Privacy Chapter II – Your friendly neighborhood tortfeasor

by on Aug.12, 2009, under Constitutional Law, Torts

Vigilantes forgo the protections of working with the State allowing them to operate without many of the restrictions that accompany civil liberties. They are outside the system; the system doesn’t work; they have rejected the system to pursue their own justice. This freedom at the expense of their quarry is highlighted by a discussion of invasion of privacy. Unlike government actors, evidence obtained by a vigilante in violation of Constitutional protections is not excluded from trial, in fact, Constitutional protections are not even implicated without a government actor.

I can think of no more tenuous remedy than a private tort action against an individual of unknown identity or location but that is just what you’re left with if you feel your privacy has been invaded by a vigilante crime fighter. So what are these tort actions and what are your remedies against super tortfeasors?

In the 1890s the latest technology available to superheroes was the instant camera (one that didn’t require a subject to pose for 15 minutes to allow exposure of the film). The ability to take quick and candid photographs created privacy concerns previously unimaginable and caught the attention of lawyers Samuel D. Warren and Louis Brandeis. In an article for the Harvard Law Review, The Right to Privacy1, Warren and Brandeis laid the foundation for 4 modern privacy causes of action — public disclosure of private facts, invasion of privacy, false light, and appropriation. Because appropriation deals with using an individual’s name or likeness for commercial benefit, and almost no superheroes engage in commercial activity, this post will focus on the first three theories.

Public Disclosure of Private Facts

The elements of public disclosure are as follows:

  • Giving publicity to a matter of private concern,
  • That would be highly offensive to a reasonable person, and
  • Not of legitimate public concern.
  • The first requirement means that the information gathered has to be made public in some way; information obtained only for personal uses is not actionable under this theory. The second requirement can be satisfied in multiple ways by superheroes — information that relates to criminal activity is likely to be offensive if it is made public, additionally it would be highly offensive to publicize information that someone tried to keep private. What saves most crime fighters from liability under public disclosure is that their main avenue of publicity is turning information gathered over to authorities (sometimes along with a tied up criminal ready for trial) and any information relating to criminal activity is likely to be of public concern.

    Intrusion Upon Seclusion

    Intrusion is a similar tort to disclosure except that liability attaches at the point of obtaining private information rather than requiring publication; the invasion must also be objectionable to a reasonable person. The concept of a “reasonable expectation of privacy” discussed in last week’s post remains a useful measuring stick for seclusion. When a psychic reads your mind they are invading your private thoughts. A reasonable person would find this intrusion highly offensive because, as private thoughts, they have taken steps to keep the information private. Additionally the use of psychic abilities is very uncommon and a person would be justified in believing they were safe from such an invasion. The same rationale would also apply for hacking into computers, planting bugs, and x-ray vision.

    Intrusion has been interpreted to be broader in some situations than disclosure or the exclusionary rule for government actors. While a person’s activities in public are almost always unprotectable a remedy exists in intrusion upon seclusion when surveillance becomes “over-zealous.”2

    False Light

    False light arises when pictures or statements are presented in such a way as to imply something false or misleading that would be offensive to a reasonable person. The actual information used doesn’t have to be false so long as its use creates a false image to the observer.3

    We often see Spiderman taking pictures of criminals, which he sells to the Daily Bugle for some extra cash. If these pictures are taken in private areas, such as a villain’s hideout, Peter Parker may be liable for intrusion upon seclusion. (Peter could also be liable for pictures taken of victims and bystanders if taken in places where the subjects had a reasonable expectation of privacy like an ambulance or hospital.)4 If pictures are taken in public there would ordinarily be no remedy. However, the editor of the Daily Bugle, J. Jonah Jameson, is notorious for taking pictures of superheroes and attaching them to defamatory stories or headlines. Because Peter is aware of this habitual activity when he sells the photographs he could share liability for false light (he would also have his own claim against Jameson for captions about Spiderman as a criminal as well as an accomplice of numerous criminals).

    Because the pictures and stories that Jameson publishes in the Bugle are of public concern the courts have created additional requirements to bring a suit against the publisher. Some cases establish that to succeed against Jameson for false light a plaintiff would have to establish actual malice5 (knowledge that the information published was false), while others focus on the plaintiff’s status as either a private or public figure.6 Jameson has admitted on a number of occasions that the superheroes he defames are not guilty of what he claims so under either standard a judgment would likely result, however, average citizens and small-time criminals would have an easier case than superheroes and supervillians who would most certainly be public figures.

    Next week we’ll discuss superheroes and the theory of self-defense. A victim of an assault has a right to defend themselves but what right does a hero have to intervene? What right do they have to avenge?


    1 – Samuel Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

    2 – Nader v. General Motors Corp., 307 N.Y.S.2d 647 (N.Y. 1970)

    3 – Goodrich v. Waterbury Republican-Am., Inc., 188 Conn. 107, 448 A.2d 1317 (1982).

    4 – Schulman v. Group W Productions, Inc., 18 Cal. 4th 200 (1998).

    5 – Time, Inc. v. Hill, 385 U.S. 374 (1967).

    6 – Gertz v. Robert Welch, Inc., 418 U.S. 374 (1974).

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