Restat 2d of Torts, § 652H

• Restatement of the Law, Second, Torts
• Division 6A- Privacy
• Chapter 28A- Invasion of Privacy
• § 652H Damages

One who has established a cause of action for invasion of his privacy is entitled to recover damages for

(a)  the harm to his interest in privacy resulting from the invasion;

(b)  his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and

(c)  special damage of which the invasion is a legal cause.

Comment:

a.  A cause of action for invasion of privacy, in any of its four forms, entitles the plaintiff to recover damages for the harm to the particular element of his privacy that is invaded. Thus one who suffers an intrusion upon his solitude or seclusion, under § 652B, may recover damages for the deprivation of his seclusion. One whose name, likeness or identity is appropriated to the use of another, under § 652C, may recover for the loss of the exclusive use of the value so appropriated. One to whose private life publicity is given, under § 652D, may recover for the harm resulting to his reputation from the publicity. One who is publicly placed in a false light, under § 652E, may recover damages for the harm to his reputation from the position in which he is placed.

b.  The plaintiff may also recover damages for emotional distress or personal humiliation that he proves to have been actually suffered by him, if it is of a kind that normally results from such an invasion and it is normal and reasonable in its extent. In this respect the action for invasion of privacy closely resembles that for defamation, on which see § 623.

c.  It seems likely that the holding of Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, to the effect that the First Amendment requires that recovery for defamation be confined to compensation for "actual injury" and cannot be extended to "presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth," will be held applicable to actions for invasion of privacy based upon §§ 652D (publicity to private life) and 652E (publicity placing person in false light). (See § 621). The proof of actual harm need not be of pecuniary loss and in the case of emotional distress may be simply the plaintiff's testimony. Whether in the absence of proof of actual harm an action might be maintained for nominal damages remains uncertain. (Cf. § 620).

d.  The plaintiff may also recover for any special damage that he can prove, of which the invasion of privacy has been the legal cause. In this respect, again, the cause of action resembles that for defamation. (See §§ 622, 622A).

e.  As to the right to restitution of benefits tortiously obtained through invasion of the right of privacy, as for example through the unprivileged use of the plaintiff's name or likeness in the defendant's advertising, see Restatement of Restitution, § 136.

This Section is new.

It frequently has been held that the plaintiff need not plead or prove special damages. Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Fairfield v. American Photocopy Equipment Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1945); Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905); Kunz v. Allen, 102 Kan. 883, 172 P. 532 (1918); Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909); Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076 (1911); Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938).

Substantial damages may be awarded for the mental distress inflicted and other probable harm. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905); Sutherland v. Kroger Co., 144 W.Va. 673, 110 S.E.2d 716 (1959).

Nominal damages may be awarded when the evidence negatives any substantial harm. Cason v. Baskin, 159 Fla. 31, 30 So. 2d 635 (1947).

On evidence of consequential harm, see Manger v. Kree Institute of Electrolysis, 233 F.2d 5 (2 Cir. 1956); Continental Optical Co. v. Reed, 119 Ind.App. 643, 86 N.E.2d 306 (1949); Bunnell v. Keystone Varnish Co., 254 App. Div. 885, 5 N.Y.S.2d 415 (1938); Hogan v. A. S. Barnes & Co., Inc., 114 U.S.P.Q. 314 (Pa.C.P. 1957).

ALR Annotations:

Pleading matter in mitigation of damages in tort action other than libel and slander. 75 A.L.R.2d 473.

Digest System Key Numbers:

Damages 1 et seq.