Privacy 1.0
The views
expressed in The
Right to Privacy
gained traction in a Georgia Supreme Court opinion where plaintiff
alleged that
his right to privacy had been violated by the publication, without
consent, of
his picture in an insurance advertisement.
“So
thoroughly satisfied are we that the law recognizes
. . . the right of privacy, and that the publication of one's picture
without
his consent by another as an advertisement . . . is an invasion of this
right, that
we venture to predict that the
day will come that the
American bar will marvel that a contrary view was ever entertained .
.
.”
The Georgia Supreme Court was correct in its prediction. By 1938 the Restatement of Torts recognized an “interest in not having [one’s] affairs known to others or his likeness exhibited to the public.” This first attempt at defining the legal interest in privacy has understandably been criticized as “amorphous” and “not very satisfactory.” Privacy Torts § 1:1.
The Doctrine Develops
William
Prosser proposed a
more
developed construction of privacy torts in his 1960 California Law
Review
article Privacy. Prosser
identified four distinct privacy
torts which are explained by the Restatement (Second) of Torts:
One who invades the right of
privacy of another is subject to liability for the resulting harm to
the
interests of the other.
The right of privacy is
invaded by
(1) unreasonable intrusion
upon the
seclusion of another, as stated in § 652B; or
(2) appropriation of the
other's name
or likeness, as stated in § 652C; or
(3) unreasonable publicity
given to
the other's private life, as stated in § 652D; or
(4) publicity that
unreasonably places
the other in a false light before the public, as stated in §
652E.
Of the four privacy torts (1-4) that have “become crystallized and generally been held to be actionable as a matter of tort liability”, the torts most relevant to discussion of Google Maps are:
1. intrusion upon seclusion,
2. appropriation of name or likeness, and
3. unreasonable
publicity of private life.
Intrusion Upon Seclusion
The
intrusion upon
seclusion claim
could theoretically be used regarding photography by Street View
vehicles.
However, absent a highly
offensive intrusive
photograph, the intrusion permutation of the tort is more likely to be
successfully invoked regarding “WiFi snooping.
Black
Letter Law:
“There
are three elements which must be established for an invasion-of-privacy
tort
based on the concept of intrusion upon a plaintiff's seclusion or
solitude:
(1)
an intentional intrusion by the defendant;
(2)
into a matter which the plaintiff has a right to keep private;
(3)
by the use of a method which is objectionable to the reasonable
person.”
With regard to
photography, a successful civil claim for intrusion is challenging. A
defendant must be proved to have
infiltrated a protected zone of privacy:
“A
showing of intrusion…is not made when the plaintiff has
merely
been…photographed or recorded, in a public place. Rather, a
plaintiff must show
the defendant penetrated some zone of physical or sensory privacy
surrounding,
or obtained
unwanted access to data about,
the
plaintiff.”
Case Law:
Where Defendant continuously
photographs his
neighbor's business activities, the Zone of
Privacy has been interpreted narrowly regarding photographs:
“The
plaintiffs were not entitled, nor could they reasonably have expected,
to
maintain privacy with respect to those activities taking place outside
of their
residence in a location visible to any passersby.”
Perhaps “WiFi
Snooping” is a stronger claim, it has been suggested that
activities that are similar to WiFi snooping may constitute invasion:
“Some
examples of intrusion include physically invading a person's home or
other
private place, eavesdropping
by wiretapping
or
microphones, peering through
windows, persistent telephoning,
unauthorized prying into a bank account, and opening personal mail of
another.”
Appropriation of Name or Likeness
Google walks a tight line
regarding
the appropriation tort.
If the
identities of individuals photographed by the Street View service were
not
obscured, then a person likely has a colorable appropriation of
likeness
claim.
Black
Letter Law:
“The
common form of invasion of privacy under the rule here stated is the appropriation and use of the
plaintiff's name or
likeness to
advertise the defendant's business or product, or for some similar
commercial
purpose.”
“In
fact, the unwarranted publication of a person's name, or the
unauthorized use
or publication of his or her photograph or other likeness, may
constitute the
most common means of invasion of the right of privacy. It has even been
said
that the protection of name and likeness from unwarranted intrusion or
exploitation is the heart of the law of privacy.”
Case
Law:
A successful civil claim for
appropriation, in contrast to intrusion, is more easily made based on
photography:
“the
unauthorized use of one's photograph in connection with an
advertisement or
other commercial enterprise gives rise to a cause of action which would
entitle
the plaintiff…to a judgment for nominal damages, and to
injunctive relief, if
and when the wrong is persisted in by the offending parties.”
Unreasonable Publicity of Private Life
It has been suggested that
unreasonable publicity of private life is the privacy tort most suited
to a
challenge of Street View technology.
However, the fact that Street
View vehicles are intended to
operate only
on public streets, and the requirement of an “offensive and
objectionable”
disclosure make this tort claim difficult to make successfully.
Black
Letter Law:
There are three basic elements of the cause of action for invasion of privacy based on public disclosure of private facts:
(1) there must be a public disclosure;
(2) the facts disclosed must be private facts, rather than public ones; and
(3)
the matter made public must be one which would be offensive and
objectionable
to a reasonable person of ordinary sensibilities.
"Publicity,"…means
that the matter is made public, by communicating it to the public at
large, or
to so many persons that the matter must be regarded as substantially
certain to
become one of public knowledge.
Case
Law:
In the late 1970’s
Mr. and Mrs. James
Jaubert sued their local newspaper because the paper had taken and
published
photographs of their home on the front page of the newspaper. This
case indicates the difficulty of proving
that a photograph taken from a public place is an invasion of privacy.
“…according
to established principles of the law of privacy, no right to privacy
attaches
to material in the public view”
“It
is clear from the record that the Jauberts' home was plainly visible
from the
public street, and that passersby were presented with a view of the
property
which was identical to that published by the defendant. Therefore,
plaintiffs
had no right to privacy, regarding the house and its condition;
defendant
committed no fault”
This case highlights the difficulty of making a privacy tort claim based on photographs taken from a public place. This logic is also applicable to overhead photographs taken from public airspace.
What do these guys think about publicity of private life?
Pavesich v. New England Life Ins. Co., 122 Ga. 190, (1905).
Restatement (Second) of Torts § 652A (1977).
Restatement (Second) of Torts § 652C (1977)
Leonard I. Reiser, Privacy, 62A AM.JUR.2d 623 (1990).
Swerdlick v. Koch, 721 A.2d 849, 857 (R.I. 1998).
Hall v. Post, 85 N.C. App. 610, 615, 355 (N.C. Ct. App. 1987) rev'd, 323 N.C. 259, (1988).
Flake v. Greensboro News Co., 212 N.C. 780, (1938).
Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, (La. 1979).
