The Right of Privacy
The right of privacy safeguards a person's personal and confidential information from being published without their permission. It is irrelevant whether the information is derogatory or embarrassing or whether it is true or false. Like the right to publicity, laws pertaining to the right of privacy are not uniform among the states, so unless you are certain of the laws of the states having jurisdiction over your work, it is best to comply with the laws that are the most protective of the right of privacy.
There is no explicit right to privacy in the United States Constitution, although an implied right to privacy has been held to exist. However, this is designed to guard against intrusion by the government and is not relevant to an individual's right to privacy from publications, which relies on the laws of the states for protection.
Generally, the right to privacy applies to three distinctive areas: the publication of private and embarrassing facts; the publication of facts that produce a false and offensive impression or create a “false light”; and the intentional intrusion upon a person's privacy.
Private and Embarrassing Facts
A person's right to privacy can be violated by the publication of private information that could be an embarrassment because a reasonable person would deem it offensive. The fact that the information is true is not a defense, but there are two defenses that can be raised.
First, if the information is of public concern or otherwise newsworthy it may be published. Obviously, public records may be published as well as accounts of public hearings, legislative proceedings, trials, criminal activities including arrest records, and calamities such as fires and floods. Information that is not free to be published and is considered private includes:
Medical records
Private letters and e-mails
Financial information
Sexual orientation and behavior
Diaries and journals
If the information has a connection to the official or public function of a public person, it can be published no matter how odious. Therefore, you should determine if your subject is a public official, public figure, or a private individual.
The second defense to a claim that the right to privacy was violated is if it can be shown the information is not offensive nor will it cause any embarrassment to the party identified. The standard determining what might or might not be an embarrassment is based upon what might be distasteful to a reasonable person.
False Light
A person can take legal action claiming an invasion of privacy if the publication creates a false impression that a reasonable person would find highly offensive; this is frequently referred to as a “false light invasion of privacy.” In order to prove a false light claim, three conditions must be satisfied: the impression must be highly offensive to a reasonable person; the defendant was at fault in some way; the aggrieved party is alive and identifiable.
In some ways, false light invasion of privacy is very similar to defamation. A number of states do not recognize a distinction and require that a libel suit be brought instead of a false light case. While libel is meant to provide redress for damages to one's reputation; false light suits are designed to compensate for embarrassment.
Keep in mind the aggrieved party need not prove the information is patently repugnant but only that it gives a distasteful perception. There are four sets of circumstances that can give rise to a false light allegation:
True events are fictionalized.
Facts are distorted or omitted creating a false negative impression.
Facts are embellished or mixed with fiction.
Photographs are published with unrelated contents.
Intrusion Upon Privacy
Unlike libel, false light, and the publication of embarrassing facts, intrusion upon one's privacy does not require publication to establish a claim that a person's privacy has been violated. The justification for this distinction is that the law recognizes a person has a right to solitude and to not have it intruded upon in an objectionable fashion.
Generally, claims that one's privacy has been encroached upon focus on the actions of writers and reporters in the process of obtaining information and photographs. Trespassing on someone's private property will normally constitute a violation of privacy while remaining on public property, even if conducting surveillance is usually permissible.
The most effective way to protect yourself from being accused of interfering with a person's privacy is to be respectful and act in good taste. For example, if you walk up to a person's door, ring the bell, and when the door opens ask politely for an interview, there is no offensive conduct that would justify a lawsuit for intrusion of privacy even though you have technically trespassed. On the other hand, if you are stalking someone on public property and surreptitiously taking unflattering photographs of the subject, an intrusion upon privacy might be established.
