Information Privacy Outline - Seltzer PDF

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Information Privacy OutlineI. Generallya. Common Law Originsi. Brandeis & Warren Harvard article – new tort needs to be recognized to counter yellow journalism + technological advancesb. Defining Privacyi. Informational Privacy - right to control information about you and personal data; ...

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Information Privacy Outline I.

Generally a. Common Law Origins i. Brandeis & Warren Harvard article – new tort needs to be

recognized to counter yellow journalism + technological advances b. Defining Privacy i. Informational Privacy - right to control information about you and personal data; image you present to the world ii. Differs from decisional privacy – right to make decisions; but increasing intertwines with decisional privacy as use of data expands and limits individual autonomy. iii. CONSIDER: 1. whether the privacy interest has a competing public interest; how the law can balance the various interests 2. how technologies can advance privacy interests (i.e. through encryption) 3. which Weston interest (below) a privacy law addresses iv. Why we care about privacy: 1. Privacy as a Good/Commodity a. Privacy = important to conception of self, personal dignity b. Question of control; control helps build levels of trust, friendship 2. Privacy as an Instrument a. Might want to use privacy as protection from government overreaching b. Economic value privacy from marketers; privacy from price discrimination; privacy from insurance companies c. Security d. Self-Expression e. Democratic Good – transparency back from government v. Modern concerns: 1. Improved Technology a. Surveillance, Aggregation, Storage 2. Media That’s Easily Stored/Quickly Released a. Blogging, Email vi. Privacy Tensions: 1. Speech, Transparency, Security, Law Enforcement, Copyright, Market vii. Lessig’s Taxonomy of Constraints 1. Law a. State laws b. Federal Video Rental List law 1

Related common law (defamation, rights of publicity) d. Constitutional (State, Federal Penumbras) e. Related statutory law (trade secret) 2. Market a. Market pressure for company privacy policies that benefit consumers 3. Code a. Ability to collect more info 4. Norm a. Social standards; trust with others viii. Sidis v. F-R Publishing Corp (2d Cir 1940) The New Yorker runs a where-are-they-now piece about a boy genius who now lives a modest, poor life of obscurity. The New Yorker also ran an ad touting the story. Action: (1) privacy violations outside of NY for the printing of the article and (2) violation for privacy rights under NY’s § 50/51. 1. “Everyone will agree that at some point the public interest in obtaining information becomes dominant over the individual’s desire for privacy.” 2. The Court suggests a classification in between public official and private figure  “questionable and indefinable ‘public figure’ status. Though his public figure status was when he was a child, the question of whether he fulfilled his promise remained a relevant topic to the public interest. [develops a ‘newsworthiness’ defense] 3. “Malice intent” = not required for privacy action c. Philosophical Perspectives i. WESTIN: 1. Four basic states of individual privacy a. Solitude (separation from group) b. Intimacy (acting as part of a small unit) c. Anonymity (in public but free of identification/surveillance) d. Reserve (mental distance w/ intimate group members) 2. Four basic functions of privacy a. Personal Autonomy (mask + incubation time for growth) b. Emotional Release (relaxation + deviation + safety valve) c. Self-Evaluation d. Limited/Protected Communication 3. Protect these to give autonomy; personal release 4. CONSIDER: which of the Westin categories above, a privacy law fits into c.

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Westin’s concept of privacy extends beyond an individual (i.e. “intimacy” protects a small group of people) COHEN: privacy as an autonomy interest 1. How far should that autonomy reach? Should we be able to go out and erase things that were previously public? SOLOVE: collection of interests that can’t be boxed up neatly; Privacy depends on context – no common denominator 1. Consider: what practices interrupt the privacy interest 2. Surveillance, interrogation, information gathering, information processing, information dissemination, intrusion [each of these will have different, overlapping interests] ALLEN: coercion of privacy SCHWARZ: how much ACTUAL choice you have when asked to give up your privacy 1. Consider: what should the government’s role be in regulating privacy? 2. Right to move beyond: Is this a privacy interest the law protects well? CRITICS on PRIVACY - Too much emphasis on the individual’s right to privacy harms the community 1. Posner: privacy = deception 5.

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Media & Privacy a. Public Disclosure of Private Facts i. Tort Elements 1. Publicity a. Usually must be wide-spread, not just person to

person Private Fact Highly Offensive to a Reasonable Person Not Newsworthy ii. Most states recognize, except: Nebraska, NY, North Carolina, North Dakota, Rhode Island and Virginia. iii. Gill v. Hearst Publishing Co. (Cal. 1953) Defendant printed picture of couple embracing in the public diner they owned in Harper’s Bazaar. 1. Right of privacy – norm of the ordinary man 2. Constitution protects news as well as entertainment 3. By the couple’s voluntary action of canoodling in public, they waived their right of privacy for that pose. Media here = eyes and ears of public who can’t be there 4. DISSENT: Couple waived their right for a tiny fraction of the public (i.e. those in the diner) and not for millions of reader; whether it’s something that would offend a reasonable person is for the trier of fact, who could find the pose sultry or alluring and thus offensive 2. 3. 4.

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SELTZER: This standard gives press leeway about what’s newsworthy or in the public interest 6. NOTE: Many courts follow Gill in that something done in public can’t be private Daily Times Democrat v. Graham (Ala. 1964) News photographer working on a story about a local fair takes a picture of a mother and sons as they exit a fun house without their knowledge. The fun house has an air jet at the exit, so in the picture, the mother’s dress is flown up and her panties are revealed. 1. Here: nothing newsworthy about the photograph, even if paired with a newsworthy story. 2. Though the court generally supports the proposition of once in public, can’t be private, they think this is taking things to the extreme due to the spontaneous and involuntary nature of the photograph. 3. SELTZER: She’s in public just like the Gills but this is involuntary/instantaneous so she has a slightly larger zone of privacy that normal person in public Private Matter of Fact --- Secrets 1. Limited Secrets (HIV man; in vitro couple) 2. Social Network Theory (“assess the probability that information disclosed to one member of a particular group or community will be disseminated to others outside of that realm”) a. How interesting the information is (more interesting, more likely to spread) b. Norms that a particular group has with regard to spreading kind of information at issue c. The way the group is structured and how information generally flows within and beyond the group. Retracting Statements to the Media: VirgiI (9th Cir 1995) – (body surfer; once he withdrew his consent before publication, information told to reporter was still private ) Further dissemination of previously disclosed information: “Media entities that further disseminate information already disclosed by another media entity are not liable for public disclosure.” BUT leaking MORE INFO that previously can lead to liability. Publicity 1. Miller v. Motorola (Ill. App. 1990 – woman tells company nurse of mastectomy; management then tells other employees) Issue: was this sufficient publicity for a private fact tort? Court holds: public disclosure may be satisfied by proof that plaintiff has a special relationship with the “public” to whom the information is disclosed. 5.

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Restatement explanation of publicity seems at odds with Miller v. Motorola. Many courts have held that disclosure to a small group of individuals does not constitute publicity. ix. Newsworthiness 1. Courts use generally three types of newsworthy tests a. “leave it to the press” – deference to editorial judgment b. Restatement – “customs and conventions of the community” – line b/w entitled info & sensational prying c. “Nexus” test – logical relationship between complaining individual and the matter of legitimate public interest 2. Consider – how much time has passed/lapsed since the last newsworthy aspect of the individual? Not definitive though 3. Sipple v. Chronicle Publishing Co. (Cal. App. 1984) Gay guy who helped thwart a presidential assassination is outed by San Fran paper. He sues for invasion of privacy through disclosure of private facts. Court finds that in this case: a. Facts published were not private i. Sexual orientation already in the public domain 1. Participated in gay activism; went to gay bars 2. Doesn’t matter if his family didn’t know ii. Court: There can be no privacy with respect to a matter which is already public. Further publicity from defendant can’t bring liability. b. Publication was newsworthy i. Whether the matter is of legitimate public interest which in turn must be determined according to community mores ii. When the publicity becomes a morbid and sensational prying lives for its own sake. 1. Publications were prompted by political concerns 2. Homosexuality does not shock the community’s notion of decency. c. Sipple: Involuntary public figure! i. Court: through conduct become a public figure 4. Shulman v. Group W Productions (Cal 1998) –Adopting the “nexus” test for newsworthiness, a court finds that 2.

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broadcasting severely injured woman in accident was newsworthy to the story of emergency workers a. Why to keep her identity: authenticity b. Advice for those who want to not get consent: i. Make sure it’s as newsworthy as possible x. Disclosure of Identifying Information – courts SPLIT 1. Barber v. Time Inc. – existence of rare disease was newsworthy but the patient’s name was not 2. Haynes v. Alfred A. Knopf – former abusive husband’s name OK to include in wife’s biography because he would have been identifiable anyways t friends/families PLUS it lends credibility 3. Gilbert v. Medical Economics Co. (10th Cir. 1981) By using real doctor’s name in medical malpractice article, it adds important impact and credibility 4. Workable compromise? Initials and pseudonyms but hard to verify. xi. First Amendment Limitations on Public Disclosure Tort – Some view First Amendment and privacy as mutually reinforcing: stronger privacy supports the right to assemble and to speak anonymously. The tort for truthful disclosure is of concern however for the press because of the threat and costs of lawsuits might lead the press to censor themselves. To counter this effect, the tort has an internal limitation of ‘newsworthiness.’ Other commentators have sought an external First Amendment limitation on the disclosure tort. 1. Background of First Amendment analysis: a. Some categories of speech (i.e. obscenity) is not protected by First Amendment b. Scrutiny applied i. Strict 1. Compelling government interest + least restrictive means ii. Intermediate 1. Substantial government interest + narrowly tailored iii. Content-based regulation – targets particular messages iv. Content-neutral regulation restricts speech regardless of its message (time, place or manner restrictions + regulations with incidental effects on press) 2. Cox Broadcasting v. Cohn (US 1975) P’s daughter was raped by a group of men and later died as a result. Officials never disclosed her name, likely due to Georgia regulation § 26-9901, which makes it a misdemeanor to publish or

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broadcast the name or identity of a rape victim. Later, at the men’s trial, counsel gave a reporter a copy of the indictment (availably publicly) that included the victim’s name. The reporter later broadcast the victim’s name over the air. P, daughter’s family, brought an action for money, in light of § 26-9901 as an implied tort for invasion of privacy. Issue: “whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public [judicial] records” a. Court first starts by recognizing that in recent years privacy has been given much more protection and recognition. Questions have recently been raised about whether there can be constitutional protection for private individual’s information if it does not serve the greater public. b. Media defendant suggest a broad holding that the media can never be held civilly or criminally liable for publishing information that is neither false nor misleading, even if it’s damaging to reputation or individual sensibilities. c. The Court rejects such a broad holding and instead holds more narrowly that the First Amendment forbids the state from punishing “publication of truthful information contained in official court records open to public inspection.” Policy: otherwise media would be timid, self-censor. It’s the government’s fault for including the name in the public sphere. Access to court reporting is an important government watch-dog function of the press. d. Two justifications for holding: i. The name was in the public domain; once there, can’t prohibit ii. Greater transparency/accountability in the criminal justice system 3. The Florida Star v. B.J.F. (US 1989 Police inadvertently release rape victim info; Florida Star accidentally includes it in a police blotter story (against its own internal policy); BJF files a negligence case (imputed from criminal statute that made it a crime for any medium of mass communications to print the name of a rape victim). BJF wants to overturn Cox; Florida Star wants broad 1st amendment protection applied to the category of truthful reporting of rape victims. The Supreme Court does neither in a limited holding:

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Applies Daily Mail test of truthful reporting – triggering conditions: i. Truthful information – Yes ii. Legally obtained - Lawfully obtained information is protected 1. HERE: info was lawfully acquired; article generally is important to public interest, even if specific name is not iii. Matter of public significance? Yes 1. Public interest (protecting rape victim’s privacy, physical safety and encouraging victims of crime to come forward) – very important b. BUT HERE liability of publication is not “needed” to satisfy the Daily Mail standard. Three reasons why the “means” of the statute fails: i. Manner of acquisition – don’t want to put the press in the position of having to scrutinize the legality of info it receives from the government; government could have protected it ii. Facial Overinclusiveness – the statute reaches circumstances where the states’ interest is not met at all (i.e. if the victim wanted to come forward and gave the name to the press) – restricts more speech than it has too iii. Facial Underinclusiveness – only prohibits dissemination by “instruments of mass communication” – small local papers could also bring the same harm, if not more so c. Thus, the statute is likely to result in self-censorship and timidity d. Dissent: This is very different from Cox because the same judicial accountability interest was lacking. Also in Daily Mail, it was rights of those accused of crimes, which should be different from those who are victims; there was a sign in the police press room not to publish rape victims’ names. 4. Information About Past Crimes a. Melvin v. Reid (Cal 1931) California Supreme Court ruled that a former prostitute-turned housewife had a cause of action against a screenplay/film based on her earlier seedy life that used her real maiden name. POLICY: rehabilitation; reformation a.

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Briscoe v. Reader’s Digest - Cal court found that article about man’s hijacking of truck 11 years prior was newsworthy but that including his name was not relevant. Court emphasized how much time had passed c. Gates v. Discovery Communications (Cal 2004) Cal: Cox and Daily Mail decisions of the Supreme Court overrule Briscoe and Melvin because details of their crimes were availably publicly; thus in the future couldn’t punish newspapers for disclosure of these types of past crimes 5. Physical Threats – First Amendment a. Planned Parenthood v. American Coalition of Life Activists Anti-abortion group posted private personal information of abortion doctors (name, address, family info, social security numbers) + pictures of dead and wounded abortion doctors as a result of violence. 9th Circuit ruled that this was speech equivalent to a true threat of violence that caused fear, and thus was not protected under the First Amendment 6. Two different perspectives: a. Volvovish – general demise of Public Disclosure tort is better for society, education, free flow of information b. Solove – don’t want to erode too much b/c lose First Amendment interest b/c privacy rights allow us to speak more freely b.

b. Appropriation i. Restatement (Second) of Torts § 625C: “One who appropriates to

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his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” Values of P’s name/likeness: reputation, prestige, social or commercial standing, public interest NY Statute § 50/51 1. Use of Name, Portrait or Picture, or Voice 2. Of a Living Person 3. For Trade or Advertising 4. Without Written Consent Originally the tort was dignity based but now it’s more often property- based – RIGHT OF PUBLICITY Name or Likeness 1. Carson v Here’s Johnny Portable Toilets (6th Cir. 1983) – Johnny Carson brought an invasion of privacy and a right to publicity claim against D for using his slogan on the Tonight Show in D’s company name.

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Privacy right – NO Right of Publicity – Overturns DC’s finding that there was no action because no “name or likeness” was used because it deemed the interpretation too narrow. Instead, the 6th Circuit broadened the right to include “identity” of the celebrity. Because Johnny Carson was “identified” with the phrase “Here’s Johnny,” he had a cause of action. c. Dissent: this allows celebrities to remove phrases from the public domain and create a monopoly of language 2. Further tort extensions of “name and likeness” a. Nicknames b. Picture of car of famous racecar driver c. Fictional characters (Marx brothers) d. Bette Midler’s voice 3. Madow: power to license = power to surpress vi. § 50/51 Connection to Matter of Public Interest 1. Must be “commercial” use – not parody, satire, art, news, etc. 2. In NY – real relationship test – the use of a photo must be in connection with the story in order to beat the “commercial” label – can’t be an advertisement in disguise 3. First Amendment limitation on Publicity Right. Finger v. Omni Publications (NY Ct. App. 1990) – Science magazine illustrates a story on increased fertility with a picture of a man and woman and their six kids with the subhead – “Want a big family?” The family sues under NY 50/51 saying that there’s no real relationship between the fertility drug story and their family since they did not use invitro, did not use caffeine and that they did not participate in the study at the heart of the story. The Court rules however, that the ‘newsworthy’ exception must be applied liberally and that the family falls generally within the ‘fertility’ gist of the story because of the size of the family a. Rule isn’t turning on whether or not you’re a celebrity; but the court’s assessment of damages might turn on whether you’re a celebrity b. Even though printing the picture of the family is not NEEDED to illustrate the fertility story, another rule forbidding the use might chill the press from using pictures in news stories vii. Zacchini v. Scripps-Howard Broadcasting Co. (US 1977) Entire 15-second human cannonball act taped and broadcast on air without permission. Issue: Whether the First Amendment and Fourteenth Amendment immunized broadcaster from violation of a. b.

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state “right of publicity” statute? Court says no, reversing the Ohio Supreme Court decision in favor of the media defendant. 1. Can still report on it; performer just needs to be paid a. Doesn’t s...