In Florida, the right of privacy is defined as “the right of an individual to be let alone and to live a life free from unwarranted publicity” (see State Farm Fire & Cas. Co. v. Compupay, Inc. – 654 So.2d 944), where truth is not a defense. These claims are typically based on the publication of private facts that a reasonable person would find objectionable.
Invasion of privacy claims can arise from a variety of different situations, including the unauthorized use of someone’s name or likeness for trade or commercial purposes; a wrongful intrusion into private activities; and the public disclosure of private facts. Below, is a discussion of what constitutes an invasion of privacy in Florida, how you can protect your rights if you are facing one of these violations, and the damages that you may be able to recover if you have been subject to an invasion of your right to privacy.
The Necessity of Egregious or Outrageous Conduct
A claim of invasion of privacy requires a victim to show that the act was so outrageous and extreme in character, that it exceeds all bounds of decency. The standard for these claims is based on a reasonable individual with normal sensibilities. Meaning, a hypersensitive individual will not be protected. In Cape Publications, Inc. v. Bridges, 423 So. 2d 426, the court stated:
In determining the extent of the right to privacy, the standard by which the right is measured is based upon a concept of the person of reasonable sensibility; the hypersensitive individual will not be protected.
An invasion of the right of privacy occurs not with the mere publication of a photograph but occurs when a photograph is published where the publisher should have known that its publication would offend the sensibilities of a normal person, and whether there has been such an offense invasion of privacy is to some extent a question of law.
Invasion of privacy typically involves the publication of information to third parties that is considered personal and offensive. To prove a successful claim, a victim must show each of these four elements: (1) the publication, (2) of private facts, (3) that are offensive in nature, and (4) are not of public concern. If any of these elements are found missing, then the claim will not be successful.
However, there is an exception to this general rule, such as when the victim has been touched in an undesired or offensive manner. In these cases, a cause of action can arise even if no publication to the public or a large number of persons took place.
Quick Tip: To prevail on an invasion of privacy claim, there must be the publication of private material or matters to the public in general or to a large number of persons.
3 Categories of Wrongful Conduct That Violates Right of Privacy
Florida recognizes three categories of invasion of privacy claims: 1) Public disclosure of private facts, which occurs when confidential information about an individual is disseminated without their permission in a way that a reasonable person would find objectionable; 2) Intrusion which is where there is a physical or electronically intrusion into someone’s private quarters without authorization.; and 3) Appropriation which involves the unauthorized use of a person’s name or likeness to obtain some benefit. Appropriation is a statutory cause of action, whereas the first two categories are based upon common law.
Quick Tip: An action for invasion of privacy generally cannot be maintained after the death of the individual.
Public Disclosure of Private Facts
Under Florida law, another essential element of the tort of public disclosure of private facts is that the facts being disseminated are true. Thus, when the facts in question are not true, the cause of action is defamation and not an invasion of privacy. Invasion of privacy is a separate cause of action from defamation (libel or slander).
Invasion of Right of Privacy by Intrusion
A wrongful intrusion is an intrusion into one’s private activities, in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person. This cause of action includes physically or electronically intruding or invading a person’s home or other private quarters.
Under Florida law, a claim for intrusion does not require a publication but the intrusion must be highly offensive to a reasonable person with ordinary sensibilities.
Thus, to state a cause of action for invasion of privacy based on the defendant’s surveillance of the victim, the surveillance must be shown to have been carried out in a vicious and malicious manner not reasonably limited to a legitimate purpose. This tort can involve instances where there is an illegal search of an individual’s shopping bag in a store or when a neighbor installs a security camera that could see over a homeowners’ privacy fence (See Jackman v. Cebrink-Swartz, 334 So. 3d 653).
Invasion of The Right of Privacy by The Appropriation of Name or Likeness
Appropriation is the unauthorized use of a person’s name or likeness to obtain some benefit, like directly promoting a product or service. More generally, this is where there is commercial exploitation or misappropriation for a financial benefit, including for trade, commercial, or advertising purposes.
The elements of common law invasion of privacy based on commercial misappropriation is similar to the elements set for in Florida statute 540.08. The remedies provided under the statute are in addition to the remedies and rights of any person under the common law against the invasion of his or her privacy. Thus, a victim may assert statutory and common law claims for invasion of privacy in the same action without affecting the remedies available under common law.
Florida Statute 540.08 – Unauthorized Publication of Name or Likeness.
Florida’s commercial misappropriation statute prohibits the unauthorized use of a person’s name or likeness for trade, commercial, or advertising purposes.
According to the statute:
(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by:
(a) Such person; or
(b) Any other person, firm or corporation authorized in writing by such person to license the commercial use of her or his name or likeness; or
(c) If such person is deceased, any person, firm or corporation authorized in writing to license the commercial use of her or his name or likeness, or if no person, firm or corporation is so authorized, then by any one from among a class composed of her or his surviving spouse and surviving children.
The statute authorizes the issuance of an injunction to stop any wrongful action:
(2) In the event the consent required in subsection (1) is not obtained, the person whose name, portrait, photograph, or other likeness is so used, or any person, firm, or corporation authorized by such person in writing to license the commercial use of her or his name or likeness, or, if the person whose likeness is used is deceased, any person, firm, or corporation having the right to give such consent, as provided hereinabove, may bring an action to enjoin such unauthorized publication, printing, display or other public use, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.
Damages For Invasion of Privacy
A victim in an invasion of privacy lawsuit does not have to prove any special damages to recover compensation. Additionally, punitive damages can be awarded in Florida in a right to privacy lawsuit. However, where there are no actual damages, only nominal damages will be awarded. For example, in Cason v. Baskin – 30 So.2d 635 the Supreme Court of Florida held:
A consideration of the evidence as a whole, however, fails to show that plaintiff has offered any substantial evidence to show that she is entitled to any actual or compensatory damages. Her health has not been impaired—in fact she gained some twenty pounds in weight since the book was published. Plaintiff did testify that she had been teased about the book, and that she had discontinued the use of ‘Zelma,’ using the words ‘Miss Cason’ when she answered the telephone, and that she thought the publication of the book had upset her. There was no mental anguish—no loss of friends or respect in the community—no injury to character or reputation. The evidence fails to show any malice on the part of the defendant and fails to show that plaintiff has sustained any substantial injury.
Furthermore, when a victim only has nominal damages the victim is not entitled to punitive damages, and a victim has no right to share in the proceeds of the publication on the theory of unjust enrichment. (See Carson).
What Should You Do?
If you are the victim of a breach of your right to privacy, it is essential to understand how Florida law applies in order to recover compensation. To recover compensation, a plaintiff must prove the invasion of privacy was extreme enough in degree and outrageous in character to go beyond all possible bounds of decency.
A good piece of advice to ensure you have met your burden of proof and your rights are protected is to contact an experienced attorney with decades of experience helping clients get the justice they deserve.
Most attorneys who pursue invasion of privacy claims, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
Do You Have a Question? Contact Us Today.
Alan Sackrin is a Board-Certified Civil Trial Expert with over 40 years of experience handling claims for clients. He offers a free initial consultation (over the phone or in person) to answer your questions. When you’re ready to speak with an experienced lawyer about your case, contact Alan today or give him a call at 945-458-8655.
To learn more about Alan and his qualifications, see his about me page.