- Privacy torts allow individuals to sue for violations of their privacy
- Four types of privacy torts: private facts, intrusion, false light, appropriation
- Primarily used to protect individuals against invasion of privacy by other private actors, not the government
One set of privacy rights is established by statutory and common law. Legislative bodies have passed laws providing specific forms of protection against encroachments on our privacy, and certain fundamental notions of privacy are rooted in the legal traditions that have evolved over time largely through the rulings of the courts. These sorts of privacy protections are called torts. A tort is a wrong or injury caused by an individual for which the victim can seek compensation. Some torts are also crimes, and the person committing the tort can be prosecuted in a criminal court. But most torts are not crimes; instead they are defined as "a civil wrong, other than contract violation, done by one party to another party."12 Their primary purpose within the legal system is to provide individuals with the legal tools they need to sue others and seek damages when they believe that they have been wronged by others. Privacy torts, more specifically, provide individuals with the legal tools they need to seek damages when they feel that someone or something has violated their privacy.
Legal scholars generally break privacy torts into one of four types: private facts, intrusion, false light, and appropriation. A private facts tort involves the public disclosure of private facts about an individual that the public has no right or need to know. An intrusion tort involves the highly offensive intrusion upon the privacy or solitude of a person. The intrusion can be physical—for example, an uninvited entry into a person's home—but wiretapping and eavesdropping have also been recognized as forms of intrusion. False light torts involve the publication of false and offensive representations of people. And appropriation torts involve the use of someone's name or image without their approval.
While legal scholars agree on these basics definitions, they do not agree on the value of privacy torts within the legal system. Some argue that they are ambiguous and hard to prove in court. For example, one of the basic standards for winning a privacy suit is demonstrating that the violation was "highly offensive to an average person," a vague standard to say the least. Others say privacy torts are unnecessary as they overlap with other, less ambiguous torts. For example, intrusion looks a lot like trespass, an older, more easily defined tort. Still others complain that privacy torts often clash with more fundamental guarantees, such as the freedom of the press. We look at this sort of conflict in Story 1.
Regardless of the validity of these charges, privacy torts are the most common tools used by individuals seeking recourse when they believe another person has violated their privacy. The privacy rights granted by the Constitution, on the other hand, provide protections only against governmental encroachments on our privacy.