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  • Dean Smith

Privacy in the Digital Age: Part III, Invasion of Privacy

In this series’ previous articles, we discussed reasonable expectation of privacy as it related to the home, and audio recordings – specifically the difference between one- and two-party consent as well as the various state regulations.

Perhaps the most complex facet of the reasonable expectation of privacy is its boundaries within the public sphere and defining what falls inside this realm is a contemporary battleground. Oxford Bibliographies states that, “The ‘public sphere’ is generally conceived as the social space in which different opinions are expressed, problems of general concern are discussed, and collective solutions are developed communicatively.”

In other words, the public sphere is a very big place, and the evolution of technology, particularly the advent of social media, has called the public expectation of privacy into question on a regular basis. News outlets reporting massive data breaches is practically a daily event and threatening practices, such as doxing, often generate new interpretations of long-standing privacy laws.

In this article, we’ll take a broad look at the what constitutes “invasion of privacy,” to set the stage for our in-depth examination of public privacy, particularly on the internet and social media.

Invasion of Privacy

Most states define invasion of privacy through four types of claims: Intrusion upon solitude or seclusion, public disclosure of private facts, false light privacy, and appropriation of one’s name or likeness. Each of these claims applies to both the public and private spheres, but for the purposes of this and the following articles, we’ll be exploring the public ramifications.

Intrusion of Solitude

Intrusion of solitude generally means that a person has intentionally intruded, by physical, technological means or otherwise, into the seclusion of another person. In most states, a claimant must show the intrusion is considered highly offensive to a reasonable person. For example, “peeping Toms,” hidden bathroom cameras, and illegal interception of private phone conversations typically fall into this category.

Taking video or images of an individual in public would not be invasion of privacy; however, using specialized equipment, e.g. drones, to record video or images of someone inside their home would qualify.

Appropriation of Name or Likeness

Although this tended to define images or names that have commercial value, the explosion of identity theft in recent years has often pointed to this law for when a client is seeking damages.

The thrust of “appropriation of name or likeness” is when “any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose may bring an action for infringement.” Typically, this involves an individual or company using the name or image of an individual for profit without permission.

This is not the law’s only application, however. For example, a private investigator who obtains confidential information through impersonating another individual without permission has appropriated that person’s name or likeness.

Public Disclosure of Private Facts

Laws relating to public disclosure of private facts are a rarity in the battle over privacy, and whether an individual violated these rules often fall into the murky realm of first amendment protection. Unlike defamation, i.e. libel or slander, the truth of disclosed information isn’t a defense. When an individual publicly disseminates truthful information that does not qualify as a public concern, and/or a reasonable person would find the revelation of that information to the public offensive, they person who disclosed the information could be liable for damages.

For example, the maiden name of a former prostitute who was acquitted of murder was revealed in a film about the case. Since the trial, she had moved to another city, gotten married and adopted a new lifestyle. Her new friends were unaware of her past, so the disclosure of this true but embarrassing information was deemed an invasion of her privacy.

False Light

A false light claim shares several commonalities with defamation and public disclosure of private facts claims, as each allows an individual to sue when misleading information is publicly disseminated, putting a person in a “false light,” but is not technically false. The key difference is that defamation claims apply to public broadcasting of false information and as with defamation, sometimes First Amendment protections prevail.

For example, a homeless man sues a newspaper for taking his photograph and publishing it with the headline, “Homeless man self-delivers own baby.”

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