Information Privacy Outline

INFORMATION PRIVACY LAW
SCHWARTZ
FALL 2013
 
 
 
 
Sources of Privacy Law:
Tort, evidence, property rights, contract, criminal law, constitutional law (fed and state), Fair Information Practices (FIPs), International Law
 
PRIVACY TORTS
Intrusion upon Seclusion; Public disclosure of private facts; False light; Appropriation of name or likeness
1.        Restatement (Second) of Torts
a.        (1) Intrusion Upon Seclusion (RST 652B)
i.         Remedy where one
(1)     “intrudes upon the solitude or seclusion of another or his private affairs or concerns,” AND
(2)     Intrusion highly offensive to a reasonable person
b.        (2) Public Disclosure of Private Facts (RST 652D) 
i.         Remedy against someone who
(1)     publicly discloses private matter
(2)     that is highly offensive to a reasonable person, and
(3)     is not of legitimate concern to the public
c.        (3) False Light (RST 652E)
i.         cause of actions when one
(1)     Publicly discloses matter
(2)     Placing one in “false light”
(3)     That is highly offensive to a reasonable person
d.        (4) Appropriation (RST 652C)
i.         cause of action against one who
(1)     appropriates to his own use or benefit
(2)     the name or likeness of P
2.        Cases
a.        Lake v. Wal-Mart (Minn. 1998) (naked photos, wal-mart employee)
i.         Facts: Two women get naked pictures developed; Wal-Mart did not give photo because it was “objectionable”; employee develops and distributes around town.
ii.        Held: Minn. Supreme Court adopts Intrusion upon seclusion, disclosure of private facts, and appropriation, but NOT false light
(1)     Case ultimately dismissed against WalMart on remand because employee’s actions outside of scope of work
 
Privacy Tort – 1) Intrusion Upon Seclusion
Elements: (1) Intrusion upon the solitude of another or another’s private affairs; and (2) intrusion highly offensive to reasonable person
a.        Compare also with Paparazzi statutes
1.        (1) Intrusion
a.        Requires reasonable expectation of privacy. Shulman (paraplegic helicopter).
2.        (2) Highly Offensive
a.        RST 652B (comment d):
i.         Standard: “No liability unless the interference with P’s seclusion is a substantial one, highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object.”
ii.        Note, this means that as we become harder to shock, the tort is harder to bring.
3.        Cases
a.        Nader v. General Motors (NY Ct. App. 1970)
i.         Background: Nader writes Unsafe at Any Speed; GM has people call him, harass him, follow him, ask about him through acquaintances to build a file…
ii.        NY RULE:
(1)     Privacy only invaded if:
(a)     (1) Information sought is of confidential nature, and
(b)     (2) D’s conduct unreasonably intrusive
1.        No right when information sought is open to public view.
iii.      Held: Most claims dismissed, but court finds intrusion upon seclusion
(1)     No violation by going through acquaintances, asking about Nader’s past (third party doctrine), accosting him with girls, harassing phone calls
(2)     Violations:
(a)     (1) Unauthorized wiretapping
(b)     (2) Overzealous surveillance
(i)       Mere fact that Nader in a bank does not give someone the right to discover what he’s taking out
(ii)     BUT, if P acted in such as way as to reveal to casual observer, then no right of action.
 
 
 
 
 
 
b.        Intrusion Issue: (Recordings)
i.         Violation (in home)
(1)     Dietemann v. Time Inc. (9th Cir. 1971) (quack does medical work at his home)
(a)     Facts: Time does article depicting P as quack; includes two pictures taken surreptitiously
(i)       No signs, no advertising; reporters lied to gain entry.
(b)     Held: Allows recovery for “invasion of privacy”
(i)       Home issue: “P’s den was sphere rom which he could reasonably expect to exclude eavesdropping newsmen.
1.        Would have been okay for visitors to repeat what they saw, but not record and photograph.
(ii)     No 1st Amend. Protection: 1st Amend not a license to trespass or intrude electronically into home.
1.        Does not matter that person reasonably believed to be committing crime.
ii.        No violation (business)
(1)     Desnick v. ABC (7th Cir. 1995) (Posner, J.) (“Big Cutter” cataract malpractice)
(a)     Facts: ABC reporters go into office, interview patients
(b)     Held: No infringement
1.        Compares to restaurant critics
(ii)     Trespass: No implied consent to cure trespass, but “no invasion in the present case of any ‘specific interests that the tort of trespass seeks to protect.’”
1.        False info ≠ crime, “man pays for sex with counterfeit $100 is not committing battery.”
2.        Reporters entered offices open to anyone interested in services. Videotaped only conversations in professional capacity.
3.        Right of doctors’ privilege meant to protect doctors, not patients.
(c)      Differentiating Dietemann:
(i)       No invasion of a person’s private space. “DIetemann was not in business, and did not advertise his services or charge for them. His quackery was private.”
(2)     BUT, exceeding capacity may create trespass
(a)      “Trespass triggered by the filming in non-public areas . . . was a wrongful act in excess of Ds’ authority to enter premises as employees.” (Food Lion, Inc. v. ABC (4th Cir. 2001) Primetime Live)
(i)       Entered areas not open to customers (compare with patients in doctor’s office…)
c.        In Public
i.         Nader
ii.        Shulman v. Group W. Productions (Cal. 1998) (Emergency Response show, helicopter filming)
(1)     Facts: Ruth filmed after accident, in helicopter, feels privacy invaded.
(2)     Rule: Intrusion elements (1) intrusion into private place, conversation, or matter, (2) in a highly offensive manner.
(3)     Held: Can find triable fact for both issues
(a)     (1) Intrusion based on reasonable expectation of privacy (but not for what was filmed on the road)
1.        Both in interior of rescue helicopter, AND
2.        Conversations in helicopter
(b)     (2) Highly offensive to record in vulnerable position
Paparazzi Torts
4.        California Anti-Paparazzi Act:
a.        Two Types: (1) Physical invasions of privacy; (2) constructive invasions of privacy
i.         RULE: (1) Physical invasions:
(a)     “Where D knowingly enters onto land of another w/o permission to physically invade privacy of P with intent to capture images, recordings, or other impression of P engaging in personal or familial activity
1.        Includes intimate details, interactions with family or significant others
(b)     (1) Trespass to capture image or recording and (2) physical invasion occurs in offensive manner
1.        essentially creates greater damage liability
ii.        RULE: (2) Constructive invasion: Invasion using technology
(a)     “where D attempts to capture, in a manner that is offensive to a reasonable person, any visual image, sound recording, etc, through use of visual or auditory enhancing device, regardless of whether there is physical trespass, if image, recording or impression could not have been achieved w/o a trespass unless the visual or auditory enhancing device was used.”
 
5.        Galella v. Onassis (2d Cir. 1973) (Kennedy widow, kids harassed)
a.        Facts: JFK’s widow followed, harassed her, jumped out in front of kids, etc.
i.         P Galella claims false imprisonment; D counterclaims for damages and injunction
b.        Held:     (1) Cannot keep D and her children under surveillance or follow them; (2) G cannot approach within 100 yards of home or 75 yards of kids or 50 yards of D; (3) G cannot use the name or portrait of D for advertising; AND (4) G cannot communicate with D or kids except by attorney
c.        Court: weighs social value of reporting v. means gathered
i.         Legit countervailing social needs de minimis; went “beyond reasonable bounds of news gathering”; “inexcusable conduct toward D’s minor children.”
Privacy Tort – 2) Public Disclosure of Private Facts (nearly obliterated by First Amendment; legitimate concern)
RST 652D: One who (1) gives publicity to (2) a matter concerning the private life of another is subject to liability if the matter publicized
(a) would be highly offensive to a reasonable person, AND
                        Comment C: “It is only when . . . a reasonable person would feel justified in feeling “seriously aggrieved…”
(b) is not of legitimate concern to the public.
(c) Requires showing: P suffered some kind of mental suffering, shame, or humiliation (Google).
1.        Private Matter
a.        Pics Captured in public
b.        Gill v. Hearst Publihing Co. (Cal. 1953) (couple hugging farmer’s market)
i.         Held: No right to stop publishing. Pose voluntarily assumed in public; not offensive in nature.
(1)     “significant that it was not surreptitiously snapped”
(2)     “voluntarily exposed themselves to public gaze in a pose open to view to any persons…”
(3)     “No privacy in that which has already been made public.”
(4)     Not offensive: Nothing “uncomplimentary or discreditably in the photograph itself.”
(a)     Publication would not be considered beyond limits of decency.
ii.        Dissent:
(1)     Striking a pose in public different from observation by millions of observers in magazine.
c.        Boring v. Google (3d Cir. 2010 (unpublished)) (Google Street View)
i.         “No person of ordinary sensibility would be shamed, humiliated or have suffered mentally as a result of a vehicle entering into his or her driveway and taking a picture.
(1)     Compare to Germany, which required that Street View switch to opt in.
d.        Voluntary v. Involuntary Public Activity
i.         Involuntarily and instantaneously enmeshed:
(1)     Daily Time Democrat v. Graham (Ala. 1964) (funhouse upskirt):
(a)     “We can see nothing of legitimate news value in the photograph. Certainly it discloses nothing as to which the public is entitled to be informed.”
(i)       Photograph “obscene”
(b)     RULE: Even though in public, “to hold that one who is involuntarily and instantaneously enmeshed in an embarrassing pose forfeits her right of privacy merely because she happened at the moment to be part of a public scene would be illogical, wrong, and unjust.”
(c)      Capturing someone in moment of embarrassment different from simply reporting.
ii.        Voluntary
(1)     McNamara v. Freedom Newspapers (Tex. Ct. App. 1991) (soccer genitalia)
(a)     Held: No privacy liability.
(i)       Player intentionally availed himself by playing in public spectacle. Anything that occurred on field was legitimate public concern.
e.        Communication to others may remove privacy interest.
i.         Strahilevitz factors to “social network theory” of “privacy”:
(1)     How interesting is information
(2)     Norms that a particular group has with regard to spreading the kind of information at issue
(3)     The way the group is structured and how information generally flows within and beyond the group.
ii.        Still Private
(1)     Times Mirror Co. v. Superior Court (Cal. App. 1988) (roommate murder): P’s disclosure to limited friends, neighbors, family, police “did not render otherwise private information public by cooperating in the criminal investigation and seeking solace from friends and relatives.
(2)     YG v. Jewish Hospital (Mo. App. 1990) (in vitro, against religion): Ps retain expectation of privacy because “attending limited gathering did not waive right to keep in vitro private with respect to general public.”
(a)     Ps had attended party at hospital, tried to avoid cameras, camera crew filmed them anyway.
(3)     Multimedia WMAZ, Inc. v. Kubach (Ga. 1994) (HIV 60 people): HIV+ P’s disclosure to 60 friends, family, doctors, and support group “did not extinguish his privacy interest because these people ‘cared about him or because they also had AIDS”
(a)     P had agreed to go on TV with fact obscured, sued when obscuring process botched.
iii.      Losing Privacy
(1)     Duran v. Detroit News (Mich. Ct. App. 1993) (Columbian judge): P “exposed her identity ‘to the public eye’ by telling “a few people” of identity.
(a)     Fled Columbia after death threats. Reporters revealed address and bounty.
(b)     Note: This is outlier acc’d to Strahilveitz’s Social Network Theory
(2)     Fisher v. Ohio Dep’t of Rehab (Ohio Ct. Cl. 1998): P’s discussions with co-workers about her child (sexual overtones) “no longer private because P ‘publicly and openly’ told her co-workers.”
(3)     Sipple v. Chronicle Publishing Co. (Cal. App. 1984) (gay P saves President)
(a)     SJ Allowed on two grounds:
(i)       Not private: Appellant’s homosexual orientation already widely known by many people in a number of communities; not so offensive as to shock decency.
(ii)     Newsworthy: (see below)
2.        Public Disclosure
a.        RST indicates disclosure must be to “more than small group; rather, to public at large.” Miller
b.        BUT, where there is special relationship with the “public” to w