Under the United States Constitution, our founding fathers understood that the protection of the most basic human rights were fundamental in the creation of a new free nation.  This belief lead them to install language of the 1st Amendment which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This part of the 1st Amendment, placed early in their drafting, was drafted to ensure that the government and its people would understand the degree to which these rights should be protected. However, throughout the course of time, the meaning and protections under this provision have been expanded and restricted to various degrees as other amendments, has been found to have competing interests under the law.  This has led to an ever-evolving legal battle leaving many questions as to which right outweighs the other under the law.

Traditionally the Press has enjoyed a significant amount of protection under the 1st Amendment as long as they lawfully obtained their information and the material that they are publishing have some public significance. But in more recent years, private individuals have been able to prevail in successful tort claims against the Press. Such torts include things like defamation and invasion of privacy.

Defamation is when you falsely damage someone’s character. The 2 types of defamation are libel and slander. Slander is oral defamation while libel is written defamation.

Invasion of privacy is when you invade someone else’s right of privacy and then you are liable for whatever harm results to them. The four most common invasion of privacy torts are:

  • Intrusion Upon Seclusion
  • Disclosure of Private Facts
  • False Light
  • Appropriation of Name or Likeness

Someone commits Intrusion Upon Seclusion when they intentionally invade the privacy of one and they are subject to liability if that intrusion is “highly offensive to a reasonable person.” It does not have to be a physical intrusion.

For Disclosure of Private Facts, someone is subject to liability for that invasion of privacy if it is “highly offensive to a reasonable person” and “not of legitimate concern to the public.” You cannot recover for this tort if the facts are available as a public record.

For False Light, someone is subject to liability for invasion in a false light if “that false light is highly offensive to a reasonable person” and “the actor had knowledge or acted in reckless to the false light.” While defamation and false light are similar, defamation requires a “reputational” harm while false light is much broader and does not require “reputational” harm. You cannot recover damages for both defamation and false light.

For Appropriation of Name or Likeness, “one who appropriate to their use or benefit the name or likeness of another is subject to liability for invasion of privacy.”  The most common way this tort is committed is if someone’s name or likeness was used for a commercial purpose.