Cal. Const. art. I, § 1; common law; Cal. Civ. Code § 3344
Invasion of privacy: four torts, plus a constitutional right the others do not have
A claim in California superior courts · Last verified August 26, 2026
"Invasion of privacy" is not one claim. It is four separate common law torts with different elements, plus a constitutional right California added by ballot initiative in 1972, plus a statutory claim for commercial use of someone's identity.
The constitutional right is what makes California different. Most constitutional protections run only against the government. California's privacy right runs against private parties too, so it can be asserted directly against an employer, a hospital, a landlord, or a technology company.
Pleading "invasion of privacy" without specifying which theory is the standard error, and it draws a demurrer.
The four common law torts
Intrusion upon seclusion. The defendant intentionally intruded into a place, conversation, or matter as to which the plaintiff had a reasonable expectation of privacy, in a manner highly offensive to a reasonable person. Recording, surveilling, searching, or accessing private information. No publication is required — the intrusion itself is the wrong.
Public disclosure of private facts. The defendant publicly disclosed private information about the plaintiff that was not of legitimate public concern and whose disclosure would be highly offensive. Truth is not a defense, which distinguishes it sharply from defamation.
False light. The defendant publicised information placing the plaintiff in a false light that would be highly offensive. It overlaps heavily with defamation and carries defamation's constitutional requirements, including actual malice where the plaintiff is a public figure or the matter is of public concern.
Appropriation of name or likeness. The defendant used the plaintiff's name, likeness, or identity for their own advantage without consent. This has a statutory counterpart at Civil Code § 3344, which supplies minimum statutory damages of $750 plus profits attributable to the use, and attorney's fees to the prevailing party — a two-way award, unusually.
The constitutional right
Article I, § 1 of the California Constitution, amended by initiative in 1972 to add "privacy" to the enumerated inalienable rights.
A plaintiff must show:
- A legally protected privacy interest — either an informational interest in keeping personal data from being disseminated, or an autonomy interest in making intimate personal decisions without interference.
- A reasonable expectation of privacy in the circumstances.
- Conduct constituting a serious invasion of that interest.
Then the court balances, weighing the invasion against legitimate competing interests. The constitutional claim is not absolute — a defendant with a substantial justification may prevail even on a real invasion.
The threshold is deliberately high. A trivial or ordinary intrusion is not a constitutional violation, and the "serious invasion" element does substantial filtering.
How long you have to file
Two years for the common law torts, under CCP § 335.1.
But false light and public disclosure claims arising from a publication may take one year, under CCP § 340(c), where the claim is in substance a defamation claim by another name — courts look at the gravamen rather than the label. Do not assume two years for a publication-based privacy claim.
The single-publication rule applies to publication-based claims, so continued availability of material online does not restart the clock.
Two years for the constitutional claim.
Six months to present a government claim where a public entity is involved.
What has to happen before you file
Nothing for the common law and constitutional claims.
Unless a public entity is a defendant — the Government Claims Act's six-month presentation requirement.
Character: no pre-suit prerequisite.
Who can be sued — and who cannot
Anyone, for the common law torts.
And here is the significant feature: private parties can be sued under the constitutional right. Unlike the federal constitutional protections, California's privacy right is not confined to state action. Employers, insurers, hospitals, retailers, and technology companies are all proper defendants.
Only living persons — the common law privacy torts do not survive the plaintiff's death and cannot be brought on behalf of the dead. Civil Code § 3344.1 is the exception, creating a separate, descendible right of publicity for deceased personalities.
Newsgathering defendants have substantial constitutional protection, and a disclosure of a matter of legitimate public concern defeats the private-facts tort regardless of how offensive it was.
Common defenses
Consent, express or implied — including consent buried in a terms of service agreement, which is the central battleground in technology cases.
No reasonable expectation of privacy. Information already public, conduct in a public place, or a workplace with a clear monitoring policy.
Not highly offensive to a reasonable person, which is an objective standard and a real filter.
Legitimate public concern, which defeats the private-facts tort. Newsworthiness is construed broadly.
Truth is not a defense to the private-facts tort — but it is a complete defense to false light.
The litigation privilege, Civil Code § 47(b), for disclosures made in or about a judicial proceeding.
Anti-SLAPP, under CCP § 425.16, where the claim arises from speech or newsgathering on a matter of public interest — with a mandatory fee award, an automatic discovery stay, and immediate appealability. Media defendants use it routinely and successfully.
Constitutional protection for publication of lawfully obtained truthful information about a matter of public significance.
The competing-interest balancing on the constitutional claim.
What the claim pays
General damages for mental distress, humiliation, and harm to dignity — recoverable without economic loss, which is the substance of most of these claims.
Special damages where proved.
Under Civil Code § 3344: the greater of $750 or actual damages, plus the profits from the unauthorised use attributable to it, plus punitive damages — and attorney's fees and costs to the prevailing party, which runs both ways.
Punitive damages under Civil Code § 3294 on clear and convincing proof.
Injunctive relief.
No fee-shifting on the common law or constitutional claims themselves.
Jury trial: yes on damages.
The wiretapping wave — read this before relying on anything
A large volume of California privacy litigation now runs on the California Invasion of Privacy Act, Penal Code § 630 et seq., rather than on these torts — website session recording, chat analytics, and tracking pixel claims, brought under CIPA's wiretapping and pen register provisions because CIPA supplies statutory damages of $5,000 per violation where the common law torts require proof of a highly offensive intrusion.
That wave is legally unstable in a way these torts are not. Legislation narrowing the pen register branch has been moving through the Legislature, courts are divided on the core theories, and defendants have been winning an increasing share on the merits.
Treat CIPA and the privacy torts as separate questions. These four torts and the constitutional right are durable and long-settled. The statutory wave riding alongside them is neither, and anything written about it has a short shelf life. See the CIPA page for the current state of it.
What people get wrong
"I'll sue for invasion of privacy." Which one? There are four common law torts plus a constitutional claim, with different elements. Pleading the label alone draws a demurrer.
"It's true, so they can publish it." Truth is a defense to false light and defamation. It is not a defense to public disclosure of private facts.
"The constitution only protects me from the government." Not California's. The state constitutional privacy right reaches private parties.
"They recorded me but never showed anyone." That is intrusion upon seclusion, which requires no publication at all.
"It happened in public, so nothing is private." Usually right, but not always — there can be a reasonable expectation of privacy in aspects of conduct even in public places.
"I have two years." For intrusion, generally yes. For a publication-based false light or private-facts claim, a court may apply the one-year defamation period based on the gravamen.
"They used my photo, so I'll get real money." Civil Code § 3344's minimum is $750, though profits attributable to the use and fees can make it much larger.
"My relative's privacy was invaded before they died." The common law privacy torts do not survive death.
Where it came from
The four privacy torts entered American law through an 1890 law review article and were systematised into the four-branch structure in the mid-twentieth century. California adopted all four.
Then California did something unusual. In 1972 the voters amended article I, § 1 by initiative to add privacy to the state's inalienable rights, and the ballot argument identified the target specifically: the accumulation of personal information in government and business records, and its use without the subject's knowledge.
That legislative history is why the right runs against private parties. The voters were told the amendment would reach both, and courts have applied it accordingly — making California's privacy right substantially broader than the federal constitutional protections it superficially resembles.
The balancing framework came later, and it reflects the courts' recognition that a right this broad needed internal limits. A privacy claim that required only an invasion, without weighing competing interests, would have been unworkable against employers, insurers, and institutions with legitimate reasons to hold personal information.
The current pressure is technological and is being felt through statutes rather than these torts. The common law torts require a highly offensive intrusion, which most data collection is not. Statutory claims with fixed damages do not — and that is where the litigation has gone.
Common questions
Is invasion of privacy one claim?
No. There are four common law torts — intrusion upon seclusion, public disclosure of private facts, false light, and appropriation of name or likeness — plus a claim under the California Constitution and a statutory claim under Civil Code § 3344. They have different elements, and you must specify which you are bringing.
Can I sue a company under the California constitutional right to privacy?
Yes. Unlike federal constitutional protections, California's privacy right reaches private parties, not just government actors.
They published something true and embarrassing. Do I have a claim?
Possibly. Truth does not defeat the public disclosure of private facts tort — but the information must have been private in fact and not of legitimate public concern, and newsworthiness is construed broadly.
They recorded me but never shared it. Is that anything?
Yes. Intrusion upon seclusion requires no publication at all — the intrusion itself is the wrong.
How long do I have?
Two years for intrusion and the constitutional claim. A publication-based false light or private-facts claim may take the one-year defamation period, depending on the gravamen of the claim.
What about website tracking and session recording claims?
Those are usually brought under the California Invasion of Privacy Act rather than these torts, because it supplies statutory damages. That area is moving quickly and is far less settled than the common law torts.