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40 âlong recognized the common law tort of invasion of privacy,â549 have relied on William Prosserâs four bases on which a claim in tort may be made for an invasion of privacy: â(1) the intrusion upon anoth- erâs seclusion or solitude, or into anotherâs private affairs; (2) a public disclosure of private facts about the individual; (3) publicity that places someone in a false light in the public eye; and (4) the appropriation of anotherâs likeness for the defendantâs advantage.â550 Although New York551 and Virginia552 do not recognize a common law right to privacy, Arkansas, Alabama, California, Delaware, the District of Columbia, Indiana, Iowa, Michigan, Minnesota, Missouri, New Jersey, South Carolina, Texas, Vermont, and Washington are among the jurisdic- tions that do recognize a right to privacy at com- mon law.553 7. Miscellaneous Provisions Nevadaâs statute on the Security of Personal Information provides for a right of action by the data collector, rather than a right of action against the data collector.544 The Wisconsin statute provides only that when there is an unauthorized acquisition of personal information, the â[f]ailure to comply with this section is not negligence or a breach of any duty, but may be evidence of negligence or a breach of a legal duty.â545 VIII. REMEDIES AT COMMON LAW FOR INVASION OF PRIVACY A. States that Recognize an Invasion of Privacy at Common Law The disclosure of private facts when a disclosure would be offensive and objectionable to a reasonable person may give rise to an action in tort for an inva- sion of privacy.546 Although a violation of the right to privacy may create a cause of action, a plaintiff must meet the elements of the tort to maintain a claim.547 As discussed in Section IX.A, even if an individual alleges a privacy claim at common law against a transportation agency, in some states the agencies would have sovereign immunity. Some courts have adopted the Restatement of Torts (Second) as the basis for an action for an invasion of privacy.548 Michigan courts, which have 544 Nev. Rev. sTaT. Â§ 603A.900 (2015) (stating that â[a] data collector that provides the notification required pursu- ant to Nev. Rev. sTaT. Â§ 603A.220 may commence an action for damages against a person that unlawfully obtained or benefited from personal information obtained from records maintained by the data collectorâ and recover damages, reasonable costs of notification, reasonable attorneyâs fees and costs, and punitive damages when appropriateâ). 545 Wis. sTaT. Â§ 134.98(4) (2015). 546 Opperman v. Path, 87 F. Supp. 3d 1018, 1062 (N.D. Cal. 2014). 547 Ruffin-Steinback v. De Passe, 82 F. Supp. 2d 723, 734 (E.D. Mich. 2000) and Rycroft v. Gaddy, 281 S.C. 119, 124, 314 S.E.2d 39, 43 (1984). 548 Eric S. Pasternack, HIPAA in the Age of Electronic Health Records, 41 RUTgeRs L.J. 817, 831 (2010) [hereinafter Pasternack] (citing Thomas J. Smedinghoff, The Emerging Law of Data Security: A Focus on the Key Legal Trends, 934 pRacTisiNg LaW iNsTiTUTe 13, 22 (2008)). See Dwyer v. Am. Express Co., 273 Ill. App. 3d 742, 652 N.E.2d 1351 (Ind. App. Ct. 1995) (holding that based on the Restatement (Second) a credit card issuerâs compilation of a customerâs personal information and dissemination of customer lists to third par- ties was not a breach of privacy) and Lewis v. LeGrow, 258 Mich. App. 175, 188, 670 N.W.2d 675, 685 (Mich. Ct. App. 2003) (stating that â[t]he Legislature has not defined what constitutes an invasion of privacy, but when interpreted in light of the common-law right to privacy, it is clear that it includes keeping sexual relations privateâ). 549 Dalley v. Dykema Gossett, PLLC, 287 Mich. App. 296, 788 N.W.2d 679, 686 (Mich. Ct. App. 2010) (citing Lewis v. LeGrow, 258 Mich. App. 175, 670 N.W.2d 675 (2003)). 550 Lewis v. LeGrow, 258 Mich. App. 175 at 193, 670 N.W.2d at 687 (citing William Prosser, Privacy, 48 caL. L. Rev. 383, 389 (1960)). See also Ross v. Trumbull County, 2001 Ohio App. LEXIS 495, at *1 (2001). 551 See Burck v. Mars, Inc., 571 F. Supp. 2d 446, 450 (S.D. N.Y. 2008). Although New York does not have a common law right to privacy, there is a statutory right to privacy against commercial appropriation. See also Lohan v. Perez, 924 F. Supp. 2d 447, 453 (E.D.N.Y. 2013); Allison v. Clos-Ette Too, 2014 U.S. Dist. LEXIS 143517, at *1 (S.D.N.Y. Sept. 15, 2014), report and recommendation adopted sub nom., 2014 U.S. Dist. LEXIS 143066, at *1 (S.D.N.Y. Oct. 7, 2014); and Hunt v. Conroy, 2014 U.S. Dist. LEXIS 52305, at *1 (N.D.N.Y. Apr. 16, 2014). 552 Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 612 (E.D. Va. 2005). 553 See Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1533 (1983) (âSince 1948, beginning with the case of Smith v. Doss, 251 Ala. 250, 37 So. 2d 118 (1948), Alabama has recognized the tort of âinvasion of the right to privacy.ââ); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Metter v. Los Angeles Examiner, 35 Cal. App. 2d 304, 95 P.2d 491 (1939); Peay v. Curtis Pub- lishing Co., 78 F. Supp. 305 (D.D.C. 1948); State v. Holden, 54 A.3d 1123 (Del. Super. Ct. 2010); Davis v. General Finance & Thrift Corp., 80 Ga. App. 708, 57 S.E.2d 225 (1950); Continental Optical Co. v. Reed, 119 Ind. App. 643, 86 N.E.2d 306 (1949); Bremmer v. Journal-Tribune Pub- lishing Co., 247 Iowa 817, 76 N.W.2d 762 (1956); Tate v. Womanâs Hops. Found., 56 So. 3d 194 (La. 2011); Dalley v. Dykema Gossett, PLLC, 287 Mich. App. 296, 788 N.W.2d 679, 686 (2010) (quoting Lewis v. LeGrow, 258 Mich. App. 175, 670 N.W.2d 675 (2003)); Meyerkord v. Zipantoni Co., 276 S.W.3d 319 (Mo. App. 2008); Frey v. Dixon, 141 N.J. Eq. 481, 58 A.2d 86 (1948); Holloman v. Life Ins. Co., 192 S.C. 454, 7 S.E.2d 169 (1940); Russell v. American Real Estate Corp., 89 S.W.3d 204 (Tex. App., Corpus Christi 2002); Pion v. Bean, 2003 VT 79, 833 A.2d 1248 (2003); and Mayer v. Huesner, 126 Wash. App. 114, 107 P.3d 152 (2005).
41 2. Intrusion upon Seclusion A second cause of action for an invasion of privacy for disclosing personal data is for intrusion upon seclusion. The tort of intrusion upon seclusion does not require a showing that a disclosure was made to the general public.561 In an Arkansas case, the court observed that the tort of intrusion requires âspecific intrusive action as opposed to disclosing private information.â562 In California, there must be proof of an âintrusion into a private place, conversation or matterâ¦in a manner highly offensive to a reason- able person.â563 In Rhoades v. Penn-Harris-Madison School Corporation,564 a federal court in Indiana held that an intrusion claim requires physical con- tact or an invasion of a plaintiff âs physical space.565 In Watkins v. Cornell Companies, Inc., a case in which the plaintiffs sued for intrusion upon seclu- sion but knew they were being filmed, a federal court in Texas held that [i]ntrusion on seclusion requires proof of (1) an intentional intrusion, physically or otherwise, upon anotherâs solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person. â¦Liability does not turn on publication of any kind. The core of the tort of invasion of privacy is the offense of prying into the private domain of another, not the publicity that may result from such prying.566 There are various defenses to a claim for intrusion, including that the plaintiff did not intend to keep the information private; that under the circumstances the plaintiff did not have a reasonable expectation of pri- vacy; or that the plaintiff voluntarily and without any coercion consented to the disclosure.567 Under Penn- sylvania law, an intrusion claim cannot exist when âa defendant legitimately obtains information from a plaintiff.â568 In Doe v. Di Genova,569 a federal court in the District of Columbia held that there is no claim for B. Invasion of Privacy There are four potential bases for a claim in tort for an invasion of privacy that may apply to an unauthorized use or disclosure of personal data: public disclosure of private facts, intrusion upon seclusion, misappropriation, and false light.554 Not all states that allow a claim for invasion of privacy recognize all four types of claims. 1. Public Disclosure of Private Facts Although some states recognize âthe tort of invasion of privacy based on [an] unreasonable public disclo- sure of private facts,â555 it appears that most jurisdic- tions require that a disclosure of personal information must have been made to the general public, âusually through the media.â556 For a claim to be actionable, the disclosure has to have revealed, for instance, ââunpleas- ant or disgraceful or humiliating illnessesâ or âhidden physical or psychiatric problems.ââ557 For example, in Lake v. Wal-Mart Stores Inc.,558 concerning the publication of nude photos by Wal- Mart employees, the court stated: Lake and Weber allege in their complaint that a photograph of their nude bodies has been publicized. Oneâs naked body is a very private part of oneâs person and generally known to oth- ers only by choice. This is a type of privacy interest worthy of protection. Therefore, without consideration of the merits of Lake and Weberâs claims, we recognize the torts of intrusion upon seclusion, appropriation, and publication of private facts. Accordingly, we reverse the court of appeals and the district court and hold that Lake and Weber have stated a claim upon which relief may be granted and their lawsuit may proceed.559 However, a tort action for public disclosure is unlikely to succeed if the injury from a disclosure is minimal.560 554 Restatement (3d) of Torts. See Martha Tucker Ayres, Confidentiality and Disclosure of Health Information in Arkansas, 64 aRk. L. Rev. 969, 994 (2011) (footnote omitted) [hereinafter Ayres]. 555 Joy L. Pritts, Altered States: State Health Privacy Laws and the Impact of the Federal Health Privacy Rule, 2 yaLe J. heaLTh pOLây L. & eThics 325, 331 (2002) [herein- after Pritts] (citing, e.g., Ozer v. Borquez, 940 P.2d 371, 377 (Colo. 1997) (stating that â[t]he requirement of public dis- closure connotes publicity, which requires communication to the public in general or to a large number of persons, as distinguished from one individual or a fewâ) and Lake v. Wal-Mart Stores Inc., 582 N.W.2d 231, 235 (Minn. 1998) (establishing the common law right to privacy in Minne- sota, including the torts of âintrusion upon seclusion, appropriation, and publication of private factsâ). 556 Ayres, supra note 554, at 995 (stating that a recovery in tort for an invasion of privacy is limited as the disclo- sure or communication must be âto the public at largeâ); see Pritts, supra note 555, at 331. 557 Pasternack, supra note 548, at 833 (footnote omitted). 558 582 N.W.2d 231, 235 (Minn. 1998). 559 Id. 560 Pasternack, supra note 548, at 833 (footnote omitted). 561 See Restatement (Second) Â§ 652(B). See also Reid v. Pierce County, 136 Wash. 2d 195, 206, 961 P.2d 333, 339â340 (1998). 562 Dunbar v. Cox Health Alliance, LLC, 446 B.R. 306, 313â314, 2011 Bankr. LEXIS 812 (E.D. Ark. 2011). 563 Grant v. United States, 2011 U.S. Dist. LEXIS 61833, at *1, 20 (E.D. Cal. 2011) (citing caL. civ. cOde Â§ 47(b)), adopted by, claim dismissed, 2011 U.S. Dist. LEXIS 78119, at *1 (E.D. Cal. 2011). 564 574 F. Supp. 2d 888 (N.D. Ind. 2008). 565 Id. at 907â908 N 3. 566 2013 U.S. Dist. LEXIS 66376, at *1, 21â22 (N.D. Tex. 2013) (citations omitted) (internal quotation marks omitted) (emphasis added). 567 Ayres, supra note 554, at 995 (footnotes omitted) 568 Steinberg v. CVS Caremark Corp., 899 F. Supp. 2d 331, 342â343 (E.D. Pa. 2012). 569 Doe v. Di Genova, 642 F. Supp. 624, 632 (D. D.C. 1986) (holding that under the Privacy Act, Doe was entitled to an order prohibiting the release of records).
42 (PennDOT) regulation that required health care professionals to inform PennDOT of every patient older than 15 who had certain designated medical conditions that could affect a patientâs ability to drive a vehicle.577 The plaintiff argued that the regu- lation violated privacy rights and would cause indi- viduals to avoid seeking medical care to assure that they would not lose their driving privilege.578 In Pennsylvania, although patients have a right to pri- vacy in their medical information, the courts use a seven-factor test to balance the individualâs inter- ests against the stateâs interests in public health and safety.579 The court held that âthe privacy inter- ests of [the plaintiff âs] patients are outweighed by the stateâs compelling interest,â because the âopera- tion of vehicles on Pennsylvania roadways compels a broader consideration of issues than those asserted byâ the plaintiff.580 The court also held, inter alia, that the plaintiff lacked standing.581 3. Claims for Appropriation or False Light Because they are mentioned in the Restatement, privacy claims based on misappropriation or false light will be noted briefly. For a plaintiff to make a claim for misappropriation or for false light, a plain- tiff âs information must have been revealed to the public by the media, the same element that is usu- ally required for a claim for a public disclosure of private facts.582 C. Applicability of a Common Law Right of Privacy to Transportation Agencies In the absence of constitutional or statutory rem- edies, tort law must be used to remediate a violation of a claimed right to privacy.583 One commentator argues that there are several problems in respect to the use of the common law of torts for a privacy vio- lation arising out of a disclosure of data collected by ITS and other technology.584 First, it is difficult to predict how the courts would apply the principles previously discussed because âthere is no reported court decision regarding tort liability for invasion of privacy in a context similar to ITS.â585 Second, for there to be a claim, the intrusion when an intrusion is reasonable under the circumstances or when an intrusion is not âserious.â One issue for an intrusion claim is whether a dis- closure is sufficiently offensive. In Cooney v. Chicago Public Schools,570 involving a firmâs disclosure of personal information on former Chicago public school employees, the court, in ruling that there were no actionable claims, drew a distinction between personal information and private informa- tion. Names and Social Security numbers are per- sonal information, but the court held that their dis- closure was not âfacially embarrassing and highly offensiveâ¦.â571 One case was located for the digest in which the court held that the complaint stated a claim against the Secretary of the North Carolina DOT for intru- sion into seclusion. North Carolina recognizes the tort of intrusion into seclusion. In Toomer v. Garrett,572 the plaintiff alleged that the secretary disclosed and distributed the contents of Toomerâs personnel file to the media, thus violating the plaintiff âs right to pri- vacy.573 Although the state, its agencies, and officials who are sued in their official capacities usually are immune from claims under North Carolina law, the court held that the action was allowable because of the plaintiff âs allegations of malice and bad faith on the part of the DOT officials.574 Therefore, the defen- dants were not âentitled to dismissal of plaintiff âs claims for tortious invasion of privacy on the basis of official capacity immunity.â575 In Behar v. Pennsylvania Department of Trans- portation,576 the court held that the transportation departmentâs interest in public safety outweighed the plaintiff âs interest in the privacy of the plain- tiff âs medical information. The plaintiff challenged a Pennsylvania Department of Transportation 570 Cooney v. Chicago Public Schools, 407 Ill. App. 3d 358, 943 N.E.2d 23 (2010). 571 Id. at 367, 943 N.E.2d at 32. 572 155 N.C. App. 462, 574 S.E.2d 76 (N.C. App. 2002). 573 Id. at 466â467, 574 S.E.2d at 82. 574 Id. at 480â481, 574 S.E.2d at 91. 575 Id. at 481, 573 S.E.2d at 91. The court also held that the plaintiffâs complaint was sufficient to state (1) Â§ 1983 claims for federal substantive due process and equal protection violations for injunctive relief against indi- vidual defendants in their official capacities and for damages in their individual capacities; (2) state sub- stantive due process and equal protection claims for injunctive relief against individual defendants in their official capacities; (3) a breach of contract claim against the State, NCDOC, and individual defendants in their official and individual capacities; and (4) ...invasion of privacy, gross negligence, and civil conspiracy against individual defendants in their individual capacities. Id. at 484, 574 S.E.2d at 93. 576 791 F. Supp. 2d 383 (M.D. Pa. 201). 577 Id. at 388. See also 67 pa. cONs. cOde Â§ 85.6 (2015). 578 Behar, 791 F. Supp. 2d at 397. 579 Id. at 398. 580 Id. 581 Id. at 390â400. 582 Ayres, supra note 554, at 998, 1000 (footnote omitted). 583 Douma and Deckenbach, supra note 2, at 295. 584 Dorothy J. Glancy, Privacy and Intelligent Transporta- tion Technology, 11 saNTa cLaRa cOMpUTeR & high Tech. L.J. 151, 179 (1995) [hereinafter Dorothy Glancy]. 585 Id.