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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.
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