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AMI424Defense—Invasion of Privacy—Consent

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 424
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 424 Defense—Invasion of Privacy—Consent
(Defendant) contends that (plaintiff) consented to any invasion of privacy and has the burden of proving that (plaintiff), by words or conduct or both, freely and voluntarily consented or led (defendant) reasonably to believe that [he][she] had [authorized][or][agreed to](defendant)'s conduct in [describe the conduct in issue, e.g., publicizing of facts, use of plaintiff's likeness, etc.].
[If you find from the evidence in this case that this proposition has been proved, then your verdict should be for (defendant).]
NOTE ON USE
Do not use the bracketed paragraph when the case is submitted on interrogatories.
Do not use with AMI 420 since the absence of consent or other authority is part of a plaintiff's burden of proof under such a claim.
COMMENT
The privileges and defenses applicable to defamation also apply to invasions of privacy involving publication. Restatement (Second) of Torts §§ 652F to 652G (1977).
In Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002), the court rejected Wal-Mart's defense that plaintiff consented to the invasion of his privacy, concluding that plaintiff did not validly consent to the scope of the search conducted by Wal-Mart. Plaintiff agreed to permit Wal-Mart employees onto his property to search for “fishing equipment and life jackets” but not more. Id. at 723. Plaintiff protested and, therefore, did not by his conduct acquiesce to the expanded-scope of the search. Id. at 726. Even though plaintiff executed a written consent-to-search form presented by law enforcement officials contacted by Wal-Mart to accompany Wal-Mart employees during the search, the court determined there was sufficient evidence presented to uphold the jury's determination that plaintiff's consent was not given freely and without coercion. Id. at 724–25. See also Olan Mills, Inc. of Tex. v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962) (upholding finding of invasion of privacy when no consent was obtained from plaintiff prior to distribution of her photograph).
In Alexander v. Pathfinder, Inc., 189 F.3d 735, 742 (8th Cir. 1999), the court determined that plaintiff consented through her actions to audio recordings she claimed were an invasion of privacy because she saw defendant's employees with tape recorders but failed to protest.
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