that a reasonable person would object to having made public. The information must be both true and reasonably construable as private (e.g., a person’s height would be less private than an account of his sexual past). In addition, the disclosure must be public—disclosure to a small number of people or those with a legitimate need to know does not count as public. Disclosure in the form of a movie that reveals someone by name is public; discussion among a group of acquaintances is not. Finally, the disclosure must not be newsworthy—thus making publication about the private lives of celebrities fair game. In an information age context, publication of a non-celebrity’s personal information on a publicly accessible Web page is largely uncharted territory.

  • Misappropriation of name or likeness—Unauthorized use of an individual’s picture or name for commercial advantage. The misappropriation tort applies if and when a person’s name, likeness, or identity is used without his or her permission for trade or advertising purposes. The misappropriation tort relates to information privacy, but only insofar as it deals with a particular kind of use of a certain kind of personal information.

  • False light—Publication of objectionable, false information about an individual. The intent of this tort is to protect people against being cast in a false light in the public eye. For example, this tort would apply when someone’s photograph is publicly exhibited in a way or a context that creates negative inferences about him. The false light tort has been found applicable when people have been wrongly associated with juvenile delinquents or drug dealing, for example. Of the four privacy torts, the false light tort is least applicable to informational privacy, since it deals with false information.

The 1964 Restatement of the Law of Torts (a clarification and compilation of the law by the American Law Institute) adopted the Prosser framework.7 Together, these torts provide a basis for privacy suits against the disclosure, without consent, of embarrassing false information about a person, or of intimate details or images from a person’s private life, or unauthorized use for profit or commercial gain of an individual’s image, likeness, voice, or reputation.

As a matter of practice, these privacy torts have not been used much to protect the information-age privacy of individuals. However, the principles behind these torts are useful reminders of some of the interests that privacy is designed to protect against—intrusion into personal affairs and disclosure of sensitive personal information, among others.

As a historical matter, the Warren-Brandeis article may not fully

7

American Law Institute, Restatement of the Law of Torts, Philadelphia, 1964.



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