Leading up to or during a divorce, spouses may be more tempted than usual to gather information on one another. And because of the close nature of married life, they may not recognize that their spouse has a right to privacy – even from them. This can lead to one spouse crossing legal boundaries and invading the privacy of their soon-to-be-ex-partner. Invading a spouse’s privacy during divorce will not only make the divorce more contentious, but it may also lead to separate claims against the invading spouse. This article will discuss (1) the common-law tort of invasion of privacy in Texas; (2) how invasion of privacy might occur during a divorce; and (3) possible defenses to an invasion of privacy claim.

What is an Invasion of Privacy?

Texas recognizes a common law right to privacy. The Invasion of Privacy tort encompasses three distinct violations of one’s privacy: (1) intrusion upon one’s solitude or private affairs; (2) public disclosure of private facts; and (3) wrongful appropriation of one’s name or likeness. Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973) (recognizing an intrusion of seclusion as a legal cause of action); Industrial Foundation of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976) (recognizing public disclosure of private facts as a legal cause of action); Doggett v. Travis Law Firm, P.C., 555 S.W.3d 127, 130 (Tex. App.—Hous. [1st Dist.] 2018, pet. denied) (recognizing misappropriation of one’s name or likeness as a legal cause of action); see also Cain v. Hearst Corp., 878 S.W.2d 858, n. 2 (Tex. 1994) (approving of other states and lower Texas courts that have recognized the misappropriation cause of action). Each violation has its own elements and defenses.

An invasion of privacy by intrusion upon one’s solitude occurs when: (1) there is “an intentional intrusion…upon the solitude, seclusion, or private affairs or concerns of another;” (2) such an intrusion would be “highly offensive to a reasonable person;” and (3) the intrusion caused an injury to the person whose privacy was violated. Fawcett v. Grosu, 490 S.W.3d 650, 664 (Tex. App.—Hous. [14th Dist.] 2016, pet. denied). The intrusion may be either physical, i.e., trespassing on their property, or non-physical, i.e., spying through a telescope from another property. See id. An intrusion into public affairs or concerns does not constitute an invasion of privacy. Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.—Tyler 2006, no pet.) (holding that plaintiff’s privacy was not invaded when they were observed while outside their house or behind large windows with open blinds). Common injuries resulting from an invasion of privacy include mental anguish and loss of earning capacity. See Billings, 489 S.W.2d at 861 (assigning mental suffering damages). 

An invasion of privacy by public disclosure of private facts occurs when: (1) facts concerning a party’s private life are made public; (2) such a publication would by highly offensive to a reasonable person; and (3) the publicized information “is not of legitimate public concern.” Robinson v. Brannon, 313 S.W.3d 860, 867 (Tex. App.—Hous. [14th Dist.] 2010, no pet.). An invasion of privacy does not occur where the facts disclosed were already known by the public or were part of a public record. See Industrial Foundation of the South, 540 S.W.2d 668 at 684 (holding that disseminating information from the public record was not an invasion of privacy). Information is of legitimate public concern when it relates to a political or social concern of the community, or when it is valuable for the community to know. King v. Paxton, 576 S.W.3d 881, 902 (Tex. App.—Austin 2019, pet. denied). The injuries resulting from publication are often like those resulting from intrusion.

Invasion of privacy by misappropriation occurs when: (1) one’s name or likeness is appropriated for the value associated with it; (2) the victim may be identified by the publication; and (3) the person who appropriated the likeness derived some benefit from it. Doggett, 555 S.W.3d 127 at 130. The misappropriation cause of action protects the value associated with one’s name, not the “name per se.” Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994) (applying Texas law). Accordingly, an invasion of privacy has not occurred where one’s name or likeness has been appropriated for some non-commercial reason, or for a reason that does not pertain to the name’s commercial value. Id. The injuries commonly resulting from misappropriation include mental anguish, loss of earning capacity, and economic losses. Moore v. Big Picture Co., 828 F.2d 270, 277 (5th Cir. 1987) (applying Texas law and affirming loss-of-earning damages after a misappropriation interfered with plaintiff’s ability to find a job).

How Does an Invasion of Privacy Relate to Divorce?

Spouses usually have access to and knowledge of many of their partner’s private concerns and affairs; however, this does not give them immunity to an invasion of privacy claim. Miller v. Talley Dunn Gallery, LLC, 2016 WL 836775 at *10 (Tex. App.—Dallas 2016, no pet.) (“[N]othing…suggests that the right of privacy is limited to unmarried individuals.”) (quoting Clayton v. Richards, 47 S.W.3d 149, 155 (Tex. App.—Texarcana 2001, pet. denied)). While reasonable expectations of privacy are lower between spouses than strangers, spouses may still violate those expectations and be liable for invasion of privacy. A common violation of reasonable expectations of privacy between spouses occurs when one partner secretly records the behavior of the other.

In Clayton, a wife collaborated with a private investigator to set up a video recording system in the bedroom that she shared with her husband after a psychic suggested that her husband was having an affair. Clayton, 47 S.W.3d at 154. The court held that this behavior could form the basis of an invasion of privacy suit against the wife and the investigator, reversing a judgment of the trial court. Id. at 155-56. They reasoned that, while couples do give up some expectation of privacy by marrying, some right to privacy still remains. Id. Furthermore, they reasoned that being recorded in one’s bedroom without consent and while unaware violates even this relaxed expectation of privacy. Id. (“As a spouse with equal rights to the use and access of the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed….However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse…”).

While planning for or going through a divorce, parties should remain mindful about their spouse’s right to privacy. Although they may have access to their spouse’s private affairs, they likely cannot record those affairs without consent. If one does record their spouse’s private affairs without consent, they may not only add friction to an already difficult process, but they may also open themselves up for future claims. 

What Are the Defenses to Invasion of Privacy? 

A defendant in any invasion of privacy case may raise the following defenses: (1) limitations; (2) plaintiff’s fault; and (3) consent. A defendant in an invasion by publication case may also raise the newsworthiness defense. If the defendant prevails on any of these defenses, the court will disregard the invasion of privacy claim and find for the defendant.

An invasion of privacy claim is subject to a two-year statute of limitations under the Texas Civil Practices and Remedies Code section 16.003; Ortega v. Young Again Products, 548 Fed. Appx. 108, 112-113 (5th Cir. 2013) (applying Texas law) (citing Matlock v. McCormick, 948 S.W.2d 308, 311 (Tex.App.—San Antonio 1997, no writ). If it has been more than two years since the events that gave rise to the invasion of privacy claim, then that claim is barred. Because invasion of privacy is a tort claim, it is also subject to Texas’s contributive fault rule. Tex. Civ. Prac. & Rem. Code § 33.00(2)(a)(1). Under this rule, if the plaintiff was more than 50 percent at-fault for the invasion of their own privacy, then their claim is barred. Id. at § 33.001

Invasions of privacy may also be consented to by the plaintiff. If the plaintiff did consent to the actions that invaded their privacy, their claim is barred. See, e.g., Farrington v. Sysco Food Services, Inc., 865 S.W.2d 247, 254 (Tex. App.—Hous. [1st Dist.] 1993, writ denied) (holding that a drug test was not an invasion of privacy because the plaintiff consented). Finally, the newsworthiness defense may protect a defendant who discloses information of public concern about the plaintiff, even if that disclosure would otherwise be an invasion of privacy. King v. Paxton, 576 S.W.3d at 902.