Privacy Outline
I. Tort Privacy
A. Origins of Privacy Law
i. The Warren and Brandeis article
1. Privacy is the more general right of the individual to “be let alone.”
2. New technologies can make non-consensual intrusions upon privacy possible—to W&B this explains the need for privacy tort law (as opposed to contract law—deals with people in privity with each other)
3. Big change is not just cameras are cheaper and widely available, but exposure times are dropping—can take photos without consent
4. Paternalistic strand to W&B critique of gossip, argument for privacy
a. Privacy law should push people twds involvement in politics by making gossip more expensive to publishers, helping make news more attractive
b. Question if news is really a good substitute—maybe people will sub towards confessional blogs, soap operas, fiction, etc.
ii. Galella v. Onassis: Paparazzi stalks Jackie Onassis and kids—court says no newsworthiness exception for paparazzi
1. If we give Onassis the types of rights that she sought and was granted, we’re benefiting her—she can go out in public without fear of harassment
2. Big city elites will also benefit—regular people have the benefit of seeing celebs out and about—this is a benefit that those with high incomes can capture
B. Privacy’s Functions and the Inclusion Tort
i. Intrusion upon seclusion
1. an intentional intrusion by D
2. upon the seclusion or solitude of P
3. that is highly offensive to a reasonable person
ii. Alan Westin talks about 4 privacy interests:
1. Solitude
2. Intimacy
3. Anonymity
4. Reserve
iii. Nader v. General Motors: Nader says GM is harassing him—want to scare him into submission so he won’t criticize them publicly (intimidation), looking for information about Nader to discredit him
1. This case is about the 2nd element of the tort—whether GM intruded on Nader’s private affairs
2. The court says whatever info he shared with friends is fair game—once the info is shared with anyone, it’s not private (least privacy protection of any case!)
a. Most cases go the other way and say you can disclose info to friends, associates and have it remain private
3. Intrusion upon seclusion is an intentional tort, but it does not require malice—the investigative journalist who goes too far and the GM exec who goes too far because of ill will get treated the same
4. Court says that under “certain circumstances,” surveillance can be so over-zealous to require prosecution, but they’re not willing to say that this conduct is over-zealous
iv. Summers v. Bailey: Georgia court holds that surveillance on public street where surveillance aims to frighten or torment person is an unreasonable intrusion upon a person’s privacy
v. Hamberger v. Eastman: Landlord installs secret recording device in tenant’s bedroom. Court finds for Ps even though landlord never listened.
C. Deceit & Privacy
i. Etzioni: communitarian
1. Gossip is good because it helps ensure that members of the community will cooperate with each other and behave
2. Privacy inhibits gossip, so it inhibits the most attractive means of social control while encourages a less attractive means of social control
3. Likes “small town America”—people’s actions are transparent
4. Different from W&B view that gossip is bad and socially destructive
ii. Posner: law and econ
1. analogizes social privacy to privacy in commercial transactions, which is bad (inefficient)—makes similar argument in social relationships—we need all information to make good decisions
2. privacy is a mechanism for perpetuating interpersonal fraud—Posner doesn’t like this
3. law should give people tools to unmask interpersonal fraud
4. Only works if people makes the right judgments about the information that they have
iii. Dietmann v. Time: P is disabled vet was doing herbal medicine. Time lied its way in to get pictures and write a story, vet was subsequently arrested
1. Court holds for Dietmann (P)
iv. Desnick v. ABC: P is doc w/big ad budget is performing surgery on people who might not need it. ABC Sam Donaldson’s crew goes undercover and gets the video of this
1. In this case the court (Posner, 7th circ) goes the other way and holds for ABC.
2. Posner the judge is behaving like Posner the academic—Desnick is defrauding his trusting patients—necessary for someone to come in and unmask him
3. Posner sees journalists as a friend of truth
a. Willing to let journalist deceive to further truth
4. Why did these cases come out differently?
a. Great need to unmask successful fraudster in Desnick, lesser need to unmask unsuccessful fraudster in Dietmann.
b. Posner focuses on distinction btw home and office—Lior says this is just building block, not explanation itself
v. Food Lion v. ABC: ABC reporters investigated allegations of food-handling practices supermarkets operated by Food Lion. Journalists are found liable, but don’t have to pay much, so its basically a victory for them
1. Deception = pretending that they were going to work in the grocery store for awhile—they would never hire someone if they thought they would only stay for a couple weeks
vi. Miller v. Brooks: D wife claimed she had consent to enter estranged husband (P)’s house to put video camera in ceiling.
1. Court says that even an authorized entry can be trespass if a wrongful act is done in excess of and in abuse of authorized entry.
vii. Pearson v. Dodd: former employees of Sen. Dodd broke into office to steal files. Columnists publish article based on info.
1. Court refuses to hold columnists liable—they weren’t the ones who stole the files.
viii. Shulman v. Group W. Productions: P was in car accident and local news had cameras there and in the helicopter and a mike on nurse’s lapel and so on
1. Court holds for P—says no privacy for photos at accident scene, but can’t record confidential conversation
2. This case is about the “Highly offensive” element of intrusion upon seclusion tort—court says the Shulman intrusions are highly offensive
a. Private convos btw patient and nurse
b. Ride along in helicopter ambulance
3. Doctrinal sloppiness in this case: court’s language about subsequent broadcast of conversation and video footage—suggests that subsequent broadcast makes it more likely than the intrusion is highly offensive to reasonable person—this is wrong
a. Highly offensive = intrusion only—not what you do with info you obtain
ix. Sanders v. ABC: reporter secretly videotaped conversations of phone psychics. Ds say employee lack reasonable expectation of privacy in convos because he could be heard by others.
1. Court disagrees—says the fact that privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. (Privacy is not black and white—sliding scale!)
2. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.
D. Second Chances
i. Sidis v. F-R Publishing Corp.: Sidis is boy genius, his father publishes a lot about him, but Sidis runs away from the limelight. Years later, a reporter from the New Yorker tracks him down, interviews him and publishes a “Where are they now” story. Sidis sues.
1. Court finds no liability
a. Once a public figurer, always a public figure
b. People have a right to find out what happened to someone as famous as Sidis
c. James Thurber’s argument—this is instructive on what happens when you shove kids into the limelight
d. Court doesn’t address that Sidis was a child when he became a celebrity, and due to the decisions of his father rather than his own decisions
ii. Melvin v. Reid: “Red Kimono” movie made based on P’s life as prostitute tried (and acquitted) for murder.
1. This case comes out differently from Sidis—court finds liability
a. The court thinks it’s wrong that the movie producers “dragged her back into the limelight” after she had rehabilitated herself.
b. Perhaps the difference is that that Melvin wasn’t as well known as Sidis—no additional value in using her real name—not instructive to viewers, purely consumer demand
2. Lior says this is a weaker case for protecting privacy
a. She made decisions as an adult
b. Decision to engage in unlawful behavior
c. Melvin has been out of the limelight for a lot less time than Sidis
d. Autonomy interests are weaker
e. If you’re someone interacting with Melvin today you have a greater need to know about her past than you do about Sidis (Posner “unmasking” theory)
iii. Briscoe v. Reader’s Digest: Magazine article mentioned P hijacking a truck 11 years earlier. Since then, P had rehabilitated himself. Court held article was newsworthy, but that they didn’t need to use his name.
iv. Gates v. Discovery Communications, Inc.: CA Sup. Ct. held that the U.S. Sup. Ct.’s decision in Cox and its subsequent pronouncements have fatally undermined Briscoe’s holding that a media D may be held liable in tort for recklessly publishing true but not newsworthy facts concerning rehabilitated former criminal.
E. Privacy’s Meaning
i. Public disclosure of private facts
1. Giving publicity
2. To a matter concerning the private life of another
3. Where the disclosure is highly offensive to a reasonable person
4. The matter disclosed is not of legitimate concern to the public (not “newsworthy”)
ii. Gill v. Hearst Publishing Co.: Couple is photographed at L.A. Farmers Market in “romantic pose.” Photo is published first in Harpers (ok with them), but later re-published in Ladies Home Journal (not ok with them)
1. Which way should they decide the case?
a. Normative (protective zone, how plaintiff is portrayed)
b. Empirical (# of people viewing, consent to publicity)
2. In this case, it’s much easier to make the normative argument (they’re in public, they’re portrayed well) than the empirical argument (not many people viewing, no consent)
iii. Penwell v. Taft Broadcasting: TV crew filmed P’s (mistaken) arrest. Court dismissed P’s public disclosure action because the arrest was filmed in public and was “left open to the public eye.”
iv. Daily Times Democrat v. Graham: D published picture of P at state fair as fun house blew her skirt over her head
1. Court finds for the P here
2. How does this case hold up under normative analysis?
a. She’s not in protective zone
b. But, she’s NOT portrayed well (very embarrassing)
3. Empirical approach might be way to go—she did not consent!
a. If the goal of the law is to figure out what a “reasonable” expectation of privacy is, the empirical approach is the way to go—ask the jury what they would expect
v. McNamara v. Freedom Newspapers: Newspaper published photo of high school soccer player’s inadvertently exposed genetalia. Court finds Graham unpersuasive—says at the time of photo McNamara was voluntarily participating in spectator sport in public
vi. Times Mirror Co. v. Superior Court: P (Doe) discovered body of murdered roommate. Doe’s identity was leaked to public. Newspaper argued that the matter was not private because Doe revealed it to certain friends, but court held that Doe had not rendered otherwise private info public by sharing it with a few people.
vii. Multimedia WMAZ, Inc. v. Kubach: HIV-positive P disclosed that he had disease to 60 people in support group. P then went on TV show and obscuring process was botched. Court said that telling support group did not extinguish his privacy interest.
viii. Duran v. Detroit News: Columbian judge who indicted Pablo Escobar fled after receiving death threats. She told a few people about her identity. Reporters then revealed her address. Court rejected her public disclosure claim because she had exposed her identity “to the public eye.”
1. Court uses probabilistic inquiry (what a reasonable person would have thought), but Lior says they get answer wrong—just because she used her name at restaurants, doesn’t mean she was consenting to media using her name in story
2. Instead, Lior says use social network theory: In the absence of the defendant’s conduct, how likely is it that the info would find its way to a large group of people?
a. How interesting is info?
b. Nature of group to which exposed? (strangers v. support group)
c. Who is it disclosed to? (David Lat v. Lior)
d. Do the applicable social norms encourage disclosure or oppression of info (ex: AA meeting)
ix. Miller v. Motorola: Plaintiff has undergone a mastectomy and reconstructive surgery. She shared this info to her health care provider, but it’s disclosed to her coworkers at Motorola
1. Court finds liability even though it is only disclosed to a few people—disclosure to a few “intimates” (special relationship) is actionable
a. This is contra Restatement’s disclosure to the public
2. Lior says this case was wrongfully decided
a. makes unsophisticated people worry about privacy tort law
b. underestimates potential for small scale disclosures to be deterred through informal sanctions like gossip, severing of friendship, etc.
c. relationship btw publicity element and privacy element for pub disclosure tort—once IL has said disclosure to even a few people can amount to publicity, logically IL is required to hold that once a few people know something it can no longer be private
i. The Nader route—because he had disclosed facts to a few people, it was no longer private—this is minority approach
d. Robert Post defense of Miller—we care more about what people in our immediate circles think of us than about strangers in a distant land
i. Lior says not dispositive—people who know you and have exposure to you and are given discreditable fact about you can put it in context—individual disclosure of something private won’t do that much damage. People who don’t know you will have more dramatic reaction
F. Consent
i. Y.G. v. Jewish Hopsital of St. Louis: couple used in vitro. People at the hospital knew, but couple kept info from others because it was against their church. At a party at the hospital for in vitro couples, a camera crew filmed the couple.
1. Court finds liability—said the couple did not consent to be filmed, just because they went to the party
2. Focuses on expectations—they did everything they could to avoid publicity
3. The fact that they consented to share info with other IVF couples does not mean they consented to share with the entire world
4. How would Judge Posner decide this?
a. He would say the Gs are engaged in deception. They are lying to fellow parishioners about how they got pregnant. All the defendants are doing are unmasking a form of interpersonal fraud
ii. Barnhart v. Paisano Publications: Plaintiff is at biker convention, flashes her boobs to about 10 people, magazine snaps a photo and publishes it
1. She loses—court says no invasion of privacy (even though she exposes to only a few people)—why?
a. Waiver/Consent—she freely revealed intimate details that most people would not reveal