MISCELLANEOUS TORTS

Held, for P. D has violated P’s common law right of publicity, by appropriating P’s “identity.” It does not matter that D has not appropriated P’s name or “likeness.” The right of publicity will be deemed to have been violated whenever a person’s “celebrity value” is exploited by the defendant, regardless of the means by which this is done.

(But a dissent argues that the majority’s opinion is a “classic case of overprotection,” and that courts should not make it tortious to simply “remind the public of a celebrity” or to simply “evoke the celebrity’s image in the public’s mind.”) White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992).

C. Intrusion:  The plaintiff may sue if his solitude is intruded upon, and this intrusion would be “highly offensive to a reasonable person.” Rest. 2d, §652B.

1. Must be private place:  This “intrusion upon seclusion” branch of invasion of privacy is triggered only where a private place is invaded. Thus if the defendant takes the plaintiff’s picture in a public place, this will normally not be enough.

a. Wiretaps and electronic surveillance:  The use of wiretaps and other kinds of secret electronic surveillance equipment will generally constitute an intrusion into a “private place.”

Example 1:  P, consumer advocate Ralph Nader, plans to publish a book attacking the safety of automobiles manufactured by D (General Motors). In order to stop P from doing so, D harasses P by making threatening phone calls, conducting surveillance of P in public places, interviewing P’s acquaintances, having women accost P with illicit proposals, tapping P’s phone, and eavesdropping on P with electronic equipment. P sues D for invasion of privacy.

Held, P has a cause of action for invasion of privacy, but only for the wiretapping and electronic eavesdropping. “[T]he mere gathering of information about a particular individual does not give rise to a cause of action for [invasion of privacy]. Privacy is invaded only if the information sought is of a confidential nature and the defendant’s conduct is unreasonably intrusive.” Nader v. General Motors Corp., 255 N.E.2d 765 (N.Y. 1970).

Example 2:  Suppose that P and D are roommates at college; they share a suite, but each has his own small bedroom. D hides a web-cam in P’s room, and uses it to stream video on the Internet of P having sex with X. P (as well as X) will have a claim against D for the intrusion-on-solitude branch of invasion of privacy: the use of hidden electronic equipment to monitor P’s private space is an intrusion that would be “highly offensive to a reasonable person.”