In addition to statutory privacy protections under Georgia criminal law, Georgia has adopted the four forms of invasion of privacy set forth in Restatement (Second) of Torts § 652A (1977). There is also a right to privacy in the Georgia Constitution, under Chapter 1, Article 1, which states “no person shall be deprived of life, liberty, or property except by due process of law.”1 Although the courts have held that the right of privacy guaranteed by the Georgia Constitution is far more extensive than that protected by the United States Constitution, the constitutional right has applied mostly in the context of allegedly unlawful searches and seizures (with or without a warrant) and improper subpoenas.2 This constitutional right is not relevant as an independent cause of action for victims.
However, depending on the circumstances of a particular case, a WMC victim could potentially allege four types of common law invasions of privacy (appropriation, intrusion, publicity, or false light). There is limited Georgia case law on these types of claims that are relevant to WMC victims, but a few cases have addressed invasion of privacy claims involving harassment, and are useful guides to use for claim construction.
(1) Appropriation of Likeness
(a) An appropriation of plaintiff’s likeness or image without his or her consent;
(b) Resulting harm to the plaintiff; and
Resulting benefit to the defendant.3
(2) Intrusion on Seclusion
(a) A substantial interference with plaintiff’s solitude - either as to her person or as to her private affairs or concerns; and
(b) The interference would be highly offensive to a reasonable person.4
(3) Public Disclosure of Private Life
(a) Public disclosure;
(b) Facts are private, secluded or secret facts and not public ones; and
(c) The interference would be highly offensive to a reasonable person or ordinary sensibilities under the circumstances.5
(4) False Light
(a) Defendant publicizes a matter concerning plaintiff that places plaintiff in a false light;
(b) Defendant acts with reckless disregard as to the truth or falsity of the publicized matter, and the false light in which the plaintiff would be placed; and
(c) The false light in which plaintiff was placed would be highly offensive to a reasonable person.6
- Cabaniss v. Hipsley, 151 S.E.2d 496 (Ga. Ct. App. 1966)
- Procedural Posture: Defendant appealed from a judgment of liability for invasion of privacy.
- Law: Invasion of privacy (intrusion upon plaintiff’s seclusion, appropriation, false light, and disclosure of private facts)
- Facts: Plaintiff brought an action against a magazine after the magazine used photographs taken of her performing her dancing act. The defendant alleged the magazine had obtained a copy of a photograph (depicting her in little clothing) she had taken to send out to exotic dance clubs before performances without her consent and published it in advertisements inviting persons to the Atlanta Playboy club and using a stage name that was not hers. In reality, defendant had not appeared at the Atlanta Playboy club or used that stage name. The jury found in favor of the plaintiff that she had suffered damages from the invasion of privacy and awarded $15,000 in damages. The defendants appealed the verdict.
- Outcome: The court reversed the judgment after analyzing the various rights of privacy. Under the theories of public disclosure of embarrassing private facts and intrusion into seclusion, the court found that the facts disclosed in the picture were not private, secluded or secret because she had given the photograph to other clubs and her photograph was routinely put on advertising for such clubs.7 Under the theory of false light, the court found that there was no falsity or fiction revealed, except for the fact that she was appearing at the Atlanta Playboy club, which “does not authorize a verdict for general damages for injury to plaintiff’s reputation or to her sensibilities.”8 Finally, the court found that the defendant’s image had been exploited without her consent, but that the damages sought in this case were not what could be awarded under this theory, because there was no proof of the advertising value of the photograph. The damages awarded had all been related to injury to feelings, sensibilities, and reputation under the other theories of privacy, so the court reversed the judgment.9
- Special Notes: The court here focused on the fact the plaintiff had publicly disclosed the nude images to the public before in refusing to award damages. The court suggests recovery could be available under an “appropriation” theory if a quantifiable commercial benefit to the defendant can be shown.
- Troncalli v. Jones, 514 S.E.2d 478 (Ga. Ct. App. 1999)
- Procedural Posture: Appeal from judgment awarding plaintiff damages.
- Law: Invasion of privacy (intrusion into seclusion), Stalking (see other sections), IIED (see other sections)
- Facts: The defendant intentionally brushed up and touched victim’s breasts and then followed her in his car, made threatening gestures, put his mouth on her neck, followed her again, and came to her house and knocked loudly on her door. The plaintiff brought claims for intentional infliction of emotional distress and invasion of privacy. The trial court denied the defendant’s motion for directed verdict.10
- Outcome: The court affirmed the trial court’s denial of the defendant’s motion for a directed verdict related to privacy. Specifically, the court explained that this type of behavior was “clearly proceeding” under the category of intrusion into the defendant’s private affairs.11 The defendant’s actions were unwanted, uninvited, and unwarranted intrusions upon the plaintiff’s seclusion.12
- Special Notes: This court notes that there are four loosely related by distinct torts that a court will consider for invasions of privacy. If a WMC victim has had private information disclosed he or she should analyze the elements of each type of invasion of privacy to bring an action against the wrongdoer.
- Elmore v. Atlantic Zyre, Inc., 341 S.E.2d 905 (Ga. Ct. App. 1986)
- Procedural Posture: Plaintiff appealed grant of summary judgment for defendant store owners.
- Law: Invasion of privacy (seclusion, peeping tom)
- Facts: An individual arrested and charged with sodomy brought an invasion of privacy action after store owners observed sexual activity occurring behind the door of a closed stall. The plaintiff alleged that the defendants had invaded his privacy by spying on him in a private place. The trial court granted summary judgment for the defendant store owners. Plaintiff appealed.
- Outcome: The court affirmed the grant of summary judgment. Although it acknowledged that an action for invasion of privacy may be based upon an intrusion into one’s private affairs or seclusion, the court explained that the privacy interests of the individual must be balanced with the interests of store owners to prevent criminal activity. The court stated that “the right of privacy is not absolute, but it must be kept within its proper limits.”13 Here, the toilet stall was a restroom provided by the store for its customers, and the store owners were investigating a customer complaint. The court concluded “plaintiff’s interest in privacy was subordinate to the defendant’s interest in providing crime-free rest rooms for its customers, and there existed sufficient cause for suspicion of criminal activity to justify any intrusion which occurred.”14
- Hudson v. Montcalm Publishing Corporation, 379 S.E.2d 572 (Ga. Ct. App. 1989)
- Procedural Posture: Plaintiff appeals from grant of summary judgment.
- Law: Invasion of privacy (intrusion upon seclusion)
- Facts: Plaintiff’s ex-husband submitted a nude photograph of his ex-wife that he had taken during their marriage to defendant publisher for an erotic photo contest. The ex-husband said he was the photographer and listed her personal information on the accompanying entry blank and model release, but plaintiff had not in fact consented to the photo’s publication or release. After obtaining the falsified release from the publisher, plaintiff then sued the magazine and her ex-husband for failing to obtain her permission to disclose the photograph. The action alleged that the photograph and corresponding caption invaded her privacy.15 The trial court denied the defendant’s motion for summary judgment that had argued that the statute of limitation had run. Defendant appealed, alleging that the statute of limitations should be one year rather than two years.
- Outcome: The court affirmed the judgment, holding that a two year statute of limitation exists under Ga. Code. Ann. § 9-3-33 for injuries to person.16 Defendant had argued that the one-year statute of limitation for injuries to reputation should apply, but the court found that plaintiffs had pled injury in the form of feelings and mental anguish, which is an injury to the “person” under Georgia law.
- Cabaniss v. Hipsley, 151 S.E.2d 496 (Ga. Ct. App. 1966)
- All four forms of the invasion of privacy tort (intrusion, appropriation, publicity, and false light) have been addressed in Georgia’s jurisprudence. The cases provided above demonstrate that common law invasion of privacy claims can be brought under a number of overlapping theories.
- Georgia does not require physical intrusion into a person’s home or private space to establish a claim of invasion of privacy (surveillance of plaintiff is sufficient).17
- If the injury occurred more than one year prior to suit, take care in pleading the claimed injuries, as reputational injuries are barred after one year, but mental anguish and the like are not.
Ga. Const. Chap. 1, art. 1. ↩
See Cabaniss v. Hipsley, 151 S.E.2d at 501. ↩
Id. at 505. ↩
Troncalli v. Jones, 514 S.E.2d at 482. ↩
Elmore v. Atlantic Zyre, Inc., 341 S.E.2d at 905. ↩
Id. at 907.[/fn[
- Special Notes: The court emphasized that the right of privacy is qualified and “there are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.”Id. at 906. ↩
Hudson v. Montcalm Publishing Corporation, 379 S.E.2d at 572. ↩
Id. at 576 ↩