Invasion of privacy in Texas — three branches, and the one Texas threw out

Privacy in Texas is not one tort but three, and they protect different things. One protects you from being watched. One protects you from being exposed. One protects the commercial value of your name and face.

A fourth — false light — was recognised in other states and rejected in Texas in Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994), on the ground that it duplicated defamation without defamation's protections for the press.

What the claim is

Someone pried into your private affairs, published private facts about you to the public, or used your name or image for their own benefit.

Where the right comes from

Common law. Texas first recognised a right of privacy in Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973), a wiretapping case, describing it as the right to be left alone and free from unwarranted publicity. The disclosure branch was recognised in Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976).

The three branches

Intrusion on seclusion

1. An intentional intrusion, physical or otherwise, upon the plaintiff's solitude, seclusion, or private affairs; and
2. The intrusion would be highly offensive to a reasonable person.

This branch is complete at the moment of the intrusion. Nothing has to be published. Reading someone's mail, planting a recorder, hacking an account, watching through a window, tracking a car, or going through a purse can all support it.

There must be a reasonable expectation of privacy in what was intruded on. A public street, a shared workspace and an open social media account generally supply none.

Public disclosure of private facts

1. Publicity given to a matter concerning the plaintiff's private life;
2. The disclosure would be highly offensive to a reasonable person; and
3. The matter is not of legitimate public concern.

Two features distinguish it from defamation. Truth is not a defence — the branch exists to punish accurate revelations. And publicity means broad dissemination, not the publication to a single third party that defamation requires. Telling one person is not enough; posting it is.

Newsworthiness is the great limit, and it is applied generously to the press. Information already in public records is generally not private.

Misappropriation of name or likeness

1. The defendant appropriated the plaintiff's name or likeness for the value associated with it;
2. The plaintiff can be identified from the use; and
3. The defendant derived some advantage or benefit.

This is the commercial branch — a face on a billboard, a name in an endorsement, a photograph in an advertisement. Since 2025 it overlaps CPRC chapter 98C for impersonation on social media platforms, which carries a mandatory fee award the common-law claim lacks.

Why Texas rejected false light

Cain v. Hearst Corp. refused to recognise a claim for publicity that places a person in a false light. The reasoning was structural. False light would cover the same ground as defamation — a false impression conveyed to the public — while escaping defamation's one-year limitations period, its requirement of a defamatory meaning, and its constitutional fault standards.

The result is a rule with a sharp edge: if the statement is false, the claim is defamation, subject to the one-year period in CPRC § 16.002(a). If the statement is true, the claim can only be public disclosure of private facts, with two years to sue. A plaintiff pleading around a missed defamation deadline by calling the claim an invasion of privacy runs into Cain.

How long you have to file

Two years, for all three branches, under the personal injury period in CPRC § 16.003(a).

Accrual is the intrusion, or the publication.

What has to happen before you file

Nothing. But a claim based on a communication may draw a motion to dismiss under the Texas Citizens Participation Act, CPRC § 27.003, which suspends discovery and shifts fees if it succeeds.

What the claim pays

Mental anguish and emotional distress damages, which are the substance of the intrusion and disclosure branches. No proof of pecuniary loss is required.

The commercial value of the use, in the misappropriation branch — what the defendant would have had to pay for the endorsement, or the profit attributable to the use.

Exemplary damages, on the clear and convincing showing of malice that CPRC § 41.003 requires, within the § 41.008 cap.

Injunctive relief, to stop a continuing intrusion or take material down.

No attorney's fees on the common-law claim. The statutory neighbours are different: chapter 98B and chapter 98C both award fees, which is one reason a plaintiff with intimate images or an impersonation account should look there first.

Who can be sued

The intruder. The publisher, for the disclosure branch. The business that used the image, for misappropriation.

Not an interactive computer service, for material another person provided — 47 U.S.C. § 230 preempts that, and Texas statutes in this area say so expressly.

Where the statutes have taken over

The common-law branches now sit beside a set of Texas statutes that are stronger in every practical respect, because they pay attorney's fees and the tort does not:

• Chapter 98B — unlawful disclosure of intimate visual material, including material generated by an artificial intelligence application, with a mandatory award of damages, costs and fees and a ten-year limitations period.
• Chapter 98C — online impersonation on a social media platform, with mandatory two-way fees.
• Chapter 143 — harmful access by computer, which reaches the intrusion committed by getting into an account.

A plaintiff whose facts fit one of those should plead it. Intrusion on seclusion remains the general claim for everything the statutes miss.

Common defenses

• Consent, express or implied.
• No reasonable expectation of privacy in the place or the information.
• Newsworthiness or legitimate public concern, for the disclosure branch.
• The information was already public, including in public records.
• The statement was false, which under Cain makes it a defamation claim with a one-year deadline.
• The conduct was not highly offensive to a reasonable person.
• Limitations.
• The TCPA, where the claim is based on protected communication.

What people get wrong

Texas has no false light claim. Cain settled that in 1994, and pleading a false statement as an invasion of privacy does not revive an expired defamation claim.

Truth is no answer to the disclosure branch. That branch is about true facts that were nobody else's business.

Intrusion needs no publication. The tort is complete when the snooping happens.

Telling one person is not publicity. The disclosure branch requires dissemination to the public at large.

Fees come from the statutes, not the tort. The common-law claim pays no attorney's fees.

Where it came from

The four privacy torts were catalogued in the mid-twentieth century and adopted piecemeal by the states. Texas took intrusion in 1973, disclosure in 1976, and recognised misappropriation along the way — then stopped.

Cain in 1994 is the moment Texas privacy law diverged from the pattern. Refusing false light kept a single body of law for false statements about people, with a single deadline and a single set of constitutional protections. The cost is that a person misrepresented in a way that is embarrassing rather than defamatory may have no claim at all.

Since 2015 the legislature has been filling the gaps the common law left, chapter by chapter, and the statutes have moved faster than the tort. A privacy problem in Texas today is usually a statutory problem first.

Common questions

How long do I have to sue for invasion of privacy in Texas?

Two years from the intrusion or the publication.

Does Texas recognise false light invasion of privacy?

No. Cain v. Hearst Corp. rejected it in 1994 because it duplicates defamation.

Can I sue if what was published about me was true?

Yes, under the public disclosure branch, if the matter was private, the disclosure would be highly offensive, and it was not of legitimate public concern.

Can I recover attorney's fees?

Not on the common-law claim. Chapters 98B, 98C and 143 all award fees, and one of them may fit your facts.

Someone read my emails without permission. Is that a privacy claim?

It can be intrusion on seclusion, and it is also likely a claim for harmful access by computer, which pays attorney's fees.

A company used my photo in an ad. What do I recover?

The commercial value of the use and any benefit the defendant derived, under the misappropriation branch.

Where these rules live

• CPRC § 16.003 — Two-year limitations period
• CPRC § 16.002 — One-year period for libel and slander
• CPRC § 98B.002 — Unlawful disclosure of intimate visual material
• CPRC § 98C.004 — Liability for online impersonation
• CPRC § 27.003 — TCPA motion to dismiss
• CPRC § 41.003 — Standards for recovery of exemplary damages