Liability for invasion of privacy exists only if the defendant's conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. It is only where the intrusion has gone beyond the limits of decency that liability accrues. It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause of action exists.
Plaintiffs sought damages for an alleged invasion of their right of privacy. Plaintiffs alleged in their original complaint that in a magazine published by defendant appeared an unauthorized photograph of plaintiffs taken by defendant's employee while plaintiffs were at their place of business. The photo was used to illustrate a magazine article. The trial court sustained defendant's demurrer, finding a cause of action was not stated. On appeal, the court reversed, finding the trial court abused its discretion in sustaining defendant's demurrer without leave to amend the complaint, since the defect in the complaint was capable of being cured.
Did the court err in sustaining defendant’s demurrer?
It is true that in their argument in opposing defendants' demurrer to their amended complaint, plaintiffs stressed the publication of the photograph alone as constituting a violation of their right of privacy, without regard to its use in connection with the article. However, as appears from its memorandum opinion in sustaining the demurrer without leave to amend, the trial court attached no significance to the matter of whether plaintiffs charged defendants with mere consent to publication of the photograph or included also consent to publication of the accompanying article. In either event the trial court was of the view that there had been no invasion of plaintiffs' right of privacy. Under such circumstances defendants may not successfully urge a waiver by plaintiffs or estoppel in limitation of the premise of their alleged damage claim. Regardless of plaintiffs' theory of liability, the ruling of the trial court would have been the same -- that a cause of action had not been stated.