| The right of privacy, articulated by Warren and Brandeis as an attempt to protect the individual from intrusions by others, has been tested in the courts for more than a century. This study sought to determine the following: (1) if the cases, despite the addition of constitutional standards in 1965, continue to reflect their statutory and common law, (2) whether the action in privacy was maintained, gained, or lost strength as an avenue of redress, (3) whether extra-judicial commentary such as the Prosser article and the Restatements on the law of privacy has changed the application or use of privacy law, and (4) if there are media-related differences in privacy litigation.;The study hypothesized that the common law tradition of privacy law would lessen the impact of constitutional recognition and the extra-judicial commentary, that privacy is an effective theory of recovery for the plaintiff, and that differences in privacy actions are media-related. None of the hypotheses were supported.;Although causality cannot be established directly, the combination of the Supreme Court opinion in Griswold and the Restatement (Second), changed the rationale used by the courts. The articulation of four related actions--intrusion, false light, appropriation, and disclosure--resulted in courts taking a more rigid approach to complaints. The general right of privacy, earlier used as a justification for the legal remedy, is used with greater frequency beginning in the mid-1960's.;In intrusion and publicity, the mass media have won roughly 80 percent of the claims. And in false light and general privacy, the mass media have won roughly 65 percent of the claims. In reaching these verdicts, the courts have usually used a rationale of balancing the right of privacy with First Amendment rights. In misappropriation claims, the plaintiff against the media has been successful roughly 75 percent of the time.;This study concludes that privacy has been relatively weak as a means of relief to the plaintiff, and that other related torts are emerging in which the plaintiffs are seeking relief. Those torts are the right of publicity and actions in emotional distress. Appendices III and IV discuss these torts comparatively among the states. (Abstract shortened with permission of author.)... |
