Restatement
of the Law, Second, Torts, § 652
Copyright (c) 1977, The American Law Institute
§
652B Intrusion Upon Seclusion
One who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or
his private affairs or concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.
Comments:
a. The form of invasion of privacy covered by this Section
does not depend upon any publicity given to the person whose interest is
invaded or to his affairs. It consists solely of an intentional interference
with his interest in solitude or seclusion, either as to his person or as to
his private affairs or concerns, of a kind that would be highly offensive to a
reasonable man.
b. The invasion may be by physical intrusion into a place
in which the plaintiff has secluded himself, as when the defendant forces his
way into the plaintiff's room in a hotel or insists over the plaintiff's
objection in entering his home. It may also be by the use of the defendant's
senses, with or without mechanical aids, to oversee or overhear the plaintiff's
private affairs, as by looking into his upstairs windows with binoculars or
tapping his telephone wires. It may be by some other form of investigation or
examination into his private concerns, as by opening his private and personal
mail, searching his safe or his wallet, examining his private bank account, or
compelling him by a forged court order to permit an inspection of his personal
documents. The intrusion itself makes the defendant subject to liability, even
though there is no publication or other use of any kind of the photograph or
information outlined.
§ 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:
a. The interest protected by the rule stated in this
Section is the interest of the individual in the exclusive use of his own
identity, in so far as it is represented by his name or likeness, and in so far
as the use may be of benefit to him or to others. Although the protection of
his personal feelings against mental distress is an important factor leading to
a recognition of the rule, the right created by it is in the nature of a
property right, for the exercise of which an exclusive license may be given to
a third person, which will entitle the licensee to maintain an action to
protect it.
b. How invaded. The common form of invasion of
privacy under the rule here stated is the appropriation and use of the
plaintiff's name or likeness to advertise the defendant's business or product,
or for some similar commercial purpose. Apart from statute, however, the rule
stated is not limited to commercial appropriation. It applies also when the
defendant makes use of the plaintiff's name or likeness for his own purposes
and benefit, even though the use is not a commercial one, and even though the
benefit sought to be obtained is not a pecuniary one. Statutes in some states
have, however, limited the liability to commercial uses of the name or
likeness.
§ 652D Publicity Given to Private Life
One
who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of his privacy, if the matter
publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
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.