What tort protects a person from being photographed in the bathroom?
The tort of invasion of privacy likely would apply in this situation. Invasion of privacy refers to a collection of causes of actions designed to protect a person's "right to be let alone." Born in the late nineteenth century, this tort actually consists of four different types: (1) intrusion, (2) public disclosure of private facts, (3) false light, and (4) appropriation.
Intrusion applies when a tortfeasor unreasonably intrudes on a person's physical privacy by following them, photographing them, or opening their private mail. Public disclosure of private facts occurs when a person discloses material of a person's personal private life that is not of legitimate concern to the public. This tort differs from defamation, because the tortfeasor can be sued for the disclosure of even true information. False light refers to placing a person in a false light in a manner that would be highly offensive to a reasonable person. Let's say a television program ran a program on the problems of street prostitution and featured stock footage of a woman walking down the street. That woman may have a claim for false light, claiming that the placement of the footage falsely implied she was a prostitute. The final type of invasion of privacy is appropriation, which refers to the use of a plaintiff's name or likeness for financial gain without permission.
How did the invasion of privacy tort originate?
Invasion of privacy has a very unusual beginning—a law review article. Boston lawyer Samuel Warren became upset that some of the local press reported about the conduct of Warren's wife at Beacon Hill parties. Warren believed that the press should not be allowed to write about such private matters. He asked his law partner and former Harvard law classmate Louis Brandeis (a future United States Supreme Court Justice) to draft an article arguing for a right of privacy.
Brandeis and Warren published their article "A Right to Privacy" in the 1890 edition of the Harvard Law Review. They argued that the law should protect a person's right to be let alone. They warned:
Photographing people in the bathroom is a gross invasion of privacy under tort law (iStock).
Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."... Of the desirability — indeed of the necessity — of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual.
Courts at first were reluctant, fearing that there would be too many frivolous lawsuits of dubious character. However, gradually the courts began to recognize invasion of privacy. Today nearly every state recognizes all four privacy sub-torts in its common law.
The paparazzi are often despised by celebrities because they intrude on personal lives. Sometimes, these actions can reach the point of being considered illegal, despite laws protecting freedom of the press (iStock).