Invasion of Privacy, Misrepresentation, and Economic Torts

The Four Invasion-of-Privacy Torts

Privacy is protected by four distinct torts, each guarding a different interest. They are generally personal (do not extend to corporations and do not survive the plaintiff's death, except the right of publicity in many states), and most are actionable without proof of special damages.

Key distinctions: Intrusion needs no publication — the wrong is the prying itself (wiretapping, peeping, hacking). Public disclosure and false light require publicity (communication to the public at large), unlike defamation, which needs publication to only one person. Appropriation for newsworthy or editorial purposes is privileged; only commercial exploitation is actionable.

California's right of publicity (Civ. Code § 3344) is a robust statutory appropriation tort: it prohibits the knowing use of another's name, voice, signature, photograph, or likeness for advertising or selling without consent, with statutory minimum damages, profits, and attorney's fees. California also recognizes a post-mortem right of publicity (Civ. Code § 3344.1) protecting deceased celebrities. Defenses across privacy torts: consent, and the privileges that apply to defamation (absolute and qualified).

Misrepresentation: Fraud and Negligent Misrepresentation

Intentional misrepresentation (fraud / deceit) requires:

1. A false representation of a material fact (or, in some cases, active concealment or non-disclosure where a duty to disclose exists);
2. Scienter — the defendant knew the statement was false or acted with reckless disregard for its truth;
3. Intent to induce the plaintiff's reliance;
4. Justifiable (actual and reasonable) reliance by the plaintiff; AND
5. Damages (pecuniary loss).

Several nuances are heavily tested. A statement of opinion generally is not actionable, except when made by someone with superior knowledge (an expert) or in a fiduciary relationship. Predictions and 'puffery' ('this is a great deal') are not actionable facts. Non-disclosure becomes actionable where the parties stand in a fiduciary relationship, where the defendant made a partial/misleading statement, or where she actively concealed a defect. Justifiable reliance fails if the falsity was obvious or the plaintiff knew the truth.

Negligent misrepresentation requires (1) a careless misrepresentation of a material fact (2) in a business or professional capacity, (3) breach of a duty owed to a particular plaintiff, (4) justifiable reliance, and (5) damages. The duty typically arises only in a special relationship (e.g., an accountant or appraiser supplying information), and liability is limited to a narrow, foreseeable class of persons the defendant intended to reach — not the world at large. This 'foreseeable class' limitation (the Bily v. Arthur Young approach in California, restricting auditor liability) is a frequent distinction.

Innocent (no-fault) misrepresentation may also support rescission and, in products cases under § 402B, tort recovery.

Economic Torts: Interference with Contract and Prospective Advantage

Tortious interference with an existing contract requires:

1. A valid contract between the plaintiff and a third party;
2. The defendant's knowledge of the contract;
3. Intentional inducement of the third party to breach (or interference making performance more difficult); AND
4. Damages to the plaintiff.

Tortious interference with prospective economic advantage protects relationships not yet reduced to contract (a likely future business relationship). California (and a growing number of states) imposes a higher bar: the plaintiff must prove the defendant's conduct was independently wrongful — i.e., unlawful by some legal measure other than the interference itself (fraud, defamation, threats, statutory violation). This is the rule of Della Penna v. Toyota Motor Sales (Cal. 1995): mere competitive interference, standing alone, is not enough; the plaintiff must show a 'wrongful act' apart from the interference.

Privileges/justification: Both interference torts yield to a privilege. Courts weigh factors including the nature of the defendant's conduct, the interests advanced, the social interests in protecting freedom of action and contract, and the relationship of the parties. Fair competition is privileged for prospective relationships (you may lawfully lure a competitor's would-be customers), and a defendant may protect her own existing economic or contractual interest or give honest advice when asked.

A defendant who interferes to advance a legitimate competitive interest by lawful means is generally not liable for interfering with a prospective (non-contractual) relationship — but a defendant who induces breach of an existing contract enjoys a narrower privilege.

MBE/essay traps:

• Distinguish existing contract (lower bar — competitive motive is not a defense to inducing breach) from prospective advantage (higher bar — needs an independently wrongful act in California).
• Privacy 'publicity' ≠ defamation 'publication.' Public disclosure of private facts and false light require communication to the public at large; defamation requires only one third person.
• Truth defeats defamation but NOT public disclosure of private facts — true private facts can still be tortious if highly offensive and not newsworthy.