An Appraisal of Privacy Torts in The Media

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Fortune Ugwumba (Samora)

By Fortune Ugwumba

INTRODUCTION

One of the major bedrocks of any democratic and civilized state is the respect for fundamental human rights. Without respect for the inalienable human right of individuals, such country is bound for chaos.

Privacy or the Right to Privacy did not just stroll into the list of fundamental human rights. It was deliberately discussed; analyzed, debated and of course tested within the full ambit of the law as a core and fundamental ingredient of every human live which explains its recognition in S.37 CFRN.[1]

By the provisions of that grund norm, privacy for the homes, correspondence, telephone conversations, telegraphic communication and even access to the citizens is guaranteed. To that effect, any entity that betrays or threatens the privacy of the citizen will be in breach.

The media (old media, new media and digital media inclusive) is a major player in the process of information dissemination and therefore the issue of privacy in the media cannot be over-flogged.

You will agree with me that the core bedrock of privacy is hinged on the principle of absolute and total control over one’s private life. Anything short of this will amount to an invasion of privacy. Thus, this article seeks to throw more light on some of some tortuous behaviour/act that amount to privacy tort of which an action for damages can be maintained.

PRIVACY TORTS

Just like every tort, privacy torts are civil wrongs which tend to negate the principle of privacy which is “absolute control” over ones personal data or information or affairs.

Research over years has exposed 4 major ‘media’ privacy torts that have developed which are also in line with recent media trends.

  1. Public Disclosure of Private Facts
  2. False Light
  3. Intrusion upon seclusion or solitude
  4. Appropriation of likeness for an advantage (Right to publicity)

Public Disclosure of Private fact

Also known as misuse of private information; public disclosure of private fact occurs where a tortfeasor[2] who may have come in possession of private facts about the claimant without necessarily intruding on their privacy gives publicity to such private fact. In our local parlance “you choke nose for wetin no concern you”.

Since the basic principle of privacy is hinged on the claimant’s full and autonomous control over their life to determine what should be published and what should remain a private fact, once publicity is given to the private fact or life of a claimant, the tortfeasor becomes liable.

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Worthy of note is the fact that the aspect of the private fact or life that falls under the scope of this tort is that which when published, “Would be offensive to a reasonable person and is not of legitimate concern to the public”.

To further succeed under this claim, the claimant must in addition to other things prove these elements:

  1. No legitimate public interest was served by having these private facts disclosed
  2. That the defendant was at fault for making the disclosure, and
  3. That the defendant’s actions were both the actual and proximate cause of the disclosure and of the harm the plaintiff suffered.

In order for a viable cause of action to arise, the facts disclosed by the defendant must pertain to the plaintiff’s private life. Any facts that are already known or that are a matter of public record cannot be the basis of a cause of action and of course such disclosure must involve some measures of publicity.

One may ask; what about public figures and celebrity?

Although the lives of public figures and celebrities may be generally considered to be of legitimate public interest, there are certain elements to a public figure’s life that are so private as to be considered beyond legitimate public interest. Publication of these kinds of facts is actionable.

Finally, unlike defamation, truth is never a defense to a suit for public disclosure of private facts. The laws regarding public disclosure of private facts were established to protect the claimant from public embarrassment. That purpose is defeated when the defendant discloses private facts about the claimant, especially if those facts are true. Thus, truth is not a defense.

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False Light

Simply put, if you say something about another person which happens to be false and of course affects the way a 3rd party views such person and further harm him, you will be liable for the tort of False light.

In order to succeed in a claim for False Light, the claimant must prove that defendant published something that gave people the wrong impression about him.

The harm of this tort is that it seeks to spread non-defamatory but false information which is unbearable; albeit in a manner that is often hard to pin down.

While this tort looks similar to appropriation of plaintiff’s name or likeness, it is slightly different in that placing the plaintiff in false light does not involve the commercial use of the plaintiff’s name or likeness, whereas, in the tort of appropriating plaintiff’s name or likeness, the purpose is for commercial use.

Intrusion upon Seclusion

This tort details the outright invasion of privacy when in solitude. It extends to the private affairs of the claimant. A perfect example of this tort is eaves dropping or tapping into the private conversation of an individual. It is an aberration and a full breach of the provisions of S. 37 CFRN

This tort can take the form of stalking, trespass, secret surveillance and tailing etc.

Although, for public interest and National security, the communications of a citizen can be intercepted by the appropriate authorities after obtaining a warrant from a judge[3] and such shall not amount to a breach of privacy.

To succeed in an action for tort of intrusion upon seclusion, the claimant must establish 4 elements.

  1. That the defendant, without permission, must have intentionally invaded his private affairs
  2. That the invasion is offensive to a reasonable person
  3. That the matter the defendant intruded upon is a private matter.
  4. The invasion caused suffering and damage to the claimant 

Appropriation of Likeness for an advantage

The tort of appropriation of likeness is similar to actions instituted on the grounds of infringement of intellectual property rights.

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This tort seeks to empower the claimant with the following:

  1. Privacy interest against unwanted exposure
  2. An autonomous interest in controlling the presentation of their image to others
  3. An economic interest in the value of one’s image.

To prove a prima facie case of appropriation of the claimant’s name or likeness for commercial purposes, the claimant must show that the defendant used his name or likeness for commercial purposes without being authorized to do so.

Some jurisdictions have extended protection beyond name and likeness the to include other features associated with plaintiff as well such as claimant’s voice, catch phrases and trademark habits.

For ordinary people, the unauthorized use of their name or likeness is actionable as an invasion of privacy and the plaintiff will be able to bring a tort action for appropriation of his likeness. However, if the claimant is a celebrity, the use of his name and likeness has a clear commercial value as such, he would be entitled to damages for the appropriation of his likeness under a law of tort and also for the violation of his right of publicity under an intellectual property theory.

Please note that if the plaintiff is not a user of the product that his likeness appears on and the advertisement for the product harms the plaintiff’s reputation, the plaintiff may also have a cause of action for defamation.

Conclusion

Having understood the various privacy tort that coexist with the media, it is pertinent to conclude by restating vehemently that right to privacy is a constitutional right, as such, while an action for tort is maintained, an action for infringement of Fundamental Human Right can also be maintained against the defendant.

Fortune Ugwumba (Samora) is a corporate law cum privacy and data protection practitioner in Abuja. He can be reached at: ugwumbafortune@gmail.com.

[1] 1999 Constitution of the Federal Republic of Nigeria

[2] A person who commits a tort, delict or quasi-offense

[3] S.7 Lawful Interception of Communications Regulations, 2019

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