The "New" privacy and the "Old": Is applying the tort law of privacy like putting high-button shoes on the internet?

Communication Law and Policy

Volumn 17, Issue 2, 2012, Pages 107-132

  Zimmerman, Diane Leenheer ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84859631317     PISSN: 10811680     EISSN: None     Source Type: Journal    
DOI: 10.1080/10811680.2012.662884     Document Type: Article

References (130)

1. The multiplicity of interests, and the often conflicting claims about the nature of privacy, once led Robert Post to lament that "[p]rivacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all."
2. Robert C. Post, Three Concepts of Privacy, 89 GEO. L. REV. 2087, 2087 (2001).
3. DANIEL J. SOLOVE, UNDERSTANDING PRIVACY 172 (2008).
4. Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
5. The authors wrote: In general. the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.
6. Id. at 216.
7. The first state to adopt the tort of invasion of privacy was Georgia in a dispute involving the use of the plaintiff's name to endorse an insurance company.
8. Pavesich v. New England Life Ins. Co., 50 S.E. 68, 73-74 (Ga. 1905).
9. There were, in fact, other legal theories outside the tort law of privacy that also addressed violations of a plaintiff's reasonable expectations about the use of her personal data. One is the existence of a confidential relationship, obligating the recipient of information not to disclose it to unforeseen third parties.
10. William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960).
11. False light cases were targeted against the press and entertainment media.
12. See, e.g., Cantrell v. Forest City Publ'g Co., 419 U.S. 245 (1974) (news report)
13. Geisler v. Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980) (work of fiction).
14. Misappropriation claims could not be brought for uses of personal information in journalistic reporting, but they nonetheless targeted public media through attacks on advertisers, entertainment media, and disseminators of what I call information products (such as posters, baseball cards or tee shirts).
15. See, e.g., Midler v. Young & Rubicam, Inc., 849 F.2d (9th Cir. 1988) (advertising)
16. Haelen Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) (baseball cards).
17. See Spahn v. Julian Messner, Inc., 233 N.E.2d 840 (N.Y. 1967).
18. The Supreme Court first applied First Amendment limitations to actions for defamation in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
19. Only three years later, the Court concluded that false light cases were by necessity subject to similar restrictions.
20. In Time, Inc. v. Hill, 385 U.S 374 (1967)
21. the Court ruled that plaintiffs could not succeed in false light actions unless they could prove that the falsehood in question was knowingly false or uttered without any regard to its likely veracity.
22. Id. at 389.
23. Accord, Cantrell v. Forest City Publ'g Co., 419 U.S. 245 (1974).
24. Several states have refused to adopt the tort of false light.
25. See, e.g., Elm Med. Lab., Inc. v. RKO General, Inc., 532 N.E. 2d 675, 681 (Mass. 1989)
26. Renwick v. News & Observer Publ'g Co., 312 S.E. 2d 405 (N.C. 1984)
27. Cain v. Hearst Corp., 878 S.W. 2d 577 (Tex. 1994).
28. For a general discussion of the problems with this branch of tort law
29. see Diane Leenheer Zimmerman, False Light Invasion of Privacy: The Light that Failed, 64 N.Y.U. L. Rev. 364 (1989).
30. See Robeson v. Rochester Folding Box Co., 171 N.Y. 538 (1902).
31. For a discussion of the right of publicity and its relationship to misappropriation
32. see Diane Leenheer Zimmerman, Who Put the Right in the Right of Publicity?, 9 DEPAUL J. ART & ENTER. L. 35 (1998).
33. For general discussions of publicity rights, see Sheldon W. Halpern, The Right of Publicity: Commercial Exploitation of the Associative Value of Personality, 39 VAND. L. REV. 1199 (1986)
34. Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 127 (1993).
35. See, e.g., Danielle Keats Citron, Mainstreaming Privacy Torts, 98 CAL. L. REV. 1805 (2011).
36. See, e.g., Cason v. Baskin, 20 So.2d 243 (Fla. 1944) (finding that the defendant invaded privacy merely by describing plaintiff's personality in a generally favorable way in her book).
37. The earliest court to adopt the common law right of privacy, in Pavesich v. New England Life Ins. Co, 50 S. E. 68 (Ga. 1903)
38. nonetheless cautioned that freedom of speech was a more important right than the right of privacy, and that an individual should not be allowed to "assert his right of privacy in such a way as to interfere with the free expression of one's sentiments and the publication of every matter in which the public may be legitimately interested."
39. Id. at 74.
40. See RESTATEMENT (SECOND) OF TORTS § 652D (1977).
41. See Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort, 68 CORNELL L. REV. 291 (1983).
42. One critic of the conception that private information is limited to that trenching on one's intimate life and one's secrets is Julie Cohen. Cohen, who largely focuses in her privacy writings on such issues as government surveillance and commercial data aggregation, argues that invasion of privacy today is largely a product of deferral to commercial interest in profits and to government security claims. She would say that privacy is every bit as implicated by misuse of data about our public lives as our private ones.
43. See, e.g., Julie E. Cohen, Privacy, Ideology, and Technology: A Response to Jeffrey Rosen, 89 GEO. L. J. 2029, 2036-37, 2040 (2001) (data collection for marketing and government surveillance are chief privacy problems).
44. Further discussion on these forms of privacy invasions can be found in Julie E. Cohen, Privacy, Visibility, Transparency, and Exposure, 75 U. CHI. L. REV. 181 (2008)
45. Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000) [hereinafter Cohen, Subject as Object].
46. See also, SOLOVE, supra note 2, at 34-37 (criticizing the emphasis in privacy on protection of intimacy).
47. This point ismade by Danielle Citron, who writes, "While Twenty-first century technologies continue to interfere with individual privacy, they magnify the harm suffered. The searchable nature of the Internet extends the life and audience of privacy disclosures, exacerbating individuals' emotional and reputational injuries."
48. Citron, supra note 14, at 1808.
49. Presumably, none of the players gave a lot of thought to privacy implications, from the young men's perspective, of disseminating an evaluation of their sexual performances, accompanied by the men's photographs. This is a chronic complication in thinking about privacy and who gets its protection. When a person chooses to make personal disclosures, it is common that those disclosures will reveal important information about the lives of those with whom she is involved. Because those associated with the person who wants to tell her life story may well object to being included, protecting their privacy might well mean barring her from talking about her own life.
50. Support for the argument that the authors' definition of "private" was very broad may be found in Amy Gajda, What If Samuel D. Warren Hadn't Married a Senator's Daughter?: Uncovering the Press Coverage That Led to "The Right to Privacy," 2008 MICH. ST. L. REV. 35 (speculating that the triggers for the article were Warren's unhappiness over press coverage of his wedding and of the deaths and funerals of his motherand sister-in-law).
51. A legitimate debate exists over the kinds of personal behavior that are pertinent to this question. A choice to have a sex partner outside marriage, for example, will be for some an indelible moral stain that, in their eyes, disqualifies the individual from holding a position of public trust.
52. For others, the perceived appropriateness of the partner would be the dividing line. For still others, the matter would be one of indifference. I think it fair to guess that Warren and Brandeis would have opposed calling this kind of information "newsworthy" in any but the most extreme cases.
53. As the Supreme Court noted in Time, Inc. v. Hill, 385 U.S. 374, 388 (1967),
54. "Exposure of the self to others in varying degrees is a concomitant of life in a civilized community." Part of the reason this must be so, the justices went on to add, was that our society places such a high value on free speech.
55. See, e.g., Sidis v. F-R Publ'g. Corp., 113 F.2d 806, 809 (2d Cir. 1940) (finding that a story of childhood genius and his later life is newsworthy).
56. Just recently, Sidis reappeared as the subject of an essay on National Public Radio's All Things Considered titled "Meet William James Sidis: The Smartest Guy Ever?", available at http://www.publicbroadcasting.net/kcur/.artsmain/article/12/1338/1753163/TheaterPerformance/Meet.William.James.Sidis.The.Smartest.Guy.Ever.
57. Harry Kalven, Privacy in Tort Law - Were Warren and Brandeis Wrong?, 31 L. & CONTEMP. PROBS. 326, 336 (1966).
58. Injunctions are in theory available to stem further distribution of materials that invade privacy.
59. See Commonwealth v. Wiseman, 249 N.E.2d 610 (Mass. 1969) (issuing a limited injunction, eventually dissolved, to prevent the showing of Fredrick Wiseman's Titticut Follies).
60. They are exceeding rare, however, and if publication has already occurred, getting existing copies out of circulation would be difficult even with analog media; on the Internet, it may be impossible.
61. See HELEN NISSENBAUM, PRIVACY IN CONTEXT 81-84 (2010) (autonomy as value protected by privacy)
62. SOLOVE, supra note 2, at 93 (privacy enables "our participation in public and community life")
63. Cohen, Subject as Object, supra note 19, at 1373 (privacy provides individuals with opportunity to experiment with how they present themselves to the world)
64. Citron, supra note 14 (accord).
65. See, e.g., Gates v. Discovery Commc'ns, Inc., 101 P. 3d 552 (Cal. 2004) (account of twelve-year-old crime does not invade plaintiff's privacy).
66. See RODNEY A. SMOLLA, Privacy and the First Amendment - Publication of Private Facts, SMOLLA & NIMMER ON FREEDOM OF SPEECH § 24.5 (2010).
67. College students are adults for most purposes; a serious question exists whether the law could be more protective of younger children without running afoul of First Amendment constraints, but a full discussion of this issue would require extensive separate treatment to do it justice.
68. Oprah Winfrey is credited with jump-starting the popularity of confessional television.
69. See Deborah Tannen, Oprah Winfrey, TIME, June 8, 1998, available at http://205.188.238.181/time/time100/artists/profile/winfrey.html.
70. The star's talk show began in the mid 1980s and became nationally syndicated in 1986, well before the Internet became part of daily life.
71. See http://www.oprah.com/pressroom/Oprah-Winfreys-Official-Biography.
72. See Caitlin Flanagan, The Hazards of Duke, 307 THE ATLANTIC 87, 95 (2011).
73. Brian Stelter, A Racy Show with Teenagers Steps Back from A Boundary, N.Y.TIMES, Jan. 20, 2011, at A1.
74. The suggestion that breach of confidentiality be available to deal with disclosures by social acquaintances is explored in Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L. J. 123 (2007).
75. See Sonja R.West, The Story of Us: Resolving the Face-Off Between Autobiographical Speech and Informational Privacy, 67 WASH. & LEE L. REV. 589, 620-25 (2010) (criticizing the idea that breach of confidentiality is appropriate as a solution to disclosures by friends and acquaintances).
76. Daily Times Democrat v. Graham, 162 So. 2d 474 (Ala. 1964).
77. Concerns have also been raised about the fact that the availability of this information aggravates the potential for invasive commercial profiling or government spying.
78. Advantages range all the way from reconnecting with old friends to the facilitation of information transfer in the case of disasters. According to the New York Times, the Federal Emergency Management Agency is working with Twitter to develop new methods of communicating with the public in emergencies.
79. Ashley Parker, Twitter's Man on Capitol Hill Is an Evangelist Whose Message is the Medium, N.Y. TIMES, Jan. 30, 2011, at 18.
80. Some newspapers, for example, had policies against identifying rape victims by name.
81. See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 528 (1982) (noting that newspaper's report of victim's name a violation of its own policy).
82. The entire sordid story is retold in Harding's biography on Wikipedia, along with a link to the video.
83. See http://en.wikipedia.org/wiki/TonyaHarding.
84. Long before the Internet era, Judge Richard Posner argued that the right of privacy is suspect because it protects the ability of individuals to manipulate their public image and misrepresent themselves to others.
85. Richard A. Posner, The Right of Privacy, 12 GA. L. REV. 393 (1978).
86. Cf. ANITA L. ALLEN, WHY PRIVACY ISN'T EVERYTHING: FEMINIST REFLECTIONS ON PERSONAL ACCOUNTABILITY (2003).
87. Allen argues that claims of privacy must often be tested against claims of accountability. "We are accountable," she writes, "for nominally private conduct both to persons with whom we have personal ties and to persons with whom we do not."
88. Id. at 2.
89. Helen Nissenbaum argues, for example, that "[p]rivacy's moral weight, its importance as a value, does not shrink or swell in direct proportion to the numbers of people who want or like it, or how much they want or like it. Rather, privacy is worth taking seriously because it is among the rights, duties, or values of any morally legitimate social and political system."
90. NISSENBAUM, supra note 28, at 66.
91. Some examples of the application of this principle can be found in Grimsley v. Guccione, 703 F. Supp. 903, 910 (M.D. Ala. 1988) (When a plaintiff cooperates in making material public, there is no right of privacy.)
92. Sipple v. Chronicle Publ'g Co., 201 Cal. Rptr. 665 (Cal. App. 1984) (Plaintiff's homosexuality is not private because his sexual orientation was known among members of gay community.)
93. Langford v. Vanderbilt Univ., 287 S.W.2d 32, 38-39 (Tenn. 1956) (Something a plaintiff put into a public record cannot be the subject of a privacy action.).
94. See, e.g., Peckham v. Boston Herald, Inc., 719 N.E.2d 888, 891 (Mass. App. 1999)
95. Porter v. Channel 7 of Detroit, 17 MED. L. RPTR. (BNA) 1898 (Mich. Cir. Ct. 1990) (Once a plaintiff tells others about a relationship, she cannot claim it is private.)
96. Sipple, 201 Cal. Rptr. 665 (Cal. App. 1984).
97. A famous example is O'Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891), where a woman who held out her arm for a vaccination was deemed to have consented, even though she did not do so expressly and later objected.
98. Mohr v.Williams, 104 N.W. 12 (Minn. 1905) is a well-known illustration; the surgeon had permission to operate on one of the patient's ears, but instead operated on the other after finding that it was in worse condition. He was held to have committed a battery on the patient.
99. Consent was generally ineffective, for example, where the conduct was likely to lead to death - for instance, consent was unlikely to bar wrongful death action in the case of a duel.
100. Children, for example, are deemed incapable as a legal matter of giving consent to a wide variety of activities. Any argument about the effect of consent in privacy must therefore take account of the age of the subject of the publicity. One fairly recent example of the kind of controversy that can erupt over whether courts should respect or disregard consent was the dispute over the legitimacy of agreements by women to act as surrogate mothers who would be bound to give up the child at birth.
101. Not surprisingly, questions about what are legitimate and illegitimate newsgathering techniques exist at the margins, and how they are resolved can have substantial impact on the ability to uncover and disseminate publicly significant information.
102. See generally, Diane Leenheer Zimmerman, I Spy: The Newsgatherer Under Cover, 33 U. RICH. L. REV. 1185 (2000).
103. See, e.g., Sanders v. American Broad. Cos., Inc., 85 Cal. Rptr. 2d 909, 915-16 (Cal. Sup. 1999) ("[T]he fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law.").
104. See Lisa W. Foderaro, Private Moment Made Public, Then a Fatal Jump, N.Y. TIMES, Sept. 29, 2010, available at http://www.nytimes.com/2010/09/30/nyregion/30suicide.html?pagewanted=1&r=1
105. Melanie Muller, Rutgers' Student's Death Sparks Shock, Outrage, DAILYCOLLEGIAN.COM, Oct. 12, 2010), http://dailycollegian.com/2010/10/12/rutgers%E2%80%99-student%E2%80%99s-death-sparks-shock-outrage/.
106. The law is clear that individuals are normally free to use or further disseminate information they receive from a wrongdoer as long at the recipients played no role in the illicit acquisition of the material.
107. See, e.g., Bartnicki v. Vopper, 532 U.S. 514 (2001) (The press is free to publish material obtained from source who illegally intercepted cell phone calls.).
108. See Planned Parenthood of Columbia/Willamette, Inc. v. American Coal. of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (finding information on Web site to constitute a true threat to the safety of personnel in abortion clinics).
109. Courts do, however, occasionally target particular bits of information that they deem especially risky.
110. See, e.g., Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992) (finding that accepting advertisement for "gun for hire" creates foreseeable risk of harm so that magazine liable when murder results)
111. City of Kirkland v. Sheehan, 29 MED. L. RPTR. (BNA) 2367 (Wash. Super. Ct. 2001) (finding social security numbers to be generally protectable based on risk of harm from publication).
112. These kinds of cases have been relatively rare, and are generally highly controversial. In Soldier of Fortune, for example, the claim was not that the defendant intended harm to occur, but rather that it should have foreseen the likelihood that someone would contact the advertiser to arrange an assassination. Normally, courts are very reluctant to find liability based solely on general foreseeability.
113. See Sanders v. Acclaim Entm't, Inc., 188 F. Supp. 2d 1264 (D. Colo. 2002) (survivors of deceased have no cause of action against makers of violent movies and videogames)
114. Zamora v. Columbia Broad. Sys., 480 F. Supp. 199 (D.C. Fla. 1979) (defendant not liable for violent programming that allegedly led boy to commit murder)
115. Oliva N. v. Nat'l Broad. Co., Inc., 178 Cal. Rptr. 888 (Cal. App. 1982) (defendant not liable where crime depicted on television show followed by copycat attack on plaintiff).
116. The evolution of First Amendment jurisprudence away from the bad tendency test is outlined in David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. CHI. L. REV. 1205 (1983).
117. The Federal Trade Commission recently issued a preliminary report recommending that consumers be given a "do not track" option so that they can avoid having their usage tracked by third party aggregators or by search engines. Preliminary FTC Staff Report, Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Business and Policy Makers (2010), available at http://www.ftc.gov/os/2010/12/101201privacyreport.pdf.
118. This is an example of an approach to redesign of the architecture of the Internet or individual sites of the sort that could enable users to make sounder choices about the scope of dissemination they desire for their information without the need to remake the tort system or reduce free speech protections.
119. The messy history of Facebook and user privacy is outlined in detail in James Grimmelmann, Saving Facebook, 94 IOWA L. REV. 1137 (2009).
120. The founder of Facebook,Mark Zuckerberg, has called the site's privacy policy "a third-rail issue."
121. Jose Antonio Vargas, The Face of Facebook: Mark Zuckerberg Opens Up, NEW YORKER, Sept. 20, 2010, at 54, available at http://www.newyorker.com/reporting/2010/09/20/100920fafactvargas.
122. According to the Electronic Privacy Information Center, the organization that brought the complaint: Facebook's privacy policy doesn't actually protect users; it misleads them into believing that their information is safe, while the site actually discloses information to third-party application developers and the public. Facebook's revised privacy policy mandates the sharing of large amounts of personal information, whether or not users want to share that information.
123. EPIC, Frequently Asked Questions Regarding EPIC's Facebook Complaint, available at http://epic.org/privacy/socialnet/fbfaq.html.
124. Although Facebook altered its policies in 2010 to deal with the criticisms, many observers remain convinced that the response is insufficient.
125. See, e.g., Katie Kindelan, Mark Zuckerberg Says Facebook's Privacy Policy Is a Third-Rail Issue: Do You Agree?, SOCIAL TIMES, Sept. 14, 2010, http://www.socialtimes.com/2010/09/mark-zuckerberg-says-facebooksprivacy-policy-a-%E2%80%98third-rail-issue%E2%80%99-do-you-agree/.
126. The company settled with the FTC in late 2011, further modifying its privacy policies and agreeing to regular outside reviews of its performance.
127. See Celian Kang, Facebook Settles FTC Privacy Complaint, Agrees to Ask Users' Permission for Changes, WASH. POST, Nov. 29, 2011, available at http://www.washingtonpost.com/business/technology/facebooksettles-ftc-privacy-complaint-agrees-to-ask-users-permission-for-changes/2011/11/29/gIQAqyJC9Nstory.html.
128. A recently published guide to parents on how to help their teenagers configure privacy settings on Facebook is thirty-five pages long, suggesting the complexity of managing the current system.
129. See Ann Collier & Larry Magid, A Parents' Guide to Facebook, SAFEKIDS.COM, Nov. 2010, http://www.safekids.com/2010/11/08/a-parents-guide-to-facebook-provides-hands-on-tools-for-teens-privacy-and-safety/.
130. NISSENBAUM, supra note 28, at 231-32.