Digital Media Law

Chapter 5:
Invasion of Privacy

Chapter 5 shifts from protecting reputations (defamation) to protecting individuals’ privacy. Unlike free speech, which is explicitly guaranteed in the Constitution, privacy rights have largely been developed through court decisions and state law. This chapter introduces the four main privacy torts — false light, public disclosure of private facts, appropriation/right of publicity, and intrusion upon seclusion — and explains how they intersect with media practices. It also examines how courts balance privacy with the public’s right to know, and how statutes add further protections in the digital age.

Key Concepts in this Chapter

Foundations of Privacy Law

  • Not expressly in the U.S. Constitution but recognized through constitutional “penumbras” (Griswold v. Connecticut).

  • Primarily creatures of state law; definitions and defenses vary by jurisdiction.

  • Increasingly supplemented by federal and state statutes (e.g., HIPAA, FERPA).

The Four Privacy Torts

False Light

    • Creates a misleading but not necessarily false impression.
    • Must be highly offensive to a reasonable person.
    • Requires actual malice (knowledge of falsity or reckless disregard), even for private plaintiffs.
    • Often overlaps with defamation but distinct in focus.

Public Disclosure of Private Facts

    • Truthful facts that should not be made public.
    • Must be “highly offensive” and not of legitimate public concern.
    • Facts must be truly private (not in public records or self-disclosed widely).
    • Newsworthiness often defeats the claim.

Appropriation & Right of Publicity

    • Unauthorized use of someone’s name, likeness, or identity.
    • Appropriation protects private individuals from emotional harm.
    • Right of Publicity protects celebrities/public figures’ economic interests.
    • Covers names, images, voices, signatures, etc.

Intrusion Upon Seclusion

    • Invasion into someone’s private affairs where they reasonably expect privacy.
    • Focuses on the act of intrusion, not on publication.
    • Common in hidden camera and surreptitious recording cases.

Defenses & Limitations

  • Consent.

  • Newsworthiness (especially in disclosure cases).

  • Public record rule: facts already public can be used.

  • Statutes of limitations and other procedural defenses.

Test Your Knowledge

1. One guiding principle shared by the GDPR and California’s CCPA is that:

 
 
 
 

2. The federal law that protects student education records and often frustrates journalists seeking school data is:

 
 
 
 

3. To prevail on a modern false‑light claim, a plaintiff—whether public or private—must generally prove the defendant acted with:

 
 
 
 

4. In a disclosure suit, the requirement of “publicity” means the information was:

 
 
 
 

5. Intrusion upon seclusion focuses primarily on which aspect of a defendant’s conduct?

 
 
 
 

6. First‑Amendment defenses are LEAST helpful in which privacy tort because the claim turns on the method of newsgathering rather than speech?

 
 
 
 

7. A defendant will NOT be liable for publishing private facts when the information concerns a matter of legitimate public concern. This defense is often called:

 
 
 
 

8. COPPA governs the online collection of personal information from children under what age?

 
 
 
 

9. Which privacy tort is most akin to defamation and therefore is not recognized as a separate cause of action in some states?

 
 
 
 

10. The 2024 bipartisan bill that would have created a uniform federal data‑privacy framework was titled the:

 
 
 
 

11. Which privacy tort protects the commercial value of an individual’s identity and is often described as a property right that can be licensed?

 
 
 
 

12. Which of the following is an element unique to intrusion upon seclusion (and NOT required for defamation)?

 
 
 
 

13. Which federal statute limits disclosure of protected health information by hospitals and other providers?

 
 
 
 

14. Which of the following is NOT an element of an appropriation/right‑of‑publicity claim?

 
 
 
 

15. Which privacy tort involves the publication of TRUE information that would be highly offensive to a reasonable person and is NOT of legitimate public concern?

 
 
 
 

16. Courts often decide whether an intrusion occurred by asking if the plaintiff had a reasonable expectation of privacy—a concept rooted largely in which constitutional amendment?

 
 
 
 

17. For a false‑light claim, disclosure must reach the public at large or a group so broad it is ‘substantially certain’ to become public knowledge. This requirement is called:

 
 
 
 

18. Which U.S. state enacted the pioneering Consumer Privacy Act (CCPA) and later the CPRA?

 
 
 
 

19. Which of the following is a factor California courts consider when deciding whether disclosed facts are newsworthy?

 
 
 
 

20. Using a celebrity’s likeness in an advertisement without permission most directly triggers which legal claim?

 
 
 
 

Ideas for Future Study

  • Digital Privacy Laws: Examine how state privacy statutes (like California’s CCPA) expand protections beyond tort law.

  • Balancing Test: Debate how courts should balance privacy rights with freedom of the press.

  • Celebrity Culture: Explore tensions between publicity rights and free expression in entertainment and advertising.

  • Social Media Privacy: How does self-disclosure online affect one’s ability to claim invasion of privacy?

  • International Perspectives: Compare U.S. privacy torts with Europe’s “right to be forgotten.”

Parting Thought

In a digital world where personal data and images are shared widely and quickly, should the law lean more toward protecting privacy or preserving free access to information? How would you draw that line?