The Difference Between Criminal and Civil “Invasion of Privacy” in California

California has both criminal and civil invasion of privacy laws. The civil laws include “false light” claims and cases involving the public disclosure of private facts.

The laws are similar in that a person performs an act that invades the privacy of another. While the specific acts in criminal and civil cases differ – in terms of their definitions and how they are proven – they are still alike in that they intrude on a person’s private matters.

Criminal and civil invasion of privacy cases, though, are significantly different. The main difference relates to this:

Criminal invasion of privacy charges are brought by the State of California for the purpose of imposing punishment for the commission of a crime. The punishment may be in the form of fines or a prison term.

In the civil invasion of privacy cases, the act of invading the privacy of another is considered a “tort,” or, a legal wrong that damages another person. The party suffering damages can file a lawsuit in court to be financially compensated for injury done to him, his reputation, or his business.

Criminal invasion of privacy in California

Penal Code 647(j) PC is California’s criminal “invasion of privacy” law. PC 647(j) makes it a misdemeanor to violate someone’s privacy in any of three specific ways:

1. Using a device such as a telescope or binoculars to invade a person’s privacy;
2. Secretly photographing or recording a person’s body under or through his or her clothing for the purpose of sexual arousal or gratification; or
3. Secretly recording or photographing someone in a private room in order to view that person’s body or undergarments.

Examples of criminal invasion of privacy include:

• A “peeping Tom” scenario where John watches Sally undress through binoculars.
• Victor secretly records Jessica change in a fitting room with a mobile device.
• Matt secretly takes upskirt photographs of females in a shopping mall.

Criminal invasion of privacy is a type of “disorderly conduct” in California. As such, it is a misdemeanor, punishable by:

• Up to six (6) months in county jail, and/or
• A fine of up to $1,000.

Punishment under Penal Code 647(j) increases if:

• It is the defendant’s second or subsequent offense for invasion of privacy, or
• The victim was a minor at the time of the offense.

In either of these cases, the penalty for invasion of privacy can include:

• Up to one (1) year in county jail, and/or
• A fine of up to $2,000

Civil invasion of privacy in California

There are two main civil invasion of privacy causes of action in California. These are:

1. “False light” claims; and,
2. Public disclosure of private fact cases.

While the elements of each case differ, parties successful in filing either claim may recover similar damages.

California “false light” claims

A person can sue for false light when an individual or business publishes offensive information about that person, implies that it’s true, but it’s actually false.

All false light claims are similar in that a party filing a lawsuit must prove three distinct elements. These are:

1. The defendant made a public disclosure;
2. The disclosure placed the plaintiff in a false light; and,
3. An average person would consider the false light offensive.

A few common examples of false light include:

• A company publishes a picture of a married couple with a message stating that their only interest in one another is sex.
• John posts on his Facebook newsfeed a false claim that his ex-girlfriend Tyra has filed for bankruptcy.
• A business runs an advertisement that gives the false impression that Michael supports one of its products.

The damages a plaintiff may recover in these actions will ordinarily depend on the specific facts of a case. But, some of the more common damages include compensation for:

• Loss of reputation, shame and hurt feelings;
• Damage to the plaintiff’s trade or occupation; or,
• Loss of business income resulting from the disclosure.

California public disclosure of private fact cases

The public disclosure of private fact happens in California when a person publicly discloses private and embarrassing facts about another person. Further, the facts disclosed must not be of a legitimate public concern. This basically means that the facts are really “nobody else’s business.”

In all public disclosure of private fact cases, the plaintiff must prove five specific elements. These are:

1. There is a public disclosure;
2. That concerns private facts;
3. The disclosure is one that would offend the average person;
4. The disclosure was not of legitimate public concern; and,
5. The defendant published private facts with reckless disregard for their truth or falsity.

A few common examples are:

• Johnny posts naked pictures of Sarah, without her consent, on his Facebook newsfeed.
• Sally posts on Twitter that her ex-boyfriend got diagnosed with herpes.
• A news station broadcasts video on the evening news of paramedics trying to revive a man post-heart attack.

If a plaintiff is successful in these actions, he may recover damages like those awarded in false light actions. Again, these include compensation for:

• Loss of reputation, shame and hurt feelings;
• Damage to the plaintiff’s trade or occupation; or,
• Loss of business income resultingly from the disclosure.

In both false light and public disclosure of private fact cases, a person typically has a one-year statute of limitation, from the date of publication or disclosure, to file a claim. Also see our article on civil vs criminal cases.