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.
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.”
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.”
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.”
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.”
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.
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?
Sources (Click Case for Link!):
Pavesich v. New England Life Ins. Co., 122 Ga. 190, (1905).
Restatement (Second) of Torts § 652A (1977).
Swerdlick v. Koch, 721 A.2d 849, 857 (R.I. 1998).
Flake v. Greensboro News Co., 212 N.C. 780, (1938).
Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, (La. 1979).