N.J. Model Civil Jury Charge 3.14

3.14 INVASION OF PRIVACY (01/2016)

NOTE TO JUDGE

Invasion of privacy involves not one single tort, but is four distinct

kinds of invasion of four different interests of the plaintiff, which are

tied together by the common name. Otherwise they have almost

nothing in common except that each represents an interference with the

right of the plaintiff to be left alone. The four categories of invasion of

privacy are: (a) unreasonable intrusion upon the seclusion of another,

(b) appropriation of another’s name or likeness, (c) unreasonable

publicity given to one's private life and (d) publicity that normally

places another in a false light before the public. Brisbee v. John C.

Conover Agency, Inc. , 186 N.J. Super. 335, 339 (App. Div. 1982);

Restatement, Torts 2d, § 562A at 376 (1977).

1. False Light Invasion of Privacy1

NOTE TO JUDGE

There are differing interests protected by the law of defamation and the

law of privacy, which account for the substantive gradations between

these torts. The interest protected by the duty not to place another in a

false light is t hat of the individual's peace of mind, i.e., his or her

interest "in not being made to appear before the public in an

objectionable false light or false position, or in other words, otherwise

than as he is." Restatement (Second) of Torts § 652E, comment b. "The

action for defamation," on the other hand, "is to protect a person's

interest in a good reputation. . . ." As with the requirement in

defamation actions that the matter publicized be untrue, a fundamental

requirement of the false light tort is that the disputed publicity be in fact

false, or else "at least have the capacity to give rise to a false public

impression as to the plaintiff." Annotation, "False Light Invasion of

Privacy-Cognizability and Elements," 57 A.L.R. 4th 22, 104 (1987); see

Tellado v. Time-Life Books, Inc., 643 F.Supp. 904, 907 (D.N.J. 1986);

Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 766 (D.N.J. 1981);

Bisbee v. John C. Conover Agency, supra , 186 N.J. Super. at 342 ;

Restatement (Second) of Torts, § 652E, comment b. However, unlike a

defamation claim, it is not necessary in false -light actions that the

material that casts plaintiff in a false light also injure her standing in the

community. See Cibenko v. Worth Publishers, Inc., supra, 510 F.Supp.

at 766; Restatement (Second) of Torts § 652E, comment b.

1 It is accepted in New Jersey that a cause of action exists for invasions of privacy involving

"publicity that unreasonably places the other in a false light before the public." See, e.g.,

Faber v. Condecor, Inc., 195 N.J. Super. 81, 86-87 (App. Div.), certif. denied, 99 N.J. 178

(1984); Bisbee v. John C. Conover Agency, 186 N.J. Super. 335, 339 (App. Div. 1982);

N.O.C., Inc. v. Schaefer, 197 N.J. Super. 249, 253-54 (Law Div. 1984); Devlin v. Greiner,

147 N.J. Super. 446, 461-62 (Law Div. 1977); Palmer v. Schonhorn Enterprises, Inc., 96 N.J.

Super. 72, 75 (Ch. Div. 1967); DeAngelis v. Hill, 180 N.J. 1, 19 (2004); Durando v. Nutley

Sun, 209 N.J. 235, 249 (2012); Hornberger v. American Broad. Co., 351 N.J. Super. 577, 598

(2002).

The plaintiff alleges that the defendant has invaded (her/his) privacy by

placing (her/him) in a false light before the public. By this (s/he) means that the

defendant publicized material about (her/him) that is false and is such a major

misrepresentation of (her/his) character, history, activities or beliefs that a

reasonable person in the plaintiff’s position would either be expected to take

serious offense or be justified in feeling offended or aggrieved.

To recover on this claim, the plaintiff must prove, by a preponderance of the

evidence2:

(1) That the defendant gave publicity to a matter concerning the plaintiff that

was false;

(2) That the defendant either knew that that the publicized material was false

and would place the plaintiff in a false light or acted with reckless disregard

as to whether the publicized material was false and the false impression

created by the publicized matter;

(3) That the material so misrepresented the plaintiff’s character, history,

activities, or beliefs that a reasonable person in the plaintiff’s position would

find the material highly offensive; and

2 If the plaintiff is a public official, public figure, or where the plaintiff is a private person but the

publicity involves a matter of legitimate public concern, then the trial court should instruct the

jury that the plaintiff’s burden is “clear and convincing” evidence, not “preponderance of the

evidence.” Durando v. Nutley Sun, 209 N.J. 235, 253 (2009). See generally footnote 1 of the

“Public Defamation” instructions (Model Civil Charge 3.11A).

(4) That the publicity was the cause of the plaintiff’s injuries/damages/losses.

“Publication” or “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.3

3 Restatement, Torts 2d, § 652 D and E, comment (a).

2. Intrusion on Seclusion

NOTE TO JUDGE

Invasion of privacy by intrusion does not depend upon any publicity, or

communication to the public generally, nor does it require a physical

intrusion. Restatement (Second) of Torts § 652B, comment a. The gist

of the tort is interference with the plaintiff’s solitude, seclusion, or

private affairs and concerns, and this can occur by an unauthorized

entry to the plaintiff’s premises, electronic eavesdropping,

unauthorized opening of plaintiff’s mail, examining a private bank

account, or repeated hounding and harassment. Id. at comment b.

The plaintiff alleges that the defendant has invaded (her/his) privacy by

unreasonably intruding upon the plaintiff’s seclusion. By this (s/he) means that the

defendant’s interference with the plaintiff's seclusion is a substantial one, of a kind

that would be highly offensive to the ordinary reasonable person. To recover for

unreasonable intrusion on seclusion or solitude, the plaintiff must prove by a

preponderance of the evidence all of the following:

(1) That the defendant intentionally intruded or pried into the plaintiff’s

seclusion without permission from the plaintiff;

(2) That the intrusion was highly offensive to a reasonable person;

(3) That the matter or activities on which the defendant intruded was private;

and

(4) That the intrusion was the cause of the plaintiff’s injuries/damages/losses.

The plaintiff cannot recover on a claim of intrusion on seclusion if you find

that the defendant did not actually delve into the plaintiff's concerns, or where the

plaintiff's activities are already public or known.

Cases:

Bisbee v. John C. Conover Agency, 186 N.J. Super. 335, 339-40 (App. Div. 1982);

Rumbauskas v. Cantor, 138 N.J. 173 (1994); Castro v. NYT Television, 384 N.J.

Super. 601, 609 (App. Div. 2006).

3. Appropriation of Name or Likeness

The plaintiff alleges that the defendant has appropriated or used the

plaintiff’s name or likeness for a commercial purpose. By this (s/he) means that

the defendant was seeking to capitalize on the plaintiff’s likeness for a

predominantly commercial purpose and not for the dissemination of news or

information. To recover for the appropriation of one’s name or likeness, the

plaintiff must prove by a preponderance of the evidence all of the following:

(1) That the defendant used the plaintiff’s

[name/voice/signature/photograph/likeness] to advertise the defendant’s

business or product, or for some other commercial purpose;

(2) That the use did not occur in connection with the dissemination of news or

information, and was without a redeeming public interest or historical

value4;

(3) That the defendant did not have the plaintiff’s consent for the use; and

(4) That the use was the cause of the plaintiff’s injuries/damages/losses.

Cases:

Castro v. NYT Television, 370 N.J. Super. 282, 297 (App. Div. 2004); Faber v.

Condeco, Inc., 195 N.J. Super. 81 (App. Div.) certif. denied 99 N.J. 178 (1984);

N.O.C., Inc. v. Schaefer, 197 N.J. Super. 249 (Law Div. 1984); Restatement

(Second) of Torts § 652C.

4 Element 2 may be omitted if there is no question of fact with regard to this issue.

4. Publicity Given to Private Life

NOTE TO JUDGE

This form of invasion of privacy differs from defamation and false light

invasion of privacy in that false statements are not required. This tort

imposes liability for publicity given to true statements of fact. One who

gives publicity to a matter concerning the private life of another is

subject to liability to the other for invasion of his [or her] 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.

It is not an in vasion of the right of privacy to communicate a fact

concerning the plaintiff's private life to a single person or even to a

small group of persons. Romaine v. Kallinger, 109 N.J. 282, 297

(1988), Dzwonar v. McDevitt, 348 N.J. Super. 164 (App. Div. 2002).

Restatement (Second) of Torts § 652D (1977) (emphasis added). Also,

there is no liability for giving publicity to facts about the plaintiff's life

that are matters of public record. Romaine v. Kallinger, 109 N.J. 282,

297 (1988).

The plaintiff alleges that the defendant has given publicity to her/his private

life. By this (s/he) means that the defendant publicized material about (her/him) of

a private nature that a reasonable person in the plaintiff’s position would be

justified in feeling offended or aggrieved. Facts about the plaintiff's life that are

matters of public record are not of a private nature. To recover for publicity given

to her/his private life, the plaintiff must prove by a preponderance of the evidence

all of the following:

(1) That the defendant publicized information concerning the private life of

the plaintiff;

(2) That the defendant publicized the private information without the

plaintiff’s consent;

(3) That a reasonable person in the plaintiff’s position would consider the

publicity highly offensive;

(4) That the private information was not of legitimate public concern; and

(5) That the publication was the cause of the plaintiff’s

injuries/damages/losses.

“Publication” or “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.