The right of privacy has been defined as the right to be left alone. After Supreme Court Justice Louis D. Brandeis co-authored an influential article in the Harvard Law Review in 1890, states across the country began to formally recognize and protect invasions of privacy rights. Invasion of privacy came to be categorized into four distinct types: (1) the unreasonable “intrusion upon seclusion” of another person, (2) publicity that unreasonably places another person in a “false light” before the public, (3) the unreasonable publication of another’s private life, and (4) misappropriation of another’s name or likeness.
If you’re reading this, there’s a good chance you’re a Virginia resident and believe someone has invaded your privacy. Before you get too excited about all the different causes of action you might have grounds to pursue, let me share with you the harsh reality that–with one narrow exception–Virginia recognizes none of these claims. Virginia does have a statute providing a remedy for a very limited and specific type of misappropriation of another’s likeness, as well as a law addressing computer invasion of privacy, but there is no cause of action in Virginia for “invasion of privacy” as there is in many other states.
The intrusion-upon-seclusion concept applies when somebody intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs, provided that the intrusion would be considered highly offensive to a reasonable person. In the District of Columbia, intrusion upon seclusion has three elements: (1) an invasion or interference by physical intrusion, by use of a defendant’s sense of sight or hearing, or by use of some form of investigation or examination (2) into a place where the plaintiff has secluded himself, or into his private or secret concerns (3) that would be highly offensive to an ordinary, reasonable person. So, for example, paparazzi chasing a celebrity down the street usually wouldn’t qualify, but paparazzi showing up unannounced at a celebrity’s private hospital bed would. In Virginia, however, the tort is simply not recognized.
False light claims are closely related to defamation. They are so related, in fact, that the Virginia General Assembly decided the law of defamation was sufficient to cover complaints of being portrayed in a false light and opted not to recognize a separate cause of action. The main difference between a defamatory statement and a statement that only places a person in a “false light” is the extent of publication required. Publication to just one person is sufficient to create an actionable claim for defamation. States that recognize a separate privacy tort of “false light” generally require widespread publication to numerous people such that the publication is deemed unreasonable.
The third form of invasion of privacy, unreasonable publicity of another’s private life, applies where someone publicizes a matter concerning the private life of another, where the matter would be highly offensive to a reasonable person and is not of legitimate concern to the public. The reason Virginia does not impose liability in this situation is because the First Amendment guarantees freedom of speech and of the press. Reiterating that plaintiffs with privacy concerns should look to the law of defamation for their remedy, the Virginia Supreme court has expressed the view that where “a plaintiff alleges that the defendant made an unauthorized use of the plaintiff’s name or image in a context that is false and would be highly offensive to a reasonable person, his remedy is to prove that the context was defamatory, and not that the use was a misappropriation.” (See WJLA-TV v. Levin, 264 Va. 140, 160 n.5 (2002)).
The one form of invasion of privacy that Virginia does recognize is the right not to have one’s name or likeness misappropriated for commercial purposes. Virginia Code § 8.01-40(A) provides that if a person’s “name, portrait, or picture” is used for “advertising purposes or for the purposes of trade” without written consent, the person may maintain a suit in equity to prevent the use, and may sue and recover damages (including punitive damages, for willful violations) for any injuries resulting from such use. Note that this is limited to commercial misappropriation of another’s likeness. In some other states, the privacy right is not so limited, and will protect against misappropriation of another’s name or likeness when used for the defendant’s own purposes and benefit, regardless of whether the defendant profits financially from the misuse.
In Virginia, the restriction is limited to “advertising purposes” and “purposes of trade.” A name or image is used “for advertising purposes” when it appears in a publication which, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of a particular product or service.
While this is the only traditional common-law invasion-of-privacy tort to be implemented in Virginia, privacy rights continue to evolve. A relatively new concept called computer invasion of privacy has gained a foothold in Virginia and can be found at Va. Code § 18.2-152.5.
For the most part, if your privacy rights have been invaded in the Commonwealth of Virginia, your legal remedy will likely lie in the torts of defamation, intentional infliction of emotional distress, and perhaps nuisance or criminal anti-stalking laws. You can’t sue for invasion of privacy.