First Amendment Handbook [Back to contents page] [RCFP Home Page]

Invasion of privacy

Almost every state recognizes some right of privacy, either by statute or under common law. Most state laws attempt to strike a balance between the individual's right to privacy and the public interest in freedom of the press. However, these rights often clash.

The concept of a right to privacy was first articulated in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren. It took U.S. courts 15 more years to recognize it. The Georgia Supreme Court was the first to do so in Pavesich v. New England Life Insurance Co.,¹ a case involving the use of an individual's photograph in a newspaper advertisement without his permission.

Invasion of privacy is considered a personal tort, aimed at protecting the individual's feelings — feelings often articulated by courts as "reasonable expectations of privacy." Corporations ordinarily cannot claim a right of privacy, and surviving heirs generally cannot file suit on behalf of a decedent.²

Public figures have a limited claim to a right of privacy. Past and present government officials, political candidates, entertainers and sports figures are generally considered to be public figures. They are said to have exposed themselves to scrutiny voluntarily and to have waived their right of privacy, at least in matters that might have an impact on their ability to perform their public duties.

Although private individuals usually can claim the right to be left alone, that right is not absolute. For example, if a person who is normally not considered a public figure is thrust into the spotlight because of her participation in a newsworthy event, her claims of a right of privacy may be limited.

A right of privacy can be violated by any means of communication, including spoken words. This tort is usually divided into four categories: intrusion, publication of private facts, false light and misappropriation.

Notes

1. Pavesich v. New England Life Insurance Co., 50 S.E. 68 (Ga. 1905).

2. But see, e.g., Reid v. Pierce County, 961 P.2d 333 (Wash. 1998) (finding protectable privacy interest held by relatives of persons whose autopsy photographs were distributed in the community).

Next section: Invasion of privacy: Intrusion