Study guide
18.5 Invasion of Privacy
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
18.5 Invasion of Privacy
Key Takeaways Explain This Topic AI
Appropriation requires unauthorised use of the plaintiff's name or likeness for the defendant's commercial advantage, subject to a newsworthiness exception.
Intrusion upon seclusion requires a prying into the plaintiff's private affairs that would be highly offensive to a reasonable person and needs no publication, but it does require a reasonable expectation of privacy, so photographing someone in a public place is generally not actionable.
False light requires publicity attributing to the plaintiff views or actions they do not hold, in a manner highly offensive to a reasonable person, and actual malice is required where the matter is of public interest.
Public disclosure of private facts requires publicity of private information that would be highly offensive and is not of legitimate public concern, and truth is no defense.
All privacy claims are personal, so they do not survive the plaintiff's death and cannot be asserted by family members or corporations.
Last updated: September 2026
Invasion of Privacy
Exam Snapshot: This section consolidates the dignitary torts of Invasion of Privacy , the property-focused actions of Private and Public Nuisance , and the core commercial action of Intentional Interference with Contractual Relations . On the California First-Year Law Students' Examination (FYLSE), examinees must master the four distinct invasion of privacy torts (mnemonic: ICAP ), remember that truth is no defense to public disclosure of private facts, distinguish private nuisance (protecting quiet use and enjoyment) from trespass to land (protecting physical possession), recognize that hypersensitive land uses cannot establish a nuisance, apply the special injury rule for individual public nuisance standing, and enforce the rule that the competitor's privilege never justifies inducing the breach of an existing valid contract.
1. The Four Invasion of Privacy Torts (Mnemonic: ICAP)
The common law recognizes four separate, distinct torts under the umbrella of invasion of privacy. Examinees should memorize the mnemonic ICAP ( Prosser & Keeton on Torts ; Restatement (Second) of Torts §§ 652A–652E ): [ I ] Intrusion Upon Seclusion
- [ C ] Commercial Misappropriation
- [ A ] Public Disclosure of Private Facts (Actionable True Facts)
- [ P ] False Light
- 1. Intrusion upon Seclusion
Elements: (1) Intentional physical, electronic, or visual intrusion, (2) into the plaintiff's private affairs, solitude, or seclusion, (3) that would be highly offensive to a reasonable person .
Examples: Wiretapping a private telephone line; installing a hidden camera in a bedroom, bathroom, or private hospital room; peering through residential windows with high-powered binoculars; opening another's private mail; hacking into private electronic devices or bank accounts.
Critical Bar Exam Rule: NO PUBLICATION IS REQUIRED! The tort is complete the instant the wrongful intrusion occurs. Disseminating or sharing the acquired information is completely unnecessary to establish liability.
2. Commercial Misappropriation (Right of Publicity)
Elements: (1) Unauthorized commercial use, (2) of the plaintiff's name, likeness, image, voice, or identity, (3) for the defendant's commercial advantage (typically in advertising, merchandise promotion, or trade).
The Newsworthiness Defense: The First Amendment protects unauthorized use of a person's name or likeness in news reporting, biographical books, documentary films, or public interest commentary. Liability attaches only where the identity is used for commercial advertising or promotional trade.
3. Public Disclosure of Private Facts
Elements: (1) Public disclosure (widespread publicity to the public at large, not merely a single third person), (2) of private, confidential facts concerning the plaintiff, (3) the disclosure of which would be highly offensive to a reasonable person , and (4) the matter is not of legitimate public concern (non-newsworthy) .
Examples: Posting a private citizen's confidential medical records, psychiatric diagnoses, embarrassing debt history, or intimate sexual photographs on a public website or social media platform.
THE GOLDEN FYLSE RULE: TRUTH IS NO DEFENSE! In public disclosure of private facts, the disclosures are 100% true. The tort redresses the unwarranted, humiliating exposure of confidential private truths.
4. False Light
Elements: (1) Public disclosure (widespread dissemination to the public), (2) of facts that place the plaintiff in a false light in the public eye, (3) that would be highly offensive to a reasonable person , and (4) fault (actual malice must be proven if the matter touches public interest).
False Light vs. Defamation:
Defamation protects reputation (must lower esteem in community); False Light protects peace of mind and dignitary tranquility (the false portrayal need not damage reputation, but must be highly offensive and misleading, e.g., falsely portraying a private artist as a starving, impoverished victim in an international magazine).
Defamation requires publication to only one third party; False Light requires widespread publicity to the public at large.
- II. Defenses and Limits Common to the Privacy Torts
- Consent
Consent is a complete defense to all four branches, and it operates like consent elsewhere in tort law: it is effective only to the extent given, and exceeding its scope revives liability. A model who consents to photographs for a product catalogue has not consented to their use in a political advertisement.
Newsworthiness and Legitimate Public Concern
Matters of legitimate public concern are protected. This defeats appropriation claims arising from news reporting and biography, and it is an outright element of public disclosure of private facts , which requires that the matter not be newsworthy. Courts read newsworthiness broadly, and it is not confined to hard news — human-interest stories, sports, and entertainment coverage generally qualify.
The Constitutional Overlay
Where the matter touches the public interest, the First Amendment imports the defamation standards into the privacy torts. False light requires proof of actual malice — knowledge of falsity or reckless disregard for the truth — in those cases. The absolute and qualified privileges applicable to defamation apply to false light as well.
Truth
Truth is a defense to false light, which by definition requires a false portrayal. Truth is emphatically not a defense to public disclosure of private facts, intrusion, or appropriation, all of which can be committed by accurate means.
III. Who May Sue
The privacy torts are strictly personal , and three limits follow:
No survival. The claim does not survive the plaintiff's death and cannot be brought by the estate.
No relational claims. Family members have no claim for an invasion of a relative's privacy, however distressing.
No corporate plaintiffs. A corporation cannot be defamed in this fashion or suffer an invasion of privacy, though it may have claims for defamation proper or for misappropriation of trade identity.
A limited exception has grown up around appropriation : many states now recognise a descendible, assignable right of publicity protecting the commercial value of a person's identity, which does survive death for a statutory period.
IV. Comparison Matrix
Tort Publicity required? Falsity required? Highly offensive? Truth a defense?
- Appropriation No No No No
- Intrusion upon seclusion No No Yes No
- Public disclosure of private facts Yes No Yes No
- False light Yes Yes Yes Yes
The two columns that resolve most questions are publicity and falsity. Intrusion needs no publication at all — the prying is the tort, so a defendant who photographs through a bedroom window and shows nobody is still liable. False light is the only branch requiring a falsehood, which is what separates it from public disclosure of private facts, where every word published is true.