You’re three weeks out from the bar exam. You flip open a Torts question and see “invasion of privacy.” Your stomach drops. Was that intrusion upon seclusion? False light? Or the one about using someone’s name? You know there are four privacy torts, but under pressure, they blur together into an anxious mess.

Here’s the problem: invasion of privacy isn’t one tort. It’s four completely separate causes of action, each with distinct elements, and the MBE loves testing whether you can spot which one applies. Mix them up, and you’ll confidently select the wrong answer every time.

Let’s break down all four privacy torts so you can walk into the exam knowing exactly what each one requires.

Why Privacy Torts Confuse Bar Examinees

Unlike battery or negligence, invasion of privacy doesn’t appear in the common law’s greatest hits. These four torts emerged from a famous 1890 law review article and evolved separately across state courts. The NCBE tests them under the intentional torts umbrella, but they don’t follow the same structure as assault or false imprisonment.

Each privacy tort protects a different aspect of your right to be left alone. The fact pattern will give you clues about what the defendant did and what harm the plaintiff suffered. Your job is to match the conduct to the correct tort. Let’s tackle them one by one.

Intrusion Upon Seclusion: Invading Private Spaces or Affairs

Intrusion upon seclusion occurs when the defendant intentionally intrudes upon the plaintiff’s private affairs or seclusion in a manner that would be highly offensive to a reasonable person.

The key elements are:

  1. An intentional intrusion (physical or otherwise)
  2. Into the plaintiff’s private affairs, solitude, or seclusion
  3. That would be highly offensive to a reasonable person

This tort protects your right to keep certain spaces and information private. The intrusion can be physical (breaking into someone’s home to snoop through their diary) or technological (wiretapping a phone, hacking email accounts, using a drone to peer into someone’s bedroom window).

MBE tip: The intrusion must invade something private. If the defendant observes you in a public place where anyone could see you, there’s no intrusion upon seclusion. Taking photos of someone sunbathing in their fenced backyard? That’s intrusion. Taking photos of someone sunbathing at a public beach? That’s not.

Also, the plaintiff does not need to prove publication or damages beyond the intrusion itself. The harm is the invasion of privacy, not what the defendant does with the information afterward. If a private investigator secretly installs a camera in your bathroom but never shares the footage, you still have a claim.

Hypothetical: Defendant hires a private investigator to follow Plaintiff, a celebrity, while Plaintiff shops at a public mall. The investigator takes photos from 20 feet away. Later, the investigator breaks into Plaintiff’s hotel room and photographs private documents on the desk. Which act constitutes intrusion upon seclusion?

Only the hotel room break-in. The public mall photos don’t invade a private space. The hotel room is a place where Plaintiff has a reasonable expectation of privacy, and the break-in is highly offensive.

Appropriation of Name or Likeness: Unauthorized Commercial Use

Appropriation occurs when the defendant uses the plaintiff’s name, likeness, or identity for the defendant’s benefit, typically commercial gain, without permission.

The elements are:

  1. Unauthorized use of the plaintiff’s name, likeness, or identity
  2. For the defendant’s advantage (usually commercial or economic benefit)

This tort protects your right to control the commercial use of your identity. It’s the legal foundation for the “right of publicity” that celebrities enforce when companies use their faces to sell products without permission.

MBE tip: The use must be for the defendant’s benefit. If a newspaper publishes your photo in a news article about a public event you attended, that’s not appropriation—it’s protected by the First Amendment as newsworthy content. But if that same newspaper uses your photo in an advertisement to sell subscriptions without your consent, that’s appropriation.

The plaintiff doesn’t need to be famous. If a local restaurant uses your photo in their promotional materials without permission, you have a claim even if you’re not a public figure.

Hypothetical: Defendant, a fitness supplement company, uses Plaintiff’s before-and-after weight loss photos in social media ads without Plaintiff’s consent. Plaintiff never endorsed the product. The company claims the photos were publicly available on Plaintiff’s Instagram account. Does Plaintiff have a claim for appropriation?

Yes. Even though Plaintiff posted the photos publicly, the defendant used them for commercial advantage without authorization. Posting photos on social media doesn’t grant companies permission to use your likeness in advertisements.

Public Disclosure of Private Facts: Publicizing Embarrassing Truths

Public disclosure of private facts occurs when the defendant publicly discloses private information about the plaintiff that would be highly offensive to a reasonable person and is not of legitimate public concern.

The elements are:

  1. Public disclosure of facts (not opinions)
  2. The facts are private (not already public)
  3. The disclosure would be highly offensive to a reasonable person
  4. The facts are not of legitimate public concern (not newsworthy)

This tort is the narrowest of the four because of the newsworthiness defense. Even if the disclosed facts are private and embarrassing, the First Amendment protects publication if the information is legitimately newsworthy or relates to a matter of public concern.

MBE tip: Truth is not a defense to this tort. Unlike defamation, where truth is an absolute defense, public disclosure of private facts involves publicizing true information. The question is whether the plaintiff had a right to keep that information private.

The disclosure must be public, meaning communicated to a large number of people or to the public at large. Telling one friend about someone’s private medical condition isn’t public disclosure. Posting it on Facebook with 2,000 followers likely is.

Hypothetical: Defendant, a blogger, discovers that Plaintiff, a local teacher, was treated for depression ten years ago. Defendant publishes a detailed blog post about Plaintiff’s mental health history, including medications and therapy details obtained from a leaked medical record. Plaintiff suffers emotional distress and humiliation. Does Plaintiff have a claim?

Probably yes, unless the information is newsworthy. The medical history is private, the disclosure is highly offensive, and it’s communicated publicly. The key question is whether Plaintiff’s mental health treatment is of legitimate public concern. If Plaintiff is a private citizen and the information isn’t related to job performance or public safety, the newsworthiness defense likely fails.

False Light: Publicizing Misleading Information

False light occurs when the defendant publicly attributes false or misleading statements, conduct, or characteristics to the plaintiff that would be highly offensive to a reasonable person.

The elements are:

  1. Public disclosure of facts about the plaintiff
  2. That place the plaintiff in a false light
  3. The false light would be highly offensive to a reasonable person
  4. The defendant acted with actual malice (if the plaintiff is a public figure)

False light looks like defamation’s cousin. Both involve false statements. The difference is the harm: defamation protects your reputation (how others view you), while false light protects your right to not have false things publicly attributed to you (your sense of dignity and emotional well-being).

MBE tip: The false light doesn’t need to be defamatory. You can place someone in a false light even if the portrayal isn’t negative. For example, falsely claiming someone donated to a political campaign they actually oppose places them in a false light, even if donating to charity is generally positive.

The actual malice requirement applies when the plaintiff is a public figure, meaning the defendant knew the portrayal was false or acted with reckless disregard for the truth. Private figures typically need to show only negligence.

Hypothetical: Defendant, a documentary filmmaker, uses Plaintiff’s image in a film about drug addiction. Defendant shows Plaintiff’s photo while the narrator discusses heroin overdoses. In reality, Plaintiff has never used drugs and was photographed at an unrelated public health event. Plaintiff sues for false light. Does Plaintiff have a claim?

Yes. The film publicly portrays Plaintiff as connected to drug use, which is false. A reasonable person would find this association highly offensive. The use of Plaintiff’s image creates a misleading impression about Plaintiff’s conduct or character. If Plaintiff is a private figure, Plaintiff would need to show the filmmaker was at least negligent in creating the false association.

How to Distinguish the Four on the MBE

When you see an invasion of privacy question, ask yourself these questions in order:

Did the defendant intrude into a private space or secretly obtain private information? If yes, think intrusion upon seclusion. Look for hacking, wiretapping, trespassing into private areas, or surveillance where the plaintiff had a reasonable expectation of privacy.

Did the defendant use the plaintiff’s name, photo, or identity to make money or gain an advantage? If yes, think appropriation. Look for unauthorized use in advertisements, endorsements, or commercial products.

Did the defendant publicly reveal true but embarrassing private facts? If yes, think public disclosure of private facts. Look for disclosure of medical records, sexual history, financial information, or other intimate details. Watch for the newsworthiness defense.

Did the defendant publicly portray the plaintiff in a misleading or false way? If yes, think false light. Look for doctored photos, misleading context, or false attribution of beliefs or conduct.

The MBE will often include wrong answer choices that name the incorrect privacy tort. If you see “appropriation” as an option but the defendant never used the plaintiff’s identity for commercial gain, eliminate it. If you see “intrusion upon seclusion” but the defendant published information rather than secretly obtaining it, eliminate it.

What You Need to Memorize

Here’s your takeaway for exam day:

Intrusion upon seclusion = invading private spaces or affairs (no publication required)

Appropriation = using someone’s name or likeness for your benefit (usually commercial)

Public disclosure of private facts = publicizing true but private embarrassing information (newsworthiness is a defense)

False light = publicizing false or misleading information about someone (similar to defamation but protects dignity, not reputation)

All four require intent or knowledge. All four protect different aspects of privacy. None of them require physical harm. The damages are typically emotional distress, humiliation, or in appropriation cases, the commercial value of the unauthorized use.

If you want all 88 Torts rules organized for active recall—including these four privacy torts with their complete elements—FlashTables covers exactly what the MBE tests in a two-column format designed for memorization under pressure. It’s built by someone who passed the bar using this method and knows which distinctions actually matter on exam day.

The privacy torts aren’t intuitive, but they’re predictable once you know what each one protects. Drill the distinctions now, and you’ll recognize them instantly when they appear in July.