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35 The states of Arkansas, Alabama, California, Dela- ware, Indiana, Iowa, Michigan, Minnesota, Missouri, New Jersey, South Carolina, Texas, Vermont, and Washington and the District of Columbia are among the jurisdictions that recognize a common law right to privacy. However, New York492 and Virginia493 do not recognize a common law right to privacy.494 Some courts have adopted the Restatement of Torts (Second) as the basis for an action for an invasion of privacy.495 Michigan courts, which have âlong recog- nized the common law tort of invasion of privacy,â496 camera system activates automatically when a bus is turned on. Its equipment is secure because operators are unable to activate or deactivate the system.483 IX. REMEDIES AT COMMON LAW FOR INVASION OF PRIVACY A. States That Recognize an Invasion of Privacy at Common Law In the absence of constitutional or statutory reme- dies, a victim of an alleged invasion of privacy must rely on tort law.484 As stated, a government-owned transit agency may have sovereign immunity to tort claims in some states.485 For example, in Laba, supra, one of the issues was whether under the Illinois Local Governmental and Governmental Employees Tort Immunity Act486 the plaintiffs could seek indemnifi- cation from the CTA for any tort judgment or settle- ment for compensatory damages for which the CTA or an employee acting within the scope of his employ- ment is liable.487 Because there was no exception in the Act that allows a plaintiff to seek indemnification from the CTA, the court dismissed the claim.488 In Trujillo, supra, the defendants argued that one defendant was âprotected under California Govern- ment Code Â§ 820.2 because his decision to conduct covert surveillance in the locker room was pursuant to discretion vested in him as a detective.â489 Section 820.2 states, Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discre- tion vested in him, whether or not such discretion be abused. A discretionary act requires a conscious balancing of risks and advantages when making basic policy decisionsâ¦.490 The court held that the defendants had not shown that the detectiveâs decision to implement covert video surveillance was an exercise of discretion rather than a routine decision on how to proceed with an investigation.491 Although there were no cases located for the digest in which a court held a transit agency liable for an invasion of privacy for conducting public video surveil- lance, at least fourteen states and the District of Columbia recognize a right to privacy at common law. 483 See Appendix C, transit agenciesâ responses to ques- tion 21(a) and (b). 484 Douma & Deckenbach, supra note 122, at 295. 485 See LRD 71, supra note 317, at 43. 486 745 ILCS 10/1-101â745 ILCS 10/9-107 (2017). 487 Laba, 2015 U.S. Dist. LEXIS 70758, at *17. 488 Id. at *18. 489 Trujillo, 428 F. Supp. 2d at 1122. 490 Id. at 1123. 491 Id. 492 See Burck v. Mars, Inc., 571 F. Supp. 2d 446, 450 (S.D. N.Y. 2008). Although New York does not have a common law right to privacy, there is a statutory right to privacy against commercial appropriation. See also, Lohan v. Perez, 924 F. Supp. 2d 447, 453 (E.D.N.Y. 2013); Allison v. Clos- Ette Too, 14 Civ-1618, 2014 U.S. Dist. LEXIS 143517, at *1 (S.D.N.Y. Sept. 15, 2014), report and recommendation adopted sub nom., 2014 U.S. Dist. LEXIS 143066, at *1 (S.D.N.Y. Oct. 7, 2014); and Hunt v. Conroy, 1:13-CV-1493, 2014 U.S. Dist. LEXIS 52305, at *1 (N.D.N.Y. Apr. 16, 2014). 493 Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 612 (E.D. Va. 2005). 494 See Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1533 (1983) (âSince 1948, beginning with the case of Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948), Alabama has recognized the tort of âinvasion of the right to privacy.ââ (citations omitted)); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (Ark. 1997); Metter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 95 P.2d 491 (1939); Peay v. Curtis Pub- lishing Co., 78 F. Supp. 305 (D.D.C. 1948); State v. Holden, 54 A.3d 1123 (Del. Super. Ct. 2010); Davis v. General Finance & Thrift Corp., 80 Ga. App. 708, 57 S.E.2d 225 (1950); Conti- nental Optical Co. v. Reed, 119 Ind. App. 643, 86 N.E.2d 306 (1949); Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 76 N.W.2d 762 (1956); Tate v. Womanâs Hops. Found., 56 So.3d 194 (La. 2011); Dalley v. Dykema Gossett, PLLC, 287 Mich. App. 296, 788 N.W.2d 679, 686 (2010) (quot- ing Lewis v. LeGrow, 258 Mich. App. 175, 670 N.W.2d 675 (2003)); Meyerkord v. Zipatoni Co., 276 S.W.3d 319 (Mo. App. 2008); Frey v. Dixon, 141 N.J. Eq. 481, 58 A.2d 86 (1948); Hol- loman v. Life Ins. Co., 192 S.C. 454, 7 S.E.2d 169 (1940); Rus- sell v. American Real Estate Corp., 89 S.W.3d 204 (Tex. App. 2002); Pion v. Bean, 2003 VT 79, 833 A.2d 1248 (2003); and Mayer v. Huesner, 126 Wash. App. 114, 107 P.3d 152 (2005). 495 Eric S. Pasternack, âHIPAA in the Age of Electronic Health Records,â 41 rutGerS l. J. 817, 831 n.102 (2010), hereinafter referred to as âPasternackâ (citing Thomas J. Smedinghoff, âThe Emerging Law of Data Security: A Focus on the Key Legal Trends,â 934 Practising Law Institute 13, 22 (2008)). See Dwyer v. Am. Express Co., 273 Ill. App. 3d 742, 652 N.E.2d 1351 (1995) (holding that based on the Restate- ment (Second) a credit card issuerâs compilation of a custom- erâs personal information and dissemination of customer lists to third parties was not a breach of privacy), appeal denied, 165 Ill. 2d 549, 165 Ill. 549, 662 N.E.2d 423 (1996)) and Lewis v. LeGrow, 258 Mich. App. 175, 188, 670 N.W.2d 675, 685 (2003) (stating that â[t]he Legislature has not defined what constitutes an invasion of privacy, but when interpreted in light of the common-law right to privacy, it is clear that it includes keeping sexual relations privateâ). 96 Dalley v. Dykema Gossett, PLLC, 287 Mich. App. 296, 307, 788 N.W.2d 679, 686 (2010) (citing Lewis v. LeGrow, 258 Mich. App. 175, 670 N.W.2d 675 (2003)).
36 media.â501 For a claim to be actionable, the disclosure must have revealed, for instance, ââunpleasant or disgraceful or humiliating illnessesâ or âhidden physi- cal or psychiatric problems.ââ502 In Yunker v. Pandora Media, Inc.,503 the court dismissed plaintiffâs claims for public disclosure of private facts and intrusion upon seclusion, discussed below, because Pandoraâs disclo- sure or use of his PII was not âoffensive or objection- able to a reasonable person or highly offensive.â504 In Lake v. Wal-Mart Stores Inc.,505 concerning the publication of nude photos by Wal-Mart employees, the court stated: Lake and Weber allege in their complaint that a photograph of their nude bodies has been publicized. Oneâs naked body is a very private part of oneâs person and generally known to others only by choice. This is a type of privacy interest worthy of protection. Therefore, without consideration of the merits of Lake and Weberâs claims, we recognize the torts of intrusion upon seclusion, appropriation, and publi- cation of private facts. Accordingly, we reverse the court of appeals and the district court and hold that Lake and Weber have stated a claim upon which relief may be granted and their lawsuit may proceed.506 However, a tort action for public disclosure of private facts is unlikely to succeed if an injury caused by a disclosure is minimal.507 C. Claims for Misappropriation or False Light Because they are mentioned in the Restatement, privacy claims for misappropriation or false light will be noted briefly. For a plaintiff to make a claim for misappropriation or false light, a plaintiff âs infor- mation must have been revealed to the public by the media, the same element that is usually required for a claim for a public disclosure of private facts.508 D. Intrusion Upon Seclusion Another cause of action for invasion of privacy is for intrusion upon seclusion, a tort that does not require a showing that a disclosure was made to the general public.509 In an Arkansas case, the court observed that have relied on William Prosserâs four bases on which a claim in tort may be made for an invasion of privacy: â(1) the intrusion upon anotherâs seclusion or soli- tude, or into anotherâs private affairs; (2) a public disclosure of private facts about the individual; (3) publicity that places someone in a false light in the public eye; and (4) the appropriation of anotherâs like- ness for the defendantâs advantage.â497 For a common law privacy claim, the defendantâs conduct must have been intentional, as mere negli- gence ordinarily will not suffice. Moreover, in some states, a violation of privacy must have been the result of âwillful or outrageousâ conduct. For exam- ple, a federal court in California dismissed a plain- tiff âs privacy claim in part because there was no showing that the defendantâs disclosure of the plain- tiff âs data was ââsufficiently serious in its nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.ââ498 There are four potential bases for a claim in tort for an invasion of privacy that may apply to an unauthorized use or disclosure of personal data: public disclosure of private facts, misappropriation, false light, and intrusion upon seclusion.499 Not all states that allow a claim for invasion of privacy recognize all four types of claims. B. Public Disclosure of Private Facts Although some states recognize âthe tort of invasion of privacy based on [an] unreasonable public disclo- sure of private facts,â500 most jurisdictions require that a disclosure of personal information must have been made to the general public, âusually through the 501 Ayres, supra note 499, at 995 (stating that a recovery in tort for an invasion of privacy is limited as the disclo- sure or communication must be made âto the public at largeâ); see Pritts, supra note 500, at 331. 502 Pasternack, supra note 495, at 833 (citation omitted). 503 Yunker, 2013 U.S. Dist. LEXIS 42691, at *1 (N.D. Calif. 2013). 504 Id. at *45. 505 582 N.W.2d 231, 235 (Minn. 1998). 506 Id. 507 Pasternack, supra note 495, at 833 508 Ayres, supra note 499, at 998, 1000. 509 See Restatement (Second) Â§ 652(B). See also, Reid v. Pierce County, 136 Wash. 2d 195, 206, 961 P.2d 333, 339â 40 (1998). 497 Lewis v. LeGrow, 258 Mich. App.175, 193, 670 N.W.2d at 687 (citing Beaumont v. Brown, 65 Mich. App. 455, 461 (1975)); See William Prosser, Privacy, 48 cal. l. reV. 383, 389 (1960)). See also, Ross v. Trumbull County, 2001 Ohio App. LEXIS 495, at *1 (Feb. 9, 2001). 498 Yunker v. Pandora Media, No. 11-CV-03113, 2013 U.S. Dis. LEXIS 42691, at *40â41 (citation omitted). 499 Restatement (Third) of Torts. See Martha Tucker Ayres, Confidentiality and Disclosure of Health Informa- tion in Arkansas, 64 ark. l. reV. 969, 994 (2011) (footnote omitted), hereinafter referred to as âAyres.â 500 Joy L. Pritts, Altered States: State Health Privacy Laws and the Impact of the Federal Health Privacy Rule, 2 yale J. health Polây l. & ethicS 327, 331 & n.26 (citing, inter alia, Ozer v. Borquez, 940 P.2d 371, 377 (Colo. 1997) (stating that â[t]he requirement of public disclosure con- notes publicity, which requires communication to the public in general or to a large number of persons, as distinguished from one individual or a fewâ) (2002)), hereinafter referred to as âPrittsâ; Lake v. Wal-Mart Stores Inc., 582 N.W.2d 231, 235 (Minn. 1998) (establishing a common law right to pri- vacy in Minnesota including the torts of âintrusion upon seclusion, appropriation, and publication of private factsâ).