📋 Overview

You've received a demand letter claiming invasion of privacy. California recognizes four distinct privacy torts, each with different elements and defenses. Understanding which claim applies to your situation is essential to crafting an effective response.

Intrusion Upon Seclusion

Physical or electronic intrusion into private affairs that would be highly offensive to a reasonable person.

Public Disclosure

Publishing private facts that would be highly offensive and are not of legitimate public concern.

False Light

Publishing information that creates a false impression about a person that would be highly offensive.

Misappropriation

Using someone's name, likeness, or identity for commercial purposes without consent.

Key Threshold: "Highly Offensive"

Most privacy claims require that the conduct be "highly offensive to a reasonable person." This is a high bar - mere embarrassment or annoyance is not enough. Courts consider community standards, the nature of the intrusion, and the context.

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Case analysis, identification of applicable defenses, professional response to privacy claims.

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🔍 Identify the Claim Type

Each privacy tort has different elements the plaintiff must prove. Identify which applies.

Privacy Claims Matrix

Privacy Tort Key Elements Common Defense
Intrusion Intentional intrusion into private space/affairs; highly offensive No reasonable expectation of privacy
Public Disclosure Public disclosure; private facts; highly offensive; not newsworthy Newsworthiness; already public
False Light Publication; false implication; highly offensive; fault Not false; not highly offensive
Misappropriation Use of identity; for commercial advantage; without consent Consent; non-commercial use; First Amendment

📄 Analyze the Claim

  • ✓ Which privacy tort is alleged?
  • ✓ What specific conduct is at issue?
  • ✓ Was there a reasonable privacy expectation?
  • ✓ Is the "highly offensive" standard met?

📝 Your Conduct Review

  • ✓ Did you have consent (express or implied)?
  • ✓ Was the information already public?
  • ✓ Is there a legitimate public interest?
  • ✓ Was use commercial or expressive?

Statute of Limitations

Privacy claims in California generally have a 2-year statute of limitations under CCP 335.1. For misappropriation claims under Civil Code 3344, it's 2 years from the date of use. If the alleged invasion occurred more than 2 years before the demand, the claim may be time-barred.

🛡 Your Defenses

Privacy claims have substantial defenses, especially when First Amendment interests are involved.

Consent

Express or implied consent is a complete defense to all privacy torts. Consent can be given in writing, verbally, or through conduct (such as posing for photos or agreeing to an interview). Consider whether the plaintiff's actions indicated consent.

When to use: Subject agreed to be photographed, interviewed, or mentioned; signed release; participated willingly.

No Reasonable Expectation of Privacy

Privacy protections only apply where the plaintiff had a reasonable expectation of privacy. Activities in public places, publicly-shared information, or matters of public record generally aren't protected.

When to use: Events occurred in public; information was already publicly available; plaintiff voluntarily disclosed.

Newsworthiness / Public Concern

The First Amendment protects publication of matters of legitimate public concern. This defense applies broadly to news, commentary on public figures, and matters affecting the community. California courts give substantial deference to editorial judgment.

When to use: Subject is a public figure; topic involves public issues, government, crime, health, or community interest.

Not "Highly Offensive"

Privacy torts require conduct that would be "highly offensive to a reasonable person." This is an objective standard. Mere embarrassment, annoyance, or hurt feelings don't meet this threshold.

When to use: The alleged invasion was minor, the disclosure was of non-intimate matters, or community standards wouldn't find it offensive.

First Amendment / Transformative Use (Misappropriation)

For misappropriation claims, use of identity in news, commentary, art, or other expressive works is protected. California's "transformative use" test protects creative works that add significant expression beyond mere likeness.

When to use: Use was in news coverage, artistic work, commentary, parody, or added significant creative elements.

Anti-SLAPP May Apply

If the privacy claim arises from speech on a matter of public interest, California's anti-SLAPP statute (CCP 425.16) may provide a path to early dismissal with fee recovery. Public disclosure and false light claims are often subject to anti-SLAPP.

⚖ Response Options

Choose your response based on the strength of the claim and your defenses.

Assert Defenses

If you have strong defenses (consent, public matter, not offensive), respond firmly explaining why the claim fails. Cite applicable case law.

  • Shows you understand the law
  • May deter frivolous claims
  • Preserves your position

Request Specifics

If the demand is vague, request that they specify exactly what conduct they claim invaded privacy and what damages resulted.

  • Forces them to articulate claim
  • May reveal weaknesses
  • Buys time to investigate

Negotiate Removal

If the disputed content has minimal value to you, consider removing it in exchange for a full release of claims.

  • Quick resolution
  • No litigation cost
  • Get comprehensive release

Ignore the Letter

If the claim is clearly meritless or appears to be an empty threat, you may choose not to respond. Document your analysis.

  • No cost
  • No engagement
  • They may still sue

Damages in Privacy Cases

What plaintiffs can recover if they win

General damages (emotional distress) Varies widely
Special damages (economic loss) Must prove causation
Punitive damages Requires malice/oppression
Civil Code 3344 (misappropriation) Greater of actual damages or $750
KEY POINT Damages Often Hard to Prove

📝 Sample Responses

Customize these templates for your specific privacy claim.

No Privacy Expectation Defense
I have received your demand letter dated [DATE] alleging invasion of privacy. After careful review, I respectfully decline your demand. The conduct you describe does not constitute an actionable invasion of privacy. [DESCRIBE SPECIFIC REASON - e.g., "The photograph was taken in a public place where your client had no reasonable expectation of privacy." / "The information disclosed was already a matter of public record." / "Your client consented to the interview and publication."] California courts consistently hold that there is no privacy interest in matters occurring in public view or information already publicly available. See Shulman v. Group W Productions (1998) 18 Cal.4th 200. I will defend any lawsuit vigorously and will seek recovery of my attorney fees if the claim is found to be frivolous or brought in bad faith.
Newsworthiness Defense
Your letter of [DATE] demands that I [remove content/cease publication] regarding [TOPIC]. I decline. The publication at issue involves a matter of legitimate public concern. [DESCRIBE - e.g., "Your client is a public official whose conduct in office is subject to public scrutiny." / "The topic involves consumer safety/public health/community interest."] The First Amendment and California Constitution broadly protect the publication of newsworthy information. California courts apply the "community mores test" with substantial deference to editorial judgment. See Shulman v. Group W Productions (1998) 18 Cal.4th 200; Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040. Any lawsuit over this protected speech would be subject to California's anti-SLAPP statute (CCP 425.16), which provides for early dismissal and mandatory fee awards. I encourage you to advise your client of these risks.
Consent Defense (Misappropriation)
I am responding to your demand regarding alleged misappropriation of [CLIENT'S NAME]'s likeness. Your client provided consent for the use at issue. Specifically, [DESCRIBE CONSENT - e.g., "your client signed a model release on [DATE]" / "your client posed for photographs with full knowledge they would be used for [PURPOSE]" / "your client participated in the interview and approved the final content"]. Consent is a complete defense to misappropriation claims under both common law and Civil Code 3344. Having provided consent, your client cannot now revoke it retroactively with respect to uses that have already occurred. I have retained the [release form/consent documentation] and will produce it in any litigation. I suggest you review this matter carefully before proceeding.
Not Highly Offensive Defense
Your letter claims that my conduct constitutes an actionable invasion of privacy. I disagree. Even assuming the facts as you describe them, the conduct would not be "highly offensive to a reasonable person" - the threshold required for privacy claims in California. See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. The matters at issue involve [DESCRIBE - e.g., "routine business information" / "matters your client has publicly discussed" / "non-intimate facts that any reasonable person would not find offensive"]. While your client may prefer these matters remain private, that preference does not create a legal right. Courts consistently reject privacy claims based on ordinary embarrassment or annoyance. Your client's claim does not meet the "highly offensive" standard and would fail as a matter of law.

🚀 Next Steps

Actions to take after receiving a privacy demand.

Step 1: Identify the Tort

Determine which of the four privacy torts applies. Each has different elements and defenses.

Step 2: Gather Evidence

Collect any consent forms, releases, or documentation. Preserve evidence of the context and public nature of information.

Step 3: Check Timeline

Verify when the alleged invasion occurred. Claims older than 2 years may be time-barred.

Step 4: Assess Newsworthiness

Consider whether the information involves matters of public concern that would trigger First Amendment protection.

If They File a Lawsuit

  • Consider anti-SLAPP - For public disclosure and false light claims, anti-SLAPP motions are often viable
  • Challenge each element - Privacy claims have multiple required elements; challenge each one
  • Demand proof of damages - Emotional distress claims require proof; economic damages require causation
  • Assert First Amendment - Constitutional protections apply to newsworthy matters

Special Considerations

  • Revenge porn: California has specific criminal and civil laws (Civil Code 1708.85)
  • Medical information: Special protections under CMIA and HIPAA may apply
  • Minors: Heightened protections for children's privacy
  • Recordings: California's two-party consent law (Penal Code 632) is separate from privacy torts

Get Professional Help

Privacy claims can be complex. Get an attorney's analysis of your defenses and a professional response.

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California Legal Resources

  • Civil Code 3344: Statutory right of publicity
  • Cal. Const. Art. I, Sec. 1: Constitutional privacy right
  • CCP 335.1: 2-year statute of limitations
  • Shulman v. Group W: Leading case on privacy law (18 Cal.4th 200)