Chapter 18
MISCELLANEOUS TORTS:
INVASION OF PRIVACY;
MISUSE OF LEGAL PROCEDURES;
INTERFERENCE WITH ADVANTAGEOUS RELATIONS;
FAMILIAL AND POLITICAL RELATIONS
A. Four torts: The so-called “invasion of privacy” cause of action is essentially four distinct mini-torts. They all involve P’s “right to be let alone.” The four are: (1) misappropriation of P’s name or picture; (2) intrusion on P’s solitude; (3) undue publicity given to P’s private life; and (4) the placing of P in a false light.
B. Misappropriation of identity: P can sue if her name or picture has been misappropriated by D for his own financial benefit. (Example: D, a cereal maker, runs an ad containing a photo of P eating D’s cereal. P does in fact eat D’s cereal, but has never agreed to endorse it. P can recover for appropriation of his picture.)
C. Intrusion: P may sue if his solitude is intruded upon, and this intrusion would be “highly offensive to a reasonable person.” (Example: To gain derogatory information about P to use in their upcoming civil case, D hires a detective to wiretap P’s home, and to eavesdrop on P using a directional microphone pointed at P’s front window. P has an invasion-of-privacy claim against D of the “intrusion upon solitude” variety.)
1. Must be private place: This “intrusion upon solitude” branch is triggered only where a private place is invaded. Thus if D takes P’s picture in a public place, this will normally not be enough.
D. Publicity of private life: P may recover if D has publicized the details of P’s private life. The effect must be “highly offensive to a reasonable person.” (Example: D, a sensationalist newspaper, prints the details of the extramarital sex life of P, who is wealthy but not a public figure. P can recover against D for publicity of private life.)
1. Not of legitimate public concern: As a constitutional matter, it is probably a requirement for the “publicity of private life” action that the material not be of legitimate public concern. (Example: If P is on trial for murder, it is not an invasion of his privacy for newspapers to give reports on even minor private details of his past life, such as his sexual history.)
E. False light: P can sue if he is placed before the public eye in a false light, and this false light would be highly offensive to a reasonable person. (Example: P is war hero. D makes a movie about P’s life, including fictitious materials such as a non-existent romance. D is liable for invasion of privacy, of the “false light” variety.)
1. Actual malice: But at least where P is a public figure, he can recover for “false light” only if he can show that D knew the portrayal was false, or acted in reckless disregard of whether it was. In other words, New York Times v. Sullivan applies to false light actions by public figures. [Time, Inc. v. Hill] Probably private figures do not have to meet this “actual malice” standard.
A. Three torts: Three related tort actions protect P’s interest in not being subjected to unwarranted judicial proceedings: (1) malicious prosecution; (2) wrongful institution of civil proceedings; and (3) abuse of process.
B. Malicious prosecution: To recover for malicious prosecution, P must prove the following: (1) that D instituted criminal proceedings against him; (2) that these proceedings terminated in favor of P (the accused); (3) that D had no probable cause to start the proceedings; and (4) that D was motivated primarily by some purpose other than bringing an offender to justice.
1. Initiating proceeding: P must show that D took an active part in instigating and encouraging the prosecution. (Example: If D merely states what she believes to be the facts to the prosecutor, and lets the prosecutor decide whether to prosecute, this is probably not “institution” of proceedings. But if D attempts to persuade the prosecutor to prosecute, this will be sufficient.)
2. Favorable outcome: The criminal proceedings must terminate in favor of the accused (P). An acquittal will of course be enough; so will a prosecutor’s decision not to prosecute (but a plea bargain to a lesser offense will not suffice).
3. Absence of probable cause: P must show that D lacked probable cause to institute the criminal proceedings.
a. Reasonable mistake: If D made a reasonable mistake, she does not lack probable cause.
b. Effect of outcome: The fact that P was acquitted does not itself establish lack of probable cause. D still has the right to show, in the tort case, by a preponderance of evidence, that P was guilty and that D therefore had probable cause.
4. Improper purpose: P must show that D acted out of malice, or for some other purpose than bringing an offender to justice.
C. Wrongful civil proceedings: In most states, a tort action exists for wrongful institution of civil proceedings. The requirements are virtually identical to the “malicious prosecution” action, except that the original proceedings are civil rather than criminal.
1. Elements: Thus P must prove that: (1) D initiated civil proceedings against P; (2) D did not have probable cause to believe that his claim was justified; (3) the proceedings were started for an improper purpose (e.g., a “nuisance” suit or “strike suit,” brought solely for the purpose of extorting a settlement); and (4) the civil proceedings were terminated in favor of the person against whom they were brought.
D. Abuse of process: The tort of “abuse of process” occurs where a person involved in criminal or civil proceedings uses various litigation devices for improper purposes. (Example: Even if a civil suit is properly brought by P, if P then uses his power of subpoena to harass D or make him settle, rather than for the proper purpose of obtaining his testimony, this is an abuse of process.)
A. Three business torts: Three related torts protect business interests: (1) injurious falsehood; (2) interference with contract; and (3) interference with prospective advantage.
B. Injurious falsehood: The action for “injurious falsehood” protects P against certain false statements made against his business, product, or property. Most important is so-called “trade libel.” This occurs where a person makes false statements disparaging P’s goods or business.
1. Elements: P must prove the following elements for trade libel:
a. False disparagement: D made a false statement disparaging P’s goods, business, etc. (Example: D falsely states that P is out of business);
b. Publication: P must show that the statement was “published,” as the word is used in defamation cases;
c. Scienter: P must show scienter on D’s part. That is, P must show that D knew her statement was false, acted in reckless disregard of whether it was false, or (in some courts) acted out of ill-will or spite for P.
d. Special damages: P must prove “special damages,” i.e., that P suffered “pecuniary” harm.
2. Defenses: D can raise a number of defenses, including:
a. Truth: that the statement was true; and
b. Fair competition: that D was pursuing competition by fair means. In particular, D is privileged to make general comparisons between her product and P’s, stating or implying that her product is the better one. In other words, “puffing” is protected. But if D makes specific false allegations against P’s product, D will not be protected.
C. Interference with existing contract: The tort of “interference with contract” protects P’s interest in having others perform existing contracts which they have with him. The claim is against one who induces another to breach a contract with P. (Example: P, a theater owner, has contracted to have X perform in P’s theater on a certain date. D, a competing theater owner, induces X to perform for him on that date instead. P can recover against D for interference with contract.)
1. Privileges: D can defend on the grounds that his interference was privileged.
a. Business competition: D’s desire to obtain business for herself, however, is not by itself enough to make her privileged to induce a breach of contract. (But in most courts, if P’s contract was terminable at will, D is privileged to induce a termination of it for the purpose of obtaining the business for herself.)
D. Interference with prospective advantage: If due to D’s interference, P loses the benefits of prospective, potential contracts (as opposed to existing contracts), P can sue for “interference with prospective advantage.”
1. Same rules: Essentially the same rules apply here as for “interference with contract.” The big difference is that D has a much greater scope of privilege to interfere.
a. Competition: Most importantly, D’s desire to obtain the business for herself will be enough to give her a privilege, which is usually not the case where there is an existing contract. (Example: P and D are competitors. D learns that P has been pursuing a certain prospect for nine months, and is about to sign a long-term supply contract with that customer. D can jump in, and offer a money-losing low price, even if this is for the sole purpose of weakening P.)
A. Family: A family member’s interest in having the continued affections of the other member of his family is sometimes protected.
1. Husband and wife: In some states, a jilted spouse may bring either of two tort claims against an outsider who has interfered with the marital relation:
a. Alienation of affections: Some states allow P to sue for “alienation of affections” against anyone who has caused P’s spouse to lose his or her affection for P. (This is usually, but not always, a romantic rival — for instance, the action can be brought against a friend or relative who has convinced the spouse to leave P.) But D has a privilege to interfere to advance what D reasonably believes to be the alienated spouse’s welfare.
b. Criminal conversation: A person who has sexual intercourse with one spouse may be liable to the other for “criminal conversation.”
2. Parent’s claim: A parent will not usually have a tort claim against one who alienates his child’s affections. But there are a couple of exceptions, where suit is allowed:
a. Minor leaves home: The parent has a claim against the person who has caused his minor child to leave home, or not to return home. (Example: A parent might sue the members of a cult, such as the “Moonies,” if the cult induces the minor child to leave home.)
b. Sex: The parent has a tort claim against anyone who has sexual intercourse with the parent’s minor daughter (but not son).
B. Interference with political and civil rights: There may be a common-law tort action for interfering with P’s political rights (e.g., his right to vote), his civil rights (e.g., his right to make a public protest), or his public duties (e.g., his duty to serve on a jury).