24. If the mother sues the television station for invasion of her privacy and that of her son, will the mother be likely to prevail?

Under the theory of invasion of privacy, a plaintiff can recover for four types of wrongs: (i) appropriation by the defendant of the plaintiff's picture or name for commercial advantage; (ii) intrusion by the defendant upon the plaintiff's affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosure by the defendant of private facts about the plaintiff.

To make a prima facie case for public disclosure of private facts, a plaintiff must show (i) publication or public disclosure by the defendant of private information about the plaintiff not generally known to the public; and (ii) that the matter made public is such that its disclosure would be highly offensive to a reasonable person; (iii) and that the facts disclosed are not newsworthy. For liability to attach, the disclosure must be a public disclosure widely communicated and the facts disclosed must be private.

B is correct. The mother would be unlikely to prevail on her invasion of privacy claims against the television station because the street where she was filmed was open to the public and the subject was newsworthy. Although a showing of emotional distress is not necessary to prove an invasion of privacy claim based on public disclosure of private facts, this factor underscores that the invasion of privacy by the television station was one which would be highly offensive to the average person. However, a threshold requirement of public disclosure of private facts claim is that the information disclosed must be private. Under the facts here, the mother was recorded while on a public street, which is where her son's body was left. To this end, the television station could prevail on a defense that the facts depicted were publicly known and not private.

Additionally, the claim requires that the information disclosed is not newsworthy. As a constitutional matter, reporters generally avoid liability for reporting on facts in the public interest, even if the reporting involved an invasion of privacy. Here, the boy's death and his mother's grief were depicted as part of a news story concerning gang violence. To this end, not only could the television station argue that the reporting was newsworthy, but also that even if it did expose private facts, the social value of the story had a greater weight than the invasion of privacy. Therefore, the mother would be unlikely to prevail.

A is incorrect. The right to privacy does not survive death. The mother likely would not be able to recover on behalf of her son because he is deceased, however, she would still be able to recover for her own invasion of privacy.

C is incorrect. The mother will not prevail on the basis that she did not consent to the video used in the program. Although consent is a defense to an invasion of privacy claim, and would not be available in this case, it is not the only defense or means of liability, as regardless of consent. A plaintiff's claim will fail if they cannot meet the requisite elements of the claim. Here, the mother will be unlikely to prevail, because the facts depicted were arguably public and were newsworthy. The social value outweighing the invasion of privacy.

D is incorrect. The mother will not prevail based on a showing that she had suffered emotional distress. Although her emotional distress would bolster her argument that the information disclosed would be highly offensive to an average person, emotional distress is not a necessary or sufficient element of an invasion of privacy claim for public disclosure of private facts. Instead, to prevail the mother would need to show that besides being offensive to the average person, the information disclosed was not public or newsworthy. Under the facts here, she will likely fail on both grounds.