Invasion of Privacy was first recognized as a tort in 1890. It was later refined in 1960 by Dean William L. Prosser who explained that invasion of privacy is not one tort but actually is four tied together by the common name but nothing in common with each other except the interference with the right of the person.
The four categories of invasion of privacy are 1) unreasonable intrusion upon the seclusion of another (“intrusion”); 2) publicity that unreasonably places another in a false light before the public (“false light”); 3) unreasonably publicity given to another’s private life (“disclosure”); and appropriation of another’s name or likeness (“appropriation”). As of the date of drafting this article, Colorado however only recognizes number 3 and 4.
A “disclosure” violation is present when unreasonable publicity is given to one’s private life when facts that are actually private are disclosed. So don’t leave a private love letter in a public area as you may not have an reasonable expectation of privacy. However having a conversation recorded in that same public place by secret means is another story. Think peeping tom when thinking invasion of privacy – “disclosure.”
A “appropriation” violation is when someone appropriates to their own use the name or likeness of another. Common examples of this tort would be a photograph or video of a private moment going “viral” or using someone’s likeness without permission. Another use of this cause of action could be to remedy an identity theft. Of course actually finding someone to sue for identity theft is the exception and not the rule.
There are of course defenses to the invasion of privacy defense. For example, if someone identity is appropriated in connection with reporting the news or for commentary the first amendment trumps the liability. That said, the appropriation must bear some sort of reasonable relationship to the news or commentary, otherwise this defense won’t work. Then there is consent and matters of public record among others.
If your privacy has been invaded or your identity stolen give us a call so we can discuss whether or not you have a case. Remember as with all lawsuits, you must be able to prove damages and more importantly, collect. Suing someone who is uncollectable may be throwing good money after bad.
