Torts Affecting Business
In the business world, other examples of infliction of mental distress come
about from the efforts of creditors to extract payment from their debtors. Frequent,
abusive, threatening phone calls by creditors might provide the basis
for a claim of intentional infliction of mental distress. As torts go, this one is
of fairly recent origin. It is a judge-made tort, which furnishes a good example
of how the courts are becoming increasingly sensitive to the range of injuries
for which compensation is appropriate. In some states, courts have gone so far
as to establish liability for carelessly inflicted mental distress, such as the distress
of a mother who sees her child negligently run down by a delivery truck.
3. INVASION OF PRIVACY
The tort of invasion of privacy is one that is still in the early stages of legal
development. As the statutes and court cases recognize it, the tort at present
comprises three principal invasions of personal interest. An invasion of any
one of these areas of interest is sufficient to trigger liability.
Most commonly, liability will be imposed on a defendant who appropriates
the plaintiff’s name or likeness for his or her own use. Many advertisers
and marketers have been required to pay damages to individuals when pictures
of them have been used without authorization to promote products, or when
their names and identities have been used without permission for promotional
purposes. Before using anyone’s picture or name, an advertiser must obtain a
proper release from that person to avoid possible liability. See Sidebar 10.2 .
That you can
recover damages for
likeness illustrates that
you own your name
and likeness in certain
A second invasion of privacy is the defendant’s intrusion upon the plaintiff’s
physical solitude. Illegal searches or invasions of home or possessions,
illegal wiretapping, and persistent and unwanted telephoning can provide the
basis for this invasion-of-privacy tort. In one case, a woman even recovered
Michael Jordan’s name is one of the most recognizable
in all of sports. Jordan has filed several lawsuits
against advertisers who have used his name without
permission in connection with the promotion of their
products. For instance, he sued Avon for $100 million
in connection with a Father’s Day promotion that
used his identity. Avon and Jordan settled that case.
More recently, Jordan sued two Chicago-area grocery
stores for using his name in order to attract customers
to their stores. Sports and entertainment stars
especially often sue businesses that use their identities
In general, the law considers a right to privacy
as “a right to be left alone.” But notice how similar a
right to privacy is to the property right. Privacy, like
property, is a right to exclude others from interfering
with something that is privately proper to someone.
Would it have been simpler if the law had developed
by saying that people have property in their identities?
Why do you think the law didn’t develop this way?
Privacy concerns arose as new technologies like
cameras and recorders made it easy to peer into the
lives of others. The same concerns continue today
with the Internet and computers. Legislatures have
passed a variety of laws concerning privacy. As with
the common law causes of action mentioned in this
section of the text, some of the new privacy acts
and statutes don’t even mention the word “privacy.”
Chapter 18 on consumer protection covers some
of the new privacy laws. In general, concern about
various privacy issues illustrate how law develops to
meet changing needs in society.
>> sidebar 10.2
Privacy, Michael Jordan, and Society
294 PART 3 Legal Foundations for Business
damages against a photographer who entered her sickroom and snapped a
picture of her. Employers who enter their employees’ homes without permission
have also been sued successfully for invasions of privacy. If the invasion
of privacy continues, it may be enjoined by the court. Jacqueline Kennedy
Onassis sought and obtained an injunction that forbade a certain photographer
from getting too close to her and her children. Under this tort, the invasion
of physical solitude must be highly objectionable to a reasonable person.
The third invasion of personal interest that gives rise to the invasionof-
privacy tort is the defendant’s public disclosure of highly objectionable,
private information about the plaintiff. A showing of such facts can be the
basis for a cause of action, even if the information is true. Thus, publishing in
a newspaper that the plaintiff does not pay his or her debts has been ruled to
create liability for the defendant creditor. Communicating the same facts to
a credit-reporting agency or the plaintiff’s employer usually does not impose
liability, however. In these cases, there has been no disclosure to the public in
general. Also, the news media are protected under the First Amendment when
they publish information about public officials and other public figures.