Notes: Kentucky right to privacy

1. Impetus: Revenge porn. In a verdict published on Tuesday, a German court ruled a local man should have deleted erotic photos of his now-former girlfriend as soon as she asked him to, according to The Guardian.

2. McCall v. Courier-Journal & Louisville Times, 623 SW 2d 882 (Ky. 1981)

The invasion of privacy as an actionable tort has been part of Kentucky law since 1909.[f.n.7 - Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909).] Subsequently, the development of this theory of law has grown at a modest pace.[f.n.8 - For an excellent discussion of invasion of privacy, see Bunch, Kentucky's Invasion of Privacy Tort — A Reappraisal, 56 Kentucky Law Journal 261 (1967-68).] The basis of the tort, while not subject to precise definition, may be best described as the right of every citizen to be "let" alone. Private individuals have the right to live their lives without unwarranted interference by the public about matters with which the public is not necessarily concerned. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927). There are exceptions to this rather sweeping principle of law. The right of privacy does not prohibit: (1) any publication of a matter which is of public or general interest; (2) the publication of a matter which is a privileged communication according to libel and slander law; (3) statements which are oral; and (4) a publication which is true. Id. Kentucky has not specifically adopted the "false light" aspect of the tort. 

We believe that the principles enumerated in Foster Milburn Co. v. Chinn, supra at note 7, and Brents v. Morgan, supra, which set forth the bases and nature of the tort of invasion of privacy, would best be furthered by our adoption of the principles of that tort as enunciated in the Restatement (Second) of Torts (1976). The pertinent section reads:

 "Sec. 652A. General Principle 

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another. . . ; or
(b) appropriation of the other's name or likeness . . .; or
(c) unreasonable publicity given to the other's private life . . ., or
(d) publicity that unreasonably places the other in a false light before the public . . . ." 

3. A privacy right is distinguished from publicity rights (KRS 391.170) against unauthorized commercial exploitation. A privacy right is also distinguished from defamation.

4. Valentins Abasins - My Image is My Property - Personal Image Protection on the Internet

5.Montgomery v. Montgomery, 60 SW 3d 524 - (Ky.2001)

6. Except for "newsworthy" images, photographers are generally very careful about obtaining written permission, or releases, from subjects. Why?


Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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This is not legal advice and I am not a lawyer.