In some states, a person’s right to privacy and the remedies available for violation of that right by another person or entity are defined in the state’s statutes. But in states that do not have a statute that provides for a right to privacy, a right to privacy may be recognized in the state’s common law—located in its court opinions, also known as case law.

Among these so-called common law states, the terms and definitions of privacy rights and claims vary from state to state. But common law claims for violation of a person’s right to privacy generally include one or more of the following:

Invasion of Privacy by Intrusion on Seclusion

To prove invasion of privacy by intrusion, there are three elements to establish: (1) an intentional intrusion, physically or otherwise, upon the solitude, seclusion, or private affairs or concerns of another; (2) that such intrusion would be highly offensive to a reasonable person; and (3) that the plaintiff suffered injury as a result of the intrusion.

Invasion of privacy is a willful tort that constitutes a legal injury. The basis of a cause of action for invasion of privacy is that the defendant has violated the plaintiff's rights to be left alone. This intrusion itself is actionable, and the plaintiff can receive at least nominal damages for that actionable intrusion without demonstrating physical harm.

Thus, a defendant’s improper intrusion of an area where the plaintiff had demonstrated an expectation of privacy is sufficient to invoke the plaintiff’s right to recover damages.

And if the plaintiff proves the defendant acted with malice, the plaintiff is entitled to recover exemplary damages from the defendant.

Invasion of Privacy by Public Disclosure of Private Facts

The elements of a claim for invasion of privacy by public disclosure of private facts are (1) the defendant publicized matters concerning the plaintiff’s personal life; (2) publication would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized is not of legitimate public concern.

There is generally a presumption under the law that the public has no legitimate interest in private, embarrassing facts about private citizens who are not public figures. The determination of whether a given matter is one of legitimate public concern must be made in the factual context of each particular case, considering the nature of the information and the public's legitimate interest in its disclosure. Although the general subject matter of a publication may be a matter of legitimate public concern, it does not necessarily follow that all information given in the account is newsworthy.

For example, when a newspaper publishes information about a sexual assault, a logical nexus should exist between a rape victim's identity, or the private facts disclosed about the victim, and the general subject matter of the crime. Private details about a rape victim or the victim's identity may be irrelevant when the details are not uniquely crucial to the case, or when the publisher's public concern goes to a general, sociological issue.
Invasion of Privacy by Appropriation of Name or Likeness

The elements of a claim for invasion of privacy by misappropriation are: (1) the defendant appropriated the plaintiff’s name or likeness for the value associated with it; (2) the plaintiff can be identified from the publication; and (3) there was some advantage or benefit to the defendant.

The law generally does not protect a name per se, but the value associated with it. Liability for invasion of privacy arises only when the defendant appropriates for their own benefit the commercial standing, reputation, or other values associated with the plaintiff’s name. An appropriation generally becomes actionable when the name is used to advertise the defendant’s business or product, or for some similar commercial purpose.

Some states apply a very restrictive interpretation of the tort, and in some of those states courts have declined to recognize a right to privacy for corporations.

False Light

False light is a privacy tort (a wrongful act) that is similar to defamation (libel and slander) and generally requires the plaintiff to prove (1) the defendant recklessly published information about the plaintiff (spoken or written); (2) the information was highly offensive or embarrassing; and (3) the information portrayed the plaintiff in a false or misleading light.

Because of its similarity to and overlap with defamation claims, some states do not recognize false light as an independent tort claim or cause of action.

In New Mexico, the right to privacy and the associated remedies for its violation are recognized under common law, as the state does not have a specific statute that provides for a right to privacy. New Mexico courts acknowledge several common law claims for invasion of privacy, which include: Invasion of Privacy by Intrusion on Seclusion, where a plaintiff must establish intentional intrusion upon their private affairs that is highly offensive to a reasonable person and has caused injury; Invasion of Privacy by Public Disclosure of Private Facts, requiring the publicized facts to be highly offensive to a reasonable person and not of legitimate public concern; Invasion of Privacy by Appropriation of Name or Likeness, where the plaintiff's name or likeness is used for commercial benefit without consent; and False Light, where information is published that portrays the plaintiff in a misleading or offensive manner. These common law claims are derived from case law and the principles are similar to those in other common law states, with the specifics of each claim being determined by the factual context of each case.