Privacy Intrusion Causes of Action under Utah Law
Under Utah law, there are four personal injury privacy causes of action one may claim to recover from an individual for damages. Those privacy causes of action include libel and slander, false light, intrusion upon seclusion, appropriation of name or likeness, publicity given to private facts.
The Utah case of Stien v. Marriott Ownership Resorts, Inc., et al. gives a good outline as to the elements of all these causes of action. It does not discuss libel and slander and this topic will be addressed at another time.
The "false light" privacy tort provides that one is subject to liability to another for invasion of privacy if (1) he or she gives publicity to a matter concerning another that places the other before the public in a false light[; (2)] the false light in which the other was placed would be highly offensive to a reasonable person[;] and [(3)] the actor ha[d] 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.
Here, the element of knowledge or reckless disregard is a tall order to prove in this case. However, the courts have also found that only negligence is needed at times in certain cases involving private individuals. Also, the false light must be highly offensive to a reasonable person. It can't just be offensive, it must be highly offensive which again can be a tall order to prove in most instances.
INTRUSION UPON SECLUSION:
A cause of action based on an intrusion upon seclusion was recognized by this court in Turner v. General Adjustment Bureau, Inc., 832 P.2d 62 (Utah Ct. App.), cert. denied, 843 P.2d 1042 (Utah 1992). In Turner, we stated that, in order to establish a claim of intrusion upon seclusion, the plaintiff must prove two elements by a preponderance of the evidence: (1) that there was "an intentional substantial intrusion, physically or otherwise, upon the solitude or seclusion of the complaining party," and (2) that the intrusion "would be highly offensive to the reasonable person." Id. at 67. This holding comports with the view expressed in the Restatement. See Restatement (Second) of Torts 652B (1977).
Here, again, intentional intrusion is also a tall order to fill. It cannot be negligence and the individual must claim that it intruded on their solitude or seclusion. This may also be hard to prove in this day and age given that many individuals give up that solitude through social media. However, this could include things such as medical history, or if someone takes a picture or video of you in your backyard, the bathroom, bedroom, in your home (must be a fenced area hard to get for yard).
The key is intrusion, if someone is in a public place, then it would not apply which substantially limits to where this tort can take place. Nowdays with drones, this may actually increase the kinds of claims an individual may have here. Given that it must be highly offensive to the reasonable person, if the video is just someone washing their dishes or mowing their lawn or of a medical ailment not highly offensive, then an individual could not prevail. On other hand if it is something like a mother nursing or a parent changing a diaper, this is more likely to be a prevailing claim, however, each cases is still fact specific and one claim could prevail and one could fail under the specific factual nature.
APPROPRIATION OF NAME OR LIKENESS:
The second invasion of privacy tort alleged by plaintiff is the tort of appropriation of name or likeness for the benefit of another. This privacy tort was examined by the Utah Supreme Court in Cox v. Hatch, 761 P.2d 556 (Utah 1988). Cox requires the plaintiff to establish three elements: (1) appropriation, (2) of another's name or likeness that has some "intrinsic value," (3) for the use or benefit of another. Id. at 564.
This cause of action is related to intellectual property claims. Many famous individuals can use these claims when a company uses their name and likeness for commercial gain unlawfully. Private individuals can also have the same claim if they can prove that their name had some kind of value. If an individual for example owns a local company or is a employee with a company and another individual most likely with another company uses that name to gain customers, claiming that they know the person, work or have worked with the individual, ect or claiming that such company or employee endorses their product or has used their product. Also, if someone takes a picture of an individual or a video and makes money off that video or picture then that individual would also have a claim.
PUBLICITY GIVEN TO PRIVATE FACTS:
The third of the privacy torts is that of publicity given to private facts. Dean Prosser synthesized from the case law three elements for this tort:
(1) the disclosure of the private facts must be a public disclosure and not a private one; (2) the facts disclosed to the public must be private facts, and not public ones; and (3) the matter made public must be one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. Keeton et al., Prosser and Keeton on the Law of Torts 117, at 856-57 (5th ed. 1984)
This claim is similar to intrusion upon seclusion. However, what is lacking in this one is the intentional element. As a result, this claim is much easier to claim than the latter. The only showing needed is that the matter was made public. Also, the toughest part to prove is that it is highly objectionable to a reasonable person of ordinary sensibilities.
These causes of action can be used in addition and most likely are, to libel and slander claims. Libel and slander claims must be false statements of fact. So if there is an issue as to whether or not the statements were true or not, these causes of action can still allow an individual to recover for claims.
For full text of Stien v. Marriott Ownership Resorts, Inc., et al. is below:
At the center of this case is a videotape for which defendants are responsible, in which seventeen employees of defendant Marriott Ownership Resorts, Inc. (Marriott), whose properties include Summit Watch in Park City, describe in detail a household chore they hate doing. The video includes appearances by nine men and eight women, including plaintiff's husband, Brad Bauman. The video does not identify any of the employees by name, job title, or employment task.
Unbeknownst to Mr. Bauman, and apparently unbeknownst to the other sixteen participants, the videotape was edited to make it appear as if the employees were answering the question, "What's sex like with your partner?" The video, about five minutes and twenty seconds long, was then shown at a formal company Christmas party for the amusement of some 200 Marriott employees and their guests, including Bauman and plaintiff.
The video opens with a closeup of a picturesque pond, with classical music playing in the background. After a second or two, a female voice serenely states: "Recently, we asked a collection of people what they thought and felt about having sex with their partner. Let's listen to their comments."
Following this introduction, the video presents edited clips of the employees' earlier descriptions of a household chore. Each employee-participant appearing in the video is seated in a chair behind what appears to be a conference room table. A caption appears for the first few minutes at the side of the participant, reading: "What's sex like with your partner?" The first employee appearing on the video is male and comments: "Having to carry this huge thing down some stairs; and it's heavy and it smells real bad." Similarly, another male employee states that he "hate[s] doing it because it involves so much time and energy." A female employee states that "[i]t's one of those greasy grimy things that you just have to do at least once a year whether you want to or not." Still another female employee states that she "hate[s] something that has to be done everyday." Not all of the comments were negative. For instance, one female employee stated that she was "very tall" and therefore was "good at it."
Interspersed throughout the video are comments made by Bauman. His statements and descriptions are as follows:
The smell. The smell, the smell. And then you go with the goggles. You have to put on the goggles. And then you get the smell through the nose. And as you get into it things start flying all over the place. And the smell. And you get covered in these things.
. . . .
And you have to do it and you have to enjoy doing it. And you cannot--you can't--get into the idea that this is something that you don't want to do.
. . . .
But the smell gets worse and then it gets worse and then it gets worse.
. . . .
And then your biggest problem is you forget to remove this smell from the house and then you leave it there and then you come back and your wife uncovers the smell.
. . . .
But I've found that the goggles work very well because eye protection is a very important item.(2)
Once the employees' comments are concluded, the video returns to the scenic pond and accompanying background music which opened the video. The same female voice from the introduction concludes the video by stating: "So remember, we at Summit Watch are concerned about you achieving balance in your life. So let's make tonight the start of a productive and balanced new year."
Plaintiff did not appear in the video, nor is she ever mentioned by name, either by her husband, Mr. Bauman, or by any other participant. Nonetheless, plaintiff was not amused by the video. She and Bauman filed this lawsuit against Marriott and various individuals who had a hand in making the video, alleging that her privacy was invaded. Specifically, plaintiff alleged that defendants intruded upon her seclusion, appropriated her name and likeness for the benefit of Marriott, publicized private facts regarding plaintiff, and placed her in a false light. All defendants subsequently moved for summary judgment, which the court granted. In so doing, the trial court ruled, as a matter of law, that the elements constituting the four distinct torts of invasion of privacy coul