Invasion of Privacy Torts

  1. Introduction

    Pennsylvania has both a statutory right to publicity and common law rights to privacy. The four forms of privacy recognized in Pennsylvania are defined under Sections 625B through 652E of the Restatement (Second) of Torts. They are: intrusion upon seclusion, appropriation of name or likeness, publicity given to private life, and publicity placing a person in a false light. Though some of these claims require actual publication of a matter that intrudes upon a plaintiff’s privacy, some do not. This permits a WMC victim to pursue, for instance, claims based on the collection of private information before publication or distribution. Common law privacy claims have been successfully pursued based on the publication of nude images without a plaintiff’s consent.

    There is uncertainty in Pennsylvania courts as to whether Pennsylvania’s codified privacy statutes have absorbed the common law claims of privacy, but courts are still recognizing both common law and statutory claims.1

  2. Elements

    1. (1) Intrusion Upon Seclusion

        (a) One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns; and

        (b) The intrusion would be highly offensive to a reasonable person. 2

          (1) Note: “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.

          (2) 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. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. 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.

          (3) The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.

          (4) There is likewise no liability unless the interference with the plaintiff’s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. Thus there is no liability for knocking at the plaintiff’s door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.”3

      (2) Appropriation of Name or Likeness

        (a) One who appropriates to his own use or benefit the name or likeness of another.4

          (1) Note this privacy tort does not require the use for commercial purposes. The use of another’s name or likeness for personal purposes or benefits suffices.

      (3) Publicity Given to Private Life

        (a) Defendant gives publicity to a matter that concerns the private life of another;

        (b) The matter is publicized;

        (c) The publication is in a manner that would be “highly offensive” to a reasonable person; and

        (d) The matter is not one of legitimate public concern.5

      (4) Publicity Placing Person In False Light

        (a) Defendant gives publicity to a matter concerning another that places the other before the public in a false light;

        (b) The false light in which the other was placed would be highly offensive to a reasonable person; and

        (c) The defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.6

          (1) Note this claim is also applied in a similar analysis as a claim of defamation. It is not necessary for the false light to be defamatory, though it often is the case that defamation claims can also be encompassed by a False Light claim.

  3. Cases

    1. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525 (E.D. Pa. 1982)

      • Procedural Posture: Plaintiff appealed from summary judgment in favor of defendant on claims of libel and false light.
      • Law: Invasion of privacy (false light, publication of private facts), libel
      • (c) Facts: Plaintiff agreed to model nude in a bathtub for defendant, a professional photographer. When plaintiff asked defendant what his intentions were for use of the photo, defendant responded he planned to publish a book. Plaintiff did not respond. Several years later defendant sought to have this photo, among others, published in The Village Voice, a weekly newspaper. Defendant successfully published several photographs in the Voice, including plaintiff’s, with a caption underneath plaintiff’s photo indicating plaintiff’s name and “Model.” Plaintiff learned of the publication and filed a claim for invasion of privacy, including false light and publicity given to private facts, and a claim for libel.
      • Outcome: The court upheld the entry of judgment for defendant on the plaintiff’s claim for libel, noting the photograph of defendant was neither obscene nor suggestive of sexual promiscuity, and thus did not fall into the categories of defamation per se. The court similarly ruled on the false light claim, finding no “falsity” to the photograph of plaintiff bathing, and thus no indication that a reasonable person would be offended by similarly being photographed. The court did find that the plaintiff could proceed with her claims for publication of private facts, noting, “publication of a nude photograph of a private individual would normally meet the standards” of Restatement (Second) § 625D. As publication in the Voice exceeded the scope of consent plaintiff gave for use in defendant’s book, the defendant was precluded from relief on that claim. Additionally, the court found the photograph was not “newsworthy” and served no “legitimate purpose of disseminating news, and needlessly exposes aspects of the plaintiff’s private life to the public.”
      • Special Notes: the case concerned the dismissal of plaintiff’s claims on defendant’s motion for summary judgment. Thus, the court merely reversed the entry of judgment against plaintiff’s private facts claim, which would allow it to proceed to trial.
    2. Mallory v. S & S Publishers , 168 F. Supp. 3d 760, 769 (E.D. Pa. 2016)

      • Procedural Posture: Defendant moved to dismiss Plaintiff’s claims.
      • Law: defamation, invasion of privacy (false light)
      • Facts: Plaintiff brought suit against a former lover who had included descriptions of their relationship in a biography, and the biographer’s publishing company. Plaintiff claimed portions of the biography that included descriptions of the plaintiff as a “star seducer,” describing their relationship as “100 percent sexual,” and as a person who exchanged sexual activity for money, were defamatory, defamatory per se, and painted plaintiff in a false light.
      • Outcome: Plaintiffs alleged that defendants had stated “Plaintiff was essentially a venal whore whose relationship with [Defendant] was solely for money and professional advancement,” and that this was “not only untrue but additionally places Plaintiff in a false light when her own achievements as well as loving relationship with [Defendant] have been pleaded.” The court took these allegations as true, and denied dismissal of the false light claims. The court noted plaintiff sufficiently pled that the defendants made false statements that could be found highly offensive to a reasonable person. (For rulings on defamation claims, see below.)
  4. Practice Pointers

  • Defenses to claims of invasion of privacy under Pennsylvania law include the plaintiff giving consent to the invasive actions, or that the statements/activities being depicted are newsworthy.7

  • The statute of limitations for an invasion of privacy claim is one year.8 Claims interpreted by the court to concern a plaintiff’s right to property, such as claims of right to publicity, may be subject to a two year statute of limitation governing “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct.9

  1. See Facenda v. NFL Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa. 2007) (finding 42 Pa. Cons. Stat. § 8316 has absorbed the tort of misappropriation of identity); but see Lewis v. Marriott Int’l, Inc., 527 F. Supp. 2d 422, 429 (E.D. Pa. 2007) (hesitating to do same). 

  2. Restatement (Second) of Torts § 652B (1977). 

  3. Restatement (Second) of Torts § 652B (1977). 

  4. Restatement (Second) of Torts § 625C (1977). 

  5. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 529 (E.D. Pa. 1982); see also Restatement (Second) of Torts § 652D (1977). 

  6. Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1088 (E.D. Pa. 1980); see also Restatement (Second) of Torts § 652E (1977). 

  7. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 530 (E.D. Pa. 1982) (finding a picture printed in a magazine of plaintiff in a bathtub without her consent did not serve a “legitimate purpose of disseminating news”); but see Corabi v. Curtis Pub. Co., 273 A.2d 899, 918 (Pa. 1971). 

  8. Pa. Cons. Stat. § 5523(1). 

  9. Pa. Cons. Stat. § 5524(7).