Can Someone Succeed on an Invasion of Privacy Claim for the Unauthorized Taking of a Photograph?

The answer to this question begins on a number of variables: where the photograph was taken, why it was taken, the nature of the facts depicted in the photograph, whether it was distributed the public at large, or taken for commercial gain, ecetera. Under Florida Law, there are three (3) types of invasion of privacy causes of action, namely:

1. public disclosure of private facts;

2. intrusion, which is the invading of someone’s physical solitude or seclusion; and

3. appropriation, meaning the commercial exploitation of the property value of one's name.

See Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 161 (Fla. 2003); Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008).

To assert a valid cause of action for Invasion of Privacy – Public Disclosure of Private Facts, the following elements are needed:

(a) There must be a public disclosure;

(b) The facts disclosed must be private facts; and

(c) The disclosure must be such that it would be offensive and objectionable to a reasonable person of ordinary sensibilities.

See Prosser & Keeton, The Law of Torts, Section 117 (5th Ed., West 1984).

To meet the requirement of “public disclosure,” the publication or disclosure of said photographs must be made to a significant amount of persons, not simply a few individuals. See Santiesteban v. Goodyear Tire & Rubber Company, 306 F.2d 9 (5th Cir. 1962); See Williams v. City of Minneola, 575 So. 2d 683, 689 (Fla. 5th DCA 1991). As Judge Kenneth Marra of the United States District Court for the Southern District of Florida opined in 2017 in Leach v. Dist. Bd. of Trs. of Palm Beach:

The publicity given to the private fact must be more than mere publication. The fact must be made public by communicating it to the public at large or to so many people that the matter must be regarded as substantially certain to become one of public knowledge.

Leach, 244 F.Supp. 3d , 1339 (S.D. Fla. 2017) (citing Restatement (Second) of Torts § 652D cmt. a (1977) (emphasis added)).

With respect to “private facts,” the facts must not be already exposed to the public eye. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (Louisiana 1979).[1] Where the content displayed in a photograph can be seen in public by a passerby, there is no claim for invasion of privacy. See Heath v. Playboy Enterprises. Inc., 732 F. Supp. 1145 (S.D. Fla. 1990). Rather, the plaintiff must take pains to actually conceal the alleged private facts. See Doe v. Univision Television Group, Inc., 717 So. 2d 63, 64 (Fla. 3d DCA 1998) (holding that Florida law encompassed an invasion of privacy claim because plaintiff “took pains to conceal” scarring from plastic surgery). Further, if a reasonable person of ordinary sensibilities would not be offended, said claim for public invasion of private facts will fail, as the hypersensitive need not be protected. Cape Publications, Inc. v. Bridges, 423 So.2d 426 (Fla. 5th DCA 1982), cert. denied, 464 U.S. 893 (1983). Finally, a public figure has a lower expectation of privacy as opposed to a non-public one. Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944).

As to the Invasion of Privacy – Intrusion cause of action, there must be an intentional interference, physical or otherwise, with another person’s interest in solitude or seclusion, as to his or her person, private affairs, or concerns. See Restatement (Second) of Torts, Section 652B, and Cason, 155 Fla. 198 (1944). Essential to the claim is that the intrusion be made with respect to information of a private nature, “such as by opening [the plaintiff’s] private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents.” See Restatement (Second) of Torts, Section 652B. Photographing a person in a public setting does not rise to the level of tortious conduct. Spilfogel v. Fox Broad. Co., 433 F. App’x 724, 726 (11th Cir. 2011) (“For liability to attach, the offender must be guilty of ‘physically or electronically intruding into one’s private quarters.’” (quoting Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003))). In addition, the intrusion must be of a kind that would be highly offensive to a reasonable person. Restatement (Second) of Torts, Section 652B.

In so far as the Invasion of Privacy - Appropriation cause of action is concerned, the defendant must use the photographs for the purpose of obtaining some sort of commercial benefit. Florida Statute Section 540.08 specifically outlaws the display or publication of a photograph for purposes of trade or for any commercial or advertising purpose without the express written or oral consent of the person or the consent given by any other person, firm or corporation authorized in writing to license the commercial use of the name or likeness of the person depicted in said photograph. Where the photograph simply depicts the person at issue as a member of the public “and where such person is not named or otherwise identified in or in connection with the use of such photograph,” Section 540.08 will not apply.

In summation, in a situation where a photo depicts a divorced man and his girlfriend in public and said photo is publicly taken by the ex-wife’s friend and shared with her without any intention that said photograph be shared by anyone other than her, the divorced man would be unlikely to succeed with an invasion of privacy case. In contrast, where a photograph is taken of the divorced man and his girlfriend inside of a hotel room without their knowledge and then distributed in mass to the public with the intention of harming the man depicted in the photograph, the divorced man in that scenario would be likely to have a good breach of privacy claim.

Please note that the reliance on the caselaw listed above in no way creates an attorney-client relationship with the reader.

Should you wish to discuss the facts of your particular invasion of privacy case, please contact McKellar Poursine, P.L.L.C. at (305) 600-4862.

[1] Florida recognizes the common law tort of invasion of privacy with the same elements as Louisiana with the exception of recognizing a false light claim (where the publicity puts another in a false light before the public). Gritzke v. M.R.A. Holding, LLC, 2002 U.S. Dist. LEXIS 28085 (N.D. Fla. 2002); Rapp, 997 So.2d 1098.