma-causing event they had hoped to put behind them.

In their suit for invasion of privacy, the Hill’s complaint was that the Life article placed them in a false light by implying that the fictionalized, sensationalized events shown in the photographs reflected their own experiences as hostages. The trial court jury17 agreed that the magazine had been careless in linking the Hills to the play (at least in the photo captions) and found in their favor, as did the appeals court.18 Eventually, the case made its way to the Supreme Court of the United States, with Life arguing that a constitutional issue—freedom of the press to discuss matters that are newsworthy—was involved.

The Court decided the case in the wake of its recent ruling in New York Times v. Sullivan,19 which changed the fault standard in some defamation cases to actual malice (discussed in Chapter 4). The decision in Hill was a sweeping victory for freedom of the press. Although the connection between reporting on public events like the struggle for civil rights in Southern states that was at the heart of the Sullivan decision and an article about an upcoming play supposedly based on the Hill family’s private ordeal struck some observers as tenuous, the Court made it nonetheless. Ruling in favor of Life magazine, the Court sent the case back for another trial, holding that the Hill family (and apparently all plaintiffs in future false light cases) could win only if actual malice could be proven.20 Life magazine was careless, sloppy and negligent, perhaps, but its behavior clearly did not rise to the level of actual malice. At this point, the Hill family threw in the towel.

Affirmative Defenses

Once a false light invasion of privacy plaintiff has made a prima facie case (established a false and outrageous statement, publication, identification and so forth), the other side must mount a defense. These affirmative defenses include conditional privilege, opinion and consent.

Those who report information stemming from someone who has absolute privilege enjoy a conditional (or qualified) privilege (this concept is discussed more fully in Chapter 4). Conditional privilege extends to reports of government documents as well. Journalists and other citizens may quote from privileged documents without fear of false light suits so long as the published or broadcast accounts are full, fair and accurate.

In Gertz v. Robert Welch, Inc. the Supreme Court apparently created an additional affirmative defense for opinion statements. The Court commented, “We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.”21 Opinion statements are truly opinion—not susceptible to a truth or falsity test—and, therefore, cannot be the basis of a false light case.

Consent is a third affirmative defense to a charge of false light. Although, technically, a defense to libel as well, few consent to have their good names tarnished. It might be the case, however, that individuals who expect to or find material published about them that makes them look better than they actually are, would initially agree to the publication. Remember that the Hill family was depicted falsely as behaving heroically in the face of danger. A signed, or in other ways documented, consent is almost always a foolproof affirmative defense to invasion of privacy suits unless the defendant has somehow gone beyond the scope of that consent.

Other Defenses

In addition to conditional privilege, opinion and consent, there are secondary defenses, often called defenses in mitigation or incomplete defenses. One of these is retraction. As discussed in Chapter 4, a voluntary retraction can show good faith on the part of the communicator—an attempt to set the record straight and atone for a false statement. For the court to find it persuasive, the retraction should be timely, prominent and complete. Another secondary defense is to offer the offended people the right of reply—to provide space to those who have been wronged, or think they have been, to tell their side of the story.

Neither a retraction nor a right of reply can be imposed. The courts recognize the rights of communicators to control the contents of their communications. Corrections, retractions and rights of reply are all provided voluntarily, when they are provided at all. Secondary defenses do not allow the defendant to avoid a judgment, but they may reduce the amount of money a court might award.

Subcategories of False Light

The subcategory of invasion of privacy called false light can, itself, be subdivided into three categories typically labeled as embellishment, distortion and fictionalization.22 Time, Inc. v. Hill is an example of an embellishment case where the defendant has truthfully reported major facts about the plaintiff, but then has “embellished” the particulars by adding extra material to make it a better story. Let’s look at each of these sub-subcategories in turn.


In Hill, the Supreme Court held that all plaintiffs must show actual malice. As mentioned above, a plaintiff in a false light case often finds it easier to prove this fault standard than in a defamation suit. Cantrell v. Forest City Publishing, Co. is an example of a false light, embellishment case that demonstrates this principle.23

In 1967, the Silver Bridge across the Ohio River collapsed, killing 44 people, including Melvin Cantrell. The Cleveland Plain Dealer sent reporter Joseph Eszterhas and a photographer to the scene. Eszterhas, who subsequently went on to become a Hollywood writer well known for sleazy screenplays, including those for Basic Instinct and Showgirls, wrote several powerful, human-interest articles about the disaster. One of these award-winning pieces focused on the funeral of Mr. Cantrell and the impact of the tragedy on his family.

Five months later, Eszterhas was sent back to the Cantrell neighborhood in the Point Pleasant area to write a follow-up article. Eszterhas and a photographer visited the Cantrell home and talked with the Cantrell children, but Mrs. Margaret Cantrell, the widow, was not present. The article that Eszterhas developed from his revisit to Point Pleasant, later published in the Sunday magazine section of the Plain Dealer, emphasized the family’s poverty-stricken condition. At one point, the text read:

Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it.24

Beyond the misleading impression that the reporter had personally interviewed Mrs. Cantrell, there were a number of other flaws in the piece. In particular, statements about the family’s poverty were exaggerated. Mrs. Cantrell sued for false light invasion of privacy, alleging that the Plain Dealer article caused her family members to become objects of pity and that she and her son suffered mental distress, shame and humiliation.

The trial court awarded her $60,000 in damages, but the appeals court reversed.25 The Supreme Court, however, agreed to review the case. In only the second invasion of privacy case to reach the Court, the Court ruled in favor of Mrs. Cantrell. “These were calculated falsehoods,” the Court’s opinion said of the Plain Dealer article, “and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth.”26

Another example of an embellishment, false light invasion of privacy decision was the case of baseball star Warren Spahn, who sued a company that published a fictitious biography of him. Entitled The Warren Spahn Story, the book was a highly flattering portrait of the famous left-handed pitcher who won more than 300 games and was a National League fan favorite for many years. The “biography” embellished Spahn’s life in many ways, adding luster to his World War II record, for example, and including, as the trial court put it, “a host, a preponderant percentage, of factual errors, distortions and fanciful passages.”27 Spahn’s stature as a public figure might allow for some latitude, the court conceded, but in this case “the findings of fact go far beyond the establishment of minor errors in an otherwise accurate biography.”28

The lesson to be learned for advertising and public relations professionals is to not yield to the temptation to jazz up an ad, story or any other type of communication by adding a few extra, colorful comments or facts. The temptation is there because “we’re not saying anything bad about somebody, so why would they object?” As these cases tell us, the plaintiffs may object not for what you said, but that you said anything at all—especially if you embellished the truth.



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