Welcome to the website of the Digital Media Law Project. The DMLP was a project of the Berkman Klein Center for Internet & Society from 2007 to 2014. Due to popular demand the Berkman Klein Center is keeping the website online, but please note that the website and its contents are no longer being updated. Please check any information you find here for accuracy and completeness. Show An intrusion on seclusion claim is a special form of invasion of privacy. It applies when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another. In most states, to make out an intrusion on seclusion claim, a plaintiff must generally establish 4 elements: With respect to the first element of an intrusion claim -- intentional invasion into the private affairs of another -- courts generally require that the intrusion take the form of a "physical trespass." This can be met literally, by physically entering
onto private property, or by an electronic or optical intrusion, such as using zoom lenses or highly sensitive microphones to photograph or record a person who has a reasonable expectation of privacy. A court would consider this a "physical trespass" if your use of ultra-powerful or highly sensitive equipment was the only way you were able to obtain your information or recording. The second element requires that the actions giving rise to a claim must be offensive to a reasonable person.
This requires more than mere discomfort or embarrassment. For example, barging in on someone in the bathroom and photographing them using the facilities would be offensive to a reasonable person while taking a picture of them standing at the mirror combing their hair likely would not be offensive. The third element requires that the intrusion involve a private matter. Generally speaking, if you've intruded into someone's seclusion in a place they expect privacy (e.g., a bathroom or their
bedroom) or while they are engaged in an activity that most reasonable people would expect to be private (e.g., intimate contact with another) this element will be met. The fourth element requires that the intrusion must have resulted in mental anguish or suffering for the person whose privacy was invaded. This suffering can come from surprise, fright, or even anger at having been disturbed. In the case of surreptitious invasions, it can also come from the plaintiff finding out, after the fact, that his or her privacy has been invaded. The degree of anguish or suffering the plaintiff experiences will determine the amount of damages he or she is entitled to if the other elements of an intrusion claim are established. Keep in mind that consent is typically one of your strongest defenses to an intrusion claim. Consent can often be gained expressly, by someone specifically telling you that you can photograph or collect private information about them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment. If consent is required, however, you must obtain it from someone who is legally able to give it. Permission from a child or mentally handicapped person is unlikely to be valid; in those situations, you should seek consent from the appropriate parent or guardian. Each state has its own definition of what constitutes intrusion upon seclusion. You should consult the state sections listed below to determine whether your specific state recognizes intrusion on seclusion and, if so, how it defines what is necessary for a claim. (Note that the guide does not include every state at this time.) Jurisdiction:
Subject Area:
Return to Privacy Module II Restatement of the Law, Second, Torts, � 652 Copyright (c) 1977, The American Law Institute � 652B Intrusion Upon Seclusion Comments: � 652C Appropriation of Name or Likeness One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy. Comments: � 652D Publicity Given to Private Life Special Note on Relation of � 652D to the First Amendment to the Constitution. This Section provides for tort liability involving a judgment for damages for publicity given to true statements of fact. It has not been established with certainty that liability of this nature is consistent with the free-speech and free-press provisions of the First Amendment to the Constitution, as applied to state law through the Fourteenth Amendment. Since 1964, with the decision of New York Times Co. v. Sullivan, 376 U.S. 254, the Supreme Court has held that the First Amendment has placed a number of substantial restrictions on tort actions involving false and defamatory publications. These restrictions are treated in Division Five of this Restatement. See especially �� 580A, 580B and 621. The Supreme Court has rendered several decisions on invasion of the right of privacy involving this Section and � 652E. The case of Cox Broadcasting Co. v. Cohn (1975) 420 U.S. 469, holds that under the First Amendment there can be no recovery for disclosure of and publicity to facts that are a matter of public record. The case leaves open the question of whether liability can constitutionally be imposed for other private facts that would be highly offensive to a reasonable person and that are not of legitimate concern. Pending further elucidation by the Supreme Court, this Section has been drafted in accordance with the current state of the common law of privacy and the constitutional restrictions on that law that have been recognized as applying. Comments: a. Publicity. The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. "Publicity," as it is used in this Section, differs from "publication," as that term is used in � 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public. Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication. Which of the following is at the core of many examples of Hypernorms?Included as examples of hypernorms are freedom of speech, the right to personal freedom, the right to physical movement, and informed consent. In fact, individual privacy is at the core of many of these basic, minimal rights and is, arguably, a necessary prerequisite to many of them.
Which of the following is a true statement regarding the European Union's privacy directive?Which of the following is true about the European Union's Directive on Personal Data Protection? It prohibits EU firms from transferring personal information to a non-EU country unless that country maintains "adequate protections" of its own.
Which of the following acts stipulates that employers Cannot use protected health information?HIPAA stipulates that employers cannot use “protected health information” in making employment decisions without prior consent.
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