Invasion of Privacy – General

  1. Introduction

    Until 2008, Florida observed the four general categories of “invasion of privacy” recognized by Prosser in the Law of Torts (4th ed. 1971): (1) Intrusion, i.e., invading plaintiffs’ physical solitude or seclusion; (2) Public Disclosure of Private Facts; (3) False Light in the Public Eye, i.e., a privacy theory analogous to the law of defamation; and (4) Appropriation, i.e., commercial exploitation of the property value of one’s name.1 However, in 2008, the Florida Supreme Court held that it would no longer recognize a false light privacy tort because such claims substantially overlapped with defamation and defamation by implication, and provided too loose and objective a standard of analysis to determine whether a defendant’s action was “highly offensive.”2 Through Fla. Stat.§540.08, Florida’s legislature “amplified the remedies available for . . . commercial exploitation of the property value of a person’s name or personality.”3 Thus, in Florida, a WMC plaintiff could bring a claim for three types of invasion of privacy, depending on the circumstances, but the relative of a deceased WMC plaintiff will have more limited rights to relief on behalf of the decedent.4 A WMC victim could potentially use the three remaining theories of invasion of privacy to obtain relief for intentional and unwanted intrusions on their person/home/time that caused him or her damages (including emotional damages).

    1. Intrusion

      In Florida, the tort of intrusion has three elements: (1) there must be a private quarter; (2) there must be some physical or electronic intrusion into that private quarter; and (3) the intrusion must be highly offensive to a reasonable person.5 In considering the third prong, Florida courts have looked to claims of intentional infliction of emotional distress.6 Thus, to support a claim for intrusion, the underlying conduct must be “so outrageous in character,” and “so extreme in danger,” as to “go beyond all possible bounds of decency.” Id. Courts have therefore considered this the threshold question in an intrusion claim.7

    2. Publication of private facts

      In Florida, the elements of a publication of private facts claim are: (1) the publication; (2) of private facts; (3) that are offensive; and (4) are not of public concern.8

    3. False light in the public eye

      Before the Florida Supreme Court abolished the tort in 2008, the two essential elements were that: (1) the false light must be “highly offensive to a reasonable person”; and (2) the defendant must have either acted knowingly or in “reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”9 However, in Florida, a plaintiff with a claim fitting the above description should now proceed with a defamation action.10

    4. Misappropriation

      The elements of a common law misappropriation claim in Florida are substantially identical to a claim under Fla. Stat. § 540.08—namely, misappropriation and commercial exploitation of one’s likeness for monetary gain.11 Moreover, a plaintiff may assert both claims in the same action without abridging the types of remedies available under the common law.12

  2. Cases

    1. Cape Publ’n, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989)

      • Procedural Posture: On review from lower court order granting partial summary judgment on liability issue for parents’ claim against defendant newspaper and reporter for alleged invasion of privacy. The court certified the following issue for review: Can a newspaper be held liable under a private-facts tort theory “for publishing lawfully obtained, confidential child abuse information in a story on a related child abuse trial.”13

      • Law: Invasion of privacy (Publication of private facts)

      • Facts: Respondents were charged with aggravated child abuse after allegedly maliciously punishing their child by scrubbing her bottom with steel wool. When the defendant reporter covering the trial for a local newspaper went to the court for further information, he interviewed the prosecutor, and the case file, which included an HRS report, a sheriff’s case report, and a typed interview with the child. The secretary did not comment on the confidentiality of anything in the file, and the reporter subsequently published a story that asserted statements made by the child during the trial that her parents also forced her to eat hot peppers, etc.14 Fla. Stat. § 119.07 states that access to reports re: child reports is limited.

      • Outcome: The court affirmed the dismissal of plaintiffs’ claims because the information was lawfully obtained and was of legitimate public concern since the article was intended to “scrutinize the judicial function,” and defendant Cape was “printing what it believed to be facts brought out at trial in an effort to hold up to the public what it considered to be a questionable judicial determination. It was not attempting to sensationalize a private nongovernment matter.”15

    2. Cape Publ’n, Inc. v. Bridges, 387 So. 2d 436 (Fla. Dist. Ct. App. 1980)

      • Procedural Posture: Defendants appealed from trial court order compelling them to answer questions inquiring into the editorial process and state of mind of those responsible for the publication of a report involving the plaintiff on “60 Minutes,” and in a later Atlantic Monthly article.

      • Law: Invasion of privacy; Trespass; Intentional infliction of emotional distress

      • Facts: Plaintiff sued petitioners for compensatory and punitive damages arising from claims of invasion of privacy, trespass, and intentional infliction of emotional distress. She alleged that after she was abducted at gunpoint by her husband, who later committed suicide, she was photographed in a state of nudity and distress, and those photos were published by “60 Minutes” and Atlantic Monthly without her permission. The trial court ordered defendants to produce state of mind evidence regarding the editorial process.

      • Outcome: The appeals court affirmed the trial court’s order that defendants produce specific state of mind evidence. The court explained that “[w]e do not perceive any reason to exclude actions for invasion of privacy, trespass or intentional infliction of emotional distress from the above recited principles when the issue of punitive damages is pending before the trial court.”16 The court explained that it would consider such evidence in analyzing the claim for punitive damages and that the admission of such direct/indirect state of mind evidence applied to the press just as it applies to other defendants.17

    3. Cason v. Baskin, 20 So. 2d 243 (Fla. 1944)

      • Procedural Posture: Plaintiff appealed from judgment for defendants sustaining demurrers to each of the four counts to recover damages for an alleged invasion of plaintiff’s right to privacy arising from the writing and publication of defendant’s book.

      • Law: Invasion of privacy

      • Facts: Plaintiff sued for invasion of privacy for character in defendant’s book, Cross Creek, allegedly portraying her without her permission. The vivid portrayal included the use of profanity, but generally portrayed plaintiff positively. Plaintiff sought $100K damages from defendant, who was a good friend at the time.

      • Outcome: The court held that the plaintiff could bring a viable claim for a violation of her right to privacy, but that only nominal damages would be available: “Our conclusion is that, in spite of the fact that the publication complained of, considered as a whole, portrays the plaintiff as a fine and attractive personality, it is nevertheless a rather vivid and intimate character sketch, and the allegations of count two taken as a whole if proven to be true would make out a prima facie case of an invasion of the right of privacy such as would authorize the recovery of at least nominal damages, unless this case falls within one of the recognized exceptions to or limitations upon that right.”18

      • Special Notes: Although the court determined that an invasion of privacy action was supported by the facts of the case, plaintiff had suffered no actual damages: “Furthermore, while legally permissible perhaps, it is inconsistent for plaintiff to sue the defendant for one hundred thousand dollars damages for publishing this short biographical sketch, as constituting an invasion of her right to privacy, and in the same suit claim one hundred thousand dollars damages upon the theory that she is entitled to a share in the proceeds of the sale of the book.”19

    4. Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156 (Fla. 2003)

      • Procedural Posture: On consideration of certified question from the Eleventh Circuit regarding whether plaintiffs’ allegations constituted an invasion of privacy and whether such invasions would be covered by defendant’s insurance.

      • Law: Invasion of privacy (Intrusion)

      • Facts: Plaintiff, a former secretary, sued defendant, her direct supervisor, for unwelcome touching and unwelcome comments constituting sexual harassment, as well as “invasion of privacy” through defendant’s alleged intrusion into plaintiff’s solitude in a manner that would cause mental distress and injury to a reasonable person.

      • Outcome: The court dismissed because plaintiff’s allegations that defendants’ actions “intruded” on her solitude were insufficient to amount to a claim of invasion of privacy because “[t]he intrusion to which [Florida law] refers is into a ‘place’ in which there is a reasonable expectation of privacy and [does] not refer[] to a body part. . . [T]his is a tort in which the focus is the right of a private person to be free from public gaze.”20

      • Special Notes: The court noted that there were four separate categories of invasion of privacy in Florida: “(1) appropriation-the unauthorized use of a person’s name or likeness to obtain some benefit; (2) intrusion-physically or electronically intruding into one’s private quarters; (3) public disclosure of private facts-the dissemination of truthful private information which a reasonable person would find objectionable; and (4) false light in the public eye-publication of facts which place a person in a false light even though the facts themselves may not be defamatory.”21 However, in Jews for Jesus, Inc. v. Rapp,22 the court revisited this issue and determined that Florida would no longer observe a false light invasion of privacy tort.23

    5. Heath v. Playboy Enter., Inc., 732 F. Supp. 1145 (S.D. Fla. 1990)

      • Procedural Posture: Before the court on defendant’s motion for summary judgment for invasion of privacy claim arising out of defendant’s publication of child’s photograph with an account of her paternity in “The Year in Sex” issue of Playboy. The child was the daughter of an aspiring actress, who had reportedly been fathered by Johnny Carson’s oldest son.

      • Law: Invasion of privacy (Publication of private facts)

      • Facts: Plaintiff was the guardian ad litem of Jane Doe, a minor child, suing defendant for invasion of privacy for its publication of plaintiff’s photograph with an account of her paternity in Playboy feature. Plaintiff argued that the publication constituted an invasion of privacy and stigmatized the child. Plaintiff also argued that the publication had exploited the child.

      • Outcome: The court granted summary judgment for defendant, and gave plaintiff ten days to show cause as to why he should not grant sanctions. The court explained that because the facts published in the article were not private, the photograph of the plaintiff was taken in a public place, and all information was obtained legitimately, “plaintiff has failed to state a claim for invasion of privacy based on the theory of publication of private facts,” and the court did not need to consider plaintiff’s consent or the other elements of the claim.

      • Special Notes: The court laid out the elements of a claim for “publication of private facts,” setting forth four elements based on the Restatement’s test, under which a plaintiff must prove: “(1) the disclosure was public; (2) private facts were disclosed; (3) the matter publicized was highly offensive to a reasonable person; and (4) the matter is not a legitimate concern to the public.”24 Here, because the photograph and information accompanying it were public information, there was no claim.

    6. Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 (5th Cir. 1962) (applying FL law)

      • Procedural Posture: On appeal from lower court decision dismissing plaintiff’s claim for invasion of his right to privacy claiming more than $10,000 as punitive damages for defendant’s alleged improper actions.

      • Law: Invasion of privacy

      • Facts: Plaintiff was a waiter at a country club, and he parked there while he was at work. He had previously purchased tires/tubes from defendant Goodyear on the installment plan, and though he was current on his payments, Goodyear came unannounced to his place of business and removed the tires/tubes from his car, leaving it standing on its rims in full view of plaintiff’s colleagues and superiors. Plaintiff claimed that he had 2 sleepless nights, and that the action by defendant was malicious. He also alleged damages to recover for the humiliation and embarrassment of his wife and son.

      • Outcome: The court affirmed in part and reversed in part, determining that plaintiff stated a cause of action in tort for invasion of privacy, while also holding that the court should not consider the allegations of damage to plaintiff’s family because, as in libel cases, “[t]o hold otherwise could lead to a double recovery.”25

    7. Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996)(applying FL law)

      • Procedural Posture: Before the court on plaintiffs’ motion for preliminary injunction

      • Law: Invasion of privacy

      • Facts: The family of health insurer’s chief executive officer sued television reporters from Inside Edition trying to gather video and audio footage on family for a story on the allegedly inflated salaries of the company’s executives. They sought to enjoin the defendants from placing their home under surveillance and from otherwise harassing them after the reporters had consistently followed them from Pennsylvania to Florida in an effort to gather footage.

      • Outcome: The court held that the plaintiffs had shown a likelihood of prevailing on the merits of a claim for invasion of privacy under both Florida and Pennsylvania law. Plaintiffs offered evidence showing that while they would be irreparably emotionally damaged, the defendant photographers would not be irreparably harmed, because they would still be able to pursue the story, and the public would still be able to hear a story on the health insurer company’s high salaries—it would simply be pursued differently. The court explained that “[t]he evidence show[ed] that the Wolfsons’ exceptionally well-trained security force was gravely concerned about Mr. Wilson’s and Mr. Lewis’s actions. The security guards reasonably interpreted their conduct as posing a threat to the safety and well-being of the Wolfson family. Although [the plaintiff’s security guard] did not use his ‘semi-automatic’ weapon, all parties should be grateful that no greater violence ensued.”26

      • Special Notes: Florida adopted the claim of “intrusion upon seclusion,” from the Restatement (Second) of Torts, § 652B, which states that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”27 The comments to the Restatement note that “(a) The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man. (b) The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. . . The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.”28

    8. Jacova v. S. Radio & Television Co., 83 So. 2d 34 (Fla. 1955)

      • Procedural Posture: On appeal from lower court decision granting summary judgment in favor of defendant where plaintiff sued for an alleged violation of his right to privacy and for being identified as a gambler by a canned film telecast of a gambling raid made on a cigar store.

      • Law: Invasion of privacy

      • Facts: Plaintiff was an innocent customer filmed during a gambling raid on a Florida cigar store. He later brought a right of privacy action to recover on a claim of invasion of privacy, which he alleged had led to damages and injuries to both his person and his business. The lower court granted summary judgment for the defendant.

      • Outcome: The court affirmed and held that the showing of “plaintiff’s picture on the telecast in the manner in which it appeared was not an unreasonable or unwarranted invasion of his privacy, as a matter of law,”29 because plaintiff was “in a public place and present at a scene where news was in the making.”30

      • Special Notes: The court explained that plaintiff was not tagged as a gambler, and his name was not mentioned; “The most that can be said is that his presence at the scene was under ambiguous and perhaps, suspicious circumstances. But certainly those of his friends and acquaintances who saw his picture on the screen would know there was nothing sinister about his presence there.”31

    9. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002)

      • Procedural Posture: On cross-motions for summary judgment on plaintiff’s claims arising from her feature in a Girls Gone Wild video.

      • Law: False light Invasion of Privacy; Fla. Stat. § 540.08; Commercial misappropriation of likeness

      • Facts: Plaintiff, a minor (only seventeen when videos were shot) was videotaped on the streets of Panama City, Florida with another female friend, and they exposed themselves in exchange for plastic beads. Plaintiff sued defendants, the filmer/distributors of Girls Gone Wild video featuring her and her companion, claiming they violated her rights.

      • Outcome: The court affirmed summary judgment for the defendants on all claims. The court rejected the statutory claim because it deemed the video an “expressive work,” which was not the type of commercial depiction that was contemplated by the statute—the fact that the video had sold for a profit was irrelevant to that analysis.32 Moreover, the court determined that plaintiff’s minor status did not undermine her ability to consent because the statute in question did not explicitly discuss disability of a minor, unlike several other state laws.33 The court affirmed summary judgment to defendants on false light privacy because the publicity at issue was “an accurate portrayal of the public display,” and was not “unreasonable and false.”34 The court showed little compassion for the plaintiff, writing: “[T]his is not a case where Lane was videotaped at a private pool removing her clothing, only to have her image later interspliced with videotapes of other women removing their clothing in public, giving the false impression that Lane had engaged in such debauchery. Rather, Girls Gone Wild video depicts Lane accurately as exchanging nude photographs for beads on a street in Panama City, just as dozens of other women in the video are doing.”35 Moreover, the marketing of the video was irrelevant because there was nothing connecting the plaintiff with the more explicit sexual content.36

      • Special Notes: This case is a direct contrast to Gritzke v. M.R.A. Holdings, LLC,37 in which the court denied the defendants’ motion to dismiss plaintiff’s common law and statutory invasion of privacy claims for publishing her photograph on the package and advertisements of a Girls Gone Wild video. In Gritzke, however, the defendants specifically used plaintiff’s image to market the video without her consent to disseminate the video, let alone use her image on the packaging. In Lane, however, plaintiff’s image was not used for marketing purposes; rather, plaintiff was merely depicted as one of the many women participating in the public escapades that defendant had captured on film.

    10. Gritzke v. M.R.A. Holdings, LLC, No. 4:01CV495-RH, 2002 WL 32107540 (N.D. Fla. Mar. 15, 2002)

      • Procedural Posture: On defendant’s motion to dismiss plaintiffs’ statutory and common law claims arising from use of her image on Girls Gone Wild video

      • Law: Fla. Stat. § 540.08; Invasion of Privacy (Misappropriation); Florida Unfair and Deceptive Trade Practices Act

      • Facts: While she was a Florida college student, plaintiff was photographed and videotaped exposing her breasts at Mardi Gras in Louisiana, and her photograph was later used to market Girls Gone Wild videos on the defendant’s video packaging and web site without her permission. She sued for damages.

      • Outcome: Denying motion to dismiss all claims, and rejecting defendant’s First Amendment defense because “[t]he First Amendment provides no right to make an unconsenting individual the poster-person for a commercial product, as plaintiff alleges defendant has done.”38

      • Special Notes: The key to the holding in this case was the fact that the plaintiff was featured in the actual advertising of the video, unlike other plaintiff’s with similar claims against the Girls Gone Wild producers, who were simply depicted flashing the camera but were not featured in defendant’s marketing materials.

    11. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)

      • Procedural Posture: Stepmother of employee of plaintiff religious organization sued the defendant organization following publication of article in newsletter and on website stating that stepmother (who was Jewish), had accepted Christian beliefs. Jews for Jesus petitioned for review of lower court’s decision certifying a question, affirming in part and reversing/remanding in part.

      • Law: Defamation; False light invasion of privacy; Intentional infliction of emotional distress; Negligent training and supervision

      • Facts: Employee of Jews for Jesus published statements that his Jewish stepmother had joined Jews for Jesus when his father died. She explained that the untrue statements were read online by friends, and she sued for relief.

      • Outcome: The Florida Supreme Court held that although it would recognize a cause of action for defamation by implication, it would no longer recognize a common law claim for false light invasion of privacy. The court explained that defamation already recognized the concepts at issue under false light invasion of privacy claims, and there was “no meaningful distinction” between the two to justify recognizing “false light” as a separate tort.39

      • Special Notes: The court found that First Amendment rights would be negatively affected by recognizing a false light tort because the “highly offensive to a reasonable person” standard employed is so vague and unclear.40 The court noted that “because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.”41

  3. Practice Pointers

    Florida law does not impose liability for the publication of facts that are of “legitimate public concern.” The Florida Supreme Court has recognized that this “newsworthiness” exception is a “formidable obstacle” for a plaintiff bringing an invasion of privacy suit.42 The exception covers things such as current events of public significance, and information about actors participating in them, as well as “soft news” and human interest portrayals.However, courts in Florida recognize that individuals maintain a zone of privacy about certain sensitive personal matters.43 In Jews for Jesus,44 the Florida Supreme Court held that it would no longer recognize a claim for “false light invasion of privacy,” since defamation and other statutory/common law claims already cover the issue.45

  1. See Loft v. Fuller, 408 So. 2d 619, 622 (Fla. Dist. Ct. App. 1981). 

  2. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1114 (Fla. 2008) (holding that Florida would no longer observe a false light invasion of privacy claim despite the fact that several other states had gone the other way on the issue). 

  3. Id

  4. See id. at 623 (“[T]he majority view, as represented by the Restatement of Torts, is that the deceased’s relatives may not maintain an action for invasion of privacy, either based on their own privacy interests or as a representative for the deceased where the alleged invasion was directed, as was the case here, primarily at the deceased.”). 

  5. Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D. Fla. 2010). 

  6. Stoddard v. Wohlfahrt, , 573 So. 2d 1060, 1062-63 (Fla. Dist. Ct. App. 1991) (applying the standard for intentional infliction of emotional distress to evaluate the offensiveness of conduct in an intrusion claim). 

  7. See, e.g., Stasiak v. Kingswood Co-op, Inc., No. 8:11-cv-1828-T-33MAP, 2012 WL 527537, at *2 (M.D. Fla. Feb. 17, 2012). 

  8. Cape Publ’n, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989). 

  9. Harris v. District Bd. of Trustees of Polk Cmty. Coll., 9 F. Supp. 2d 1319, 1329 (M.D. Fla. 1998). 

  10. Jews for Jesus, 997 So. 2d at 1114 (Fla. 2008) (abolishing the tort of false light invasion of privacy). 

  11. Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299, 1313 (M.D. Fla. 2010) (noting that under Florida law, the elements of common law misappropriation and statutory misappropriation are substantially identical).  See supra at 6-10 (discussion of Fla. Stat. § 540.08). 

  12. Coton, 740 F. Supp.2d at 1313 (citing Almeida, 456 F.3d at 1325). 

  13. Hitchner, 549 So.2d. at 1375. 

  14. Id. at 1376. 

  15. Id. at 1378. 

  16. Cape Publ’n v. Bridges, 387 So. 2d 436, 440 (Fla. Dist. Ct. App. 1980). 

  17. Id. at 339-40. 

  18. Cason v. Baskin, 20 So. 2d 243, 247 (Fla. 1944) 

  19. Id. at 254. 

  20. Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162-63 (Fla. 2003) 

  21. Id. at 162. 

  22. 997 So. 2d at 1098. 

  23. See supra at 18. 

  24. Heath v. Playboy Enter., Inc., 732 F. Supp. 1145, 1148 (S.D. Fla.   1990) (citing Restatement (Second) of Torts § 652D (1977)). 

  25. Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 ,13 (5th Cir. 1962). 

  26. Wolfson v. Lewis, 924 F. Supp. 1413, 1435 (E.D. Pa. 1996) (applying Florida law). 

  27. Restatement (Second) Torts § 652(B). 

  28. Id. at cmts. a & b. 

  29. Jacova v. S. Radio & Television Co., 83 So. 2d 34, 40 (Fla. 1955). 

  30. Id

  31. Id

  32. Lane, 242 F. Supp.2d at 1215. 

  33. Id. at 1217. 

  34. Id. at 1222. 

  35. Id

  36. Id. at 1223. 

  37. See Gritzke v. M.R.A. Holdings, LLC, No. 4:01CV495-RH, 2002 WL 32107540, at *2-4 (N.D. Fla. Mar. 15, 2002). 

  38. Id. at *4. 

  39. Jews for Jesus, Inc., 997 So. 2d at 1108. 

  40. Id. at 1111. 

  41. Id. at 1114. 

  42. Hitchner, 549 So. 2d at 1377. 

  43. See, e.g., Univision, 717 So. 2d at 65 (rejecting defendant’s argument that the interview of plaintiff about her botched plastic surgery was newsworthy because “while the topic of the broadcast was of legitimate public concern, the plaintiff’s identity was not”). 

  44. 997 So. 2d at 1105-06. 

  45. Id.