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On Behalf of | Sep 6, 2018 | Firm News

We have been discussing at length the issues with the advent of the internet, blogging, social and digital media, widespread negative postings, and how the content of communications on the internet are of quite concern to many.

Our federal legislature enacted the  “Communications Decency Act of 1996” the “CDA,” and in California we have the Anti-SLAPP statute codified in  Code Civ. Proc., §425.16 et seq. designed to protect “free speech” under the U.S. Constitution, First Amendment and also under the State of California Constitution.

How do internet postings and publications affect an individual’s right to privacy?  This article will discuss the tort of invasion of privacy and how it relates to internet publications.

The right of privacy is recognized in California, and an invasion of the right by appropriation of name, likeness, or personality is an actionable tort.  Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819.

As explained in Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 227 (Shulman), in addition to a tort cause of action for invasion of privacy, which can be pled on a number of different factual bases, there is also a separate constitutionally based cause of action for invasion of privacy. (Cal. Const., art. I, § 1; Shulman, supra, 18 Cal.4th at pp. 214, fn. 4, 227.) The Supreme Court stated that the two sources of protection for privacy, common law and the state Constitution, are not unrelated.

Specifically, the Supreme Court explained that none of its prior decisions suggested that “the conceptual framework developed for resolving privacy claims under the California Constitution was intended to supplant the common law tort analysis or preclude its independent development.” (Ibid.)

Constitutional Right to Privacy.

The California Constitution, as amended by the voters in 1972, protects the right of privacy of California citizens. (Cal. Const., art. I, § 1.) This “inalienable” right encompasses privacy protections broader than those recognized by the federal constitution. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 327-328.) The amendment gives rise to a cause of action for invasion of privacy against either the state or private individuals. (See White v. Davis (1975) 13 Cal.3d 757, 775; Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 242.) The elements of the claim are “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) Privacy interests are recognized in maintaining a reputation as a law abiding person, where there is no sufficient justification for publicizing old criminal information about a person. (Shulman, supra, 18 Cal.4th at pp. 219-222.)

Common Law Right to Privacy

a. Disclosing Personal Information Tort. 

The plaintiff who seeks to recover damages from a defendant who has disclosed to the public personal information about the plaintiff ordinarily must plead and prove:

1. The matter disclosed was purely private, i.e., not available to the public, either generally or by way of public record. Cox Broad. Corp. v Cohn (1975) 420 US 469, 43 L Ed 2d 328, 95 S Ct 1029; Forsher v Bugliosi (1980) 26 Cal.3d 792, 808, 163 Cal.Rptr. 628; Gill v Hearst Publ’g Co. (1953) 40 Cal.2d 224, 253 P2d 441.

2. The disclosure was “to the public in general or to a large number of persons as distinguished from one individual or a few.” Porten v University of San Francisco (1976) 64 Cal.App.3d 825, 828, 134 Cal.Rptr. 839; see Virgil v Time, Inc. (9th Cir 1975) 527 F2d 1122, 1126.

3. The matter disclosed was “offensive and objectionable to a reasonable [person] of ordinary sensibilities.” Forsher v Bugliosi, supra, 26 Cal.3d 809, 163 Cal.Rptr. 628.

4. The disclosure was not of a matter of legitimate public concern (i.e., it was not newsworthy). Diaz v Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 188 Cal.Rptr. 762; see Virgil v Time, Inc. (9th Cir 1975) 527 F2d 1122, 1129 (the requirement is met when the disclosure complained of constituted “morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern”).

This “public disclosure” tort is described in Restatement (Second) of Torts §652D (1977) as follows: “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.”

The First Amendment does not, however, permit the imposition of invasion of privacy liability on a media defendant’s publication of facts obtained from public official records of a criminal proceeding, even one concerning a felony conviction many years earlier. Gates v Discovery Communication, Inc. (2004) 34 Cal.4th 679, 21 Cal.Rptr.3d 663 (television documentary about person who, since serving prison term, had lived obscure, lawful life and become respected member of community). The Gates court overruled its own prior decision that an actionable privacy violation could occur through the reckless, offensive, injurious publication of true but not newsworthy information about the criminal past of a rehabilitated convict. See Justice Kennard’s concurring opinion in Shulman v Group W Prods., supra, 18 Cal.4th 246, 74 Cal.Rptr.2d 843, citing Cox Broad. Corp. v Cohn (1975) 420 US 469, 496, 43 L Ed 2d 328, 350, 95 S Ct 1029, 1047, which said that “the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official records.”

In Gates, the court expressly overruled Briscoe v Reader’s Digest Ass’n (1971) 4 Cal.3d 529, 93 CR 866 (the identification of a plaintiff in an article about long-past crimes). Of questionable precedentiary validity is Melvin v Reid (1931) 112 Cal.App. 285, 297 P 91 (the use of a plaintiff’s name, after she had reformed, in connection with unsavory incidents in her earlier life). See also Conklin v Sloss (1978) 86 Cal.App.3d 241, 150 Cal.Rptr. 121 (a crime committed 20 years earlier); Michaels v Internet Entertainment Group, Inc. (CD Cal 1998) 5 F Supp 2d 823, 839 (the newsworthiness privilege did not prevent celebrity couple from advancing the right to privacy claim to bar distribution on Internet of videotape depicting them engaged in sex).

Lack of newsworthiness is an essential element of a cause of action based on a publication’s giving unwanted publicity to allegedly private aspects of a person’s life. Shulman v Group W Prods., supra, 18 Cal.4th 200, 74 Cal.Rptr.2d 843 (summary judgment for the defendant was proper because a television broadcast regarding an automobile accident in which plaintiffs (mother and son) were injured had subject matter of legitimate public concern). Thus, even if the material published is offensive, it is not actionable if it is newsworthy. Kapellas v Kofman (1969) 1 Cal.3d 20, 35, 81 Cal.Rptr. 360 (the children of candidate for public office could not recover for disclosure of their conduct, recorded on police blotter); Sipple v Chronicle Publ’g Co. (1984) 154 Cal.App.3d 1040, 1046, 201 Cal.Rptr.  665. See also Taus v Loftus (2007) 40 Cal.4th 683, 715, 54 Cal.Rptr.3d 775 (there was no liability for stating actual initials of “Jane Doe” during a deposition given weeks after she had revealed her full name in her complaint in a separate suit); Beruan v French (1976) 56 Cal.App.3d 825, 128 Cal.Rptr. 869 (a candidate for public office has no right of privacy as to truthful information that may be relevant to his or her qualifications for office); Carlisle v Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 20 Cal.Rptr. 405 (there was no cause of action in favor of person closely related to public figure).

In determining whether the private facts are covered by the privilege for reporting private but newsworthy information, the court must balance (1) the social value of the facts published, (2) the depth of the intrusion into ostensibly private affairs, and (3) the extent to which a party voluntarily acceded to a position of public notoriety. Michaels v Internet Entertainment Group, Inc., supra, 5 F Supp 2d 841.

The publishing of a photograph taken in a public place does not ordinarily invade the privacy of the persons depicted (see Gill v Hearst Publ’g Co., supra, 40 Cal.2d 224, 253 P2d 441), but juxtaposing the photograph with text that reveals, or suggests, embarrassing information about the persons may invade their privacy. See M.G. v Time Warner, Inc. (2001) 89 Cal.App.4th 623, 631, 107 Cal.Rptr.2d 504 (a photo showing a little league team accompanied by text about sexual molestation of minors). See also Gill v Curtis Publ’g Co., supra, 38 Cal.2d 275, 239 P2d 630 (a photo of pair spooning at an ice cream parlor accompanied by text relating depicted conduct to “wrong kind” of love).

b. False Light Tort.

Comment (a) to Restatement Second of Torts, section 652D states that “publicity” “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.” This point has been placed in brackets because it may not be an issue in every case.

As reflected in the citations below, false light claims are subject to the same
constitutional protections that apply to defamation claims. Thus, a knowing
violation or reckless disregard for the plaintiff’s rights is required where the
plaintiff is a public figure or the subject matter of the communication is a matter of public concern. If a false light claim is combined with a defamation or libel claim, the standard applied in the instructions should be equivalent.

If a plaintiff has combined a false light claim with a claim of defamation or libel, the court should consider whether separate instructions on each claim should be given in light of Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1385, fn. 13 [88 Cal.Rptr.2d 802] and Briscoe v. Reader’s Digest Assn. (1971) 4 Cal.3d 529, 543 [93 Cal.Rptr. 866, 483 P.2d 34].

Restatement Second of Torts, section 652E provides:

One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion
of his privacy, if (a) the false light in which the other was placed would be highly
offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in  which the other would be placed.

“California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn.
(1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633],
internal citation omitted.)

“In order to be actionable, the false light in which the plaintiff is placed must
be highly offensive to a reasonable person. Although it is not necessary that the
plaintiff be defamed
, publicity placing one in a highly offensive false light will
in most cases be defamatory as well.” (Fellows v. National Enquirer (1986) 42
Cal.3d 234, 238–239 [228 Cal.Rptr. 215, 721 P.2d 97], internal citation
omitted; Emphasis added.)

“When a false light claim is coupled with a defamation claim, the false light
claim is essentially superfluous, and stands or falls on whether it meets the
same requirements as the defamation cause of action.” (Eisenberg, supra, 74
Cal.App.4th at p. 1385, fn. 13, internal citations omitted.)

“[A] ‘false light’ cause of action ‘is in substance equivalent to . . . [a] libel
claim, and should meet the same requirements of the libel claim . . . including
proof of malice.’ ” (Briscoe, supra, 4 Cal.3d at p. 543, internal citation

“The New York Times decision defined a zone of constitutional protection within
which one could publish concerning a public figure without fear of liability.
That constitutional protection does not depend on the label given the stated
cause of action; it bars not only actions for defamation, but also claims for
invasion of privacy.” (Reader’s Digest Assn., Inc. v. Superior Court (1984) 37
Cal.3d 244, 265 [208 Cal.Rptr. 137, 690 P.2d 610], internal citations omitted.)

In Time, Inc. v. Hill (1967) 385 U.S. 374 [87 S.Ct. 534, 17 L.Ed.2d 456], the
Court held that the New York Times v. Sullivan malice standard applied to a
privacy action that was based on a “false light” statute where the matter
involved a public figure. Given the similarities between defamation and false
light actions, it appears likely that the negligence standard for private figure
defamation plaintiffs announced in Gertz v. Robert Welch, Inc. (1974) 418 U.S.
323 [94 S.Ct. 2997, 41 L.Ed.2d 789] should apply to private figure false light

Plaintiffs must comply with the retraction statute (Civ. Code, § 48a) to recover more than special damages in a false light cause of action. (Briscoe, supra, 4 Cal.3d at p. 543.)

“We hold that whenever a claim for false light invasion of privacy is based on
language that is defamatory within the meaning of section 45a, pleading and
proof of special damages are required.” (Fellows, supra, 42 Cal.3d at p. 251.)

Statutory Invasion of Privacy – California Civil Code § 3344.

California Civil Code § 3344 provides in pertinent part:

3344. Use of Another’s Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.

(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

See Eastwood v. Superior Court, (1983) 149 Cal.App. 409, 198 Cal.Rptr. 342:

This California appellate decision allowed actor Clint Eastwood to state a right of publicity cause of action  under California common law and Civil Code Section 3344 against The National Enquirer magazine. Eastwood, 198 Cal.Rptr. at 344-345.

“A common law cause of action for appropriation of name or likeness may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) the lack of consent; and (4) resulting injury.” Id. at. 347.

Once again, California’s Ant-SLAPP statue Code Civ. Proc., §425.16 et seq. would come into play by defendants.

 In Taus v. Loftus supra, 40 Cal.4th 683, the plaintiff filed an action against defendants, challenging defendants’ activities in investigating, publishing, and thereafter publicly discussing their articles and investigation.  The complaint asserted that defendants improperly had invaded plaintiff’s privacy and committed other tortious conduct by investigating plaintiff’s background and discovering and disclosing information concerning her private life without her consent.

Defendants responded by filing special motions to strike the complaint pursuant to California’s anti-SLAPP statute (Code Civ. Proc., § 425.16), asserting that the complaint sought to impose liability upon them for actions that were undertaken in furtherance of their constitutional right of free speech. The trial court denied the motions in large part, concluding that the bulk of plaintiff’s claims should be permitted to go forward. On appeal, the Court of Appeal held that most of the claims set forth in the complaint should be dismissed under the anti-SLAPP statute, but also concluded that the suit could proceed with regard to four aspects of defendants’ conduct that were challenged in the complaint.   Defendants sought review in the Supreme Court.  The Supreme Court.where the plaintiff alleged that “defendants employed fraudulent means to obtain private information from plaintiff’s relatives, including misrepresenting their identity and befriending plaintiff’s biological mother.” Taus, supra, 40 Cal.4th at p. 701.

The Taus court then struck all allegations except those relating to obtaining private information by fraudulent means. Id. at p. 742.

See also Robert’s Legal Articles, When is “Posting” on the Internet “Defamation?”;  A Look at the “Communications Decency Act of 1996” § 230; & Analysis of California’s Anti-SLAPP Law.

Robert Rodriguez, Attorney at law

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.