As technology and the internet continue to reshape how we interact with one another, it is only natural that a growing segment of the population is concerned about protecting their privacy. To better understand one’s rights in this technological era, it is important to understand the history of and basic principles behind privacy law. If you suspect your privacy rights have been violated, you should contact a privacy law attorney, who can place the circumstances you describe into their proper legal context. Being somewhat educated about privacy law, however, will help you have a productive and intelligent discussion.
This is not the first time in American history when technology compelled us to become more concerned with protecting our rights to privacy. Privacy law became increasingly important between 1850 and 1890 as newspaper circulation grew 1,000 percent, sensationalistic or “yellow” journalism grew in popularity, and Kodak introduced its first mass-market camera in 1901. While this allowed people to expand their understanding of the world and each other, it also made it possible for information and images to be transmitted more easily and without explicit permission. That climate of change incited Samuel D. Warren and Louis D. Brandeis to write an article entitled “The Right to Privacy,” which the Harvard Law Review published in 1890. Their fundamental premise was that the law must keep pace with the changing times and that these advances should not compromise a company’s or an individual’s right to privacy.
Today in the United States modern tort law divides invasion of privacy into four categories: Intrusion of solitude and seclusion, public disclosure of private facts, false light, and appropriation. The common theme is that we have a right to expect a certain amount of privacy and control over our own reputation and personal information. Looking at each of these elements more in depth provides a better understanding of what this means in the context of the internet, Facebook, and technology law.
Intrusion of solitude occurs when someone exposes another person to unwarranted publicity, and intrusion of seclusion occurs when someone intrudes physically, electronically, or otherwise upon someone’s private space or information. In some ways, intrusion of seclusion is more straightforward than intrusion of solitude. In determining intrusion of seclusion, the courts consider whether there is an expectation of privacy, if an intrusion, invitation, or exceedance of invitation is present, and if deception, misrepresentation, or fraud was engaged to gain admission or gather information. Intrusion is primarily concerned with gathering information by unlawful means, and publication of that information is not required. Trespassing, stealing information, eavesdropping, or soliciting information under false pretenses all amount to intrusion of seclusion.
Intrusion of solitude, on the other hand, is more complicated. How does one determine whether attention is unwarranted? One famous example is Marjorie Kinnan Rawlings’s memoir, Cross Creek. In 1944, Zelma Cason, who was portrayed as a character in the book, successfully sued for invasion of privacy but, ultimately, was not awarded any damages. One could possibly argue that cyber bullying is an intrusion of solitude considering the intensity and aggression directed at a private individual in those circumstances.
The second category is public disclosure of private facts, which involves the dissemination of truthful private information that a reasonable person would find objectionable. If the information is neither newsworthy, a matter of public record, nor of public interest, publishing or disclosing that information is a violation of privacy. Medical records are an excellent example of protected, intimate information that require personal explicit permission before they can be shared.
False light is similar to defamation and aims to protect a person’s emotional or mental well-being. The court considers whether the Defendant published the information about the Plaintiff, if it was done with malice, if it places the Plaintiff in a false light, and if the information would be highly offensive or embarrassing to reasonable people. To some extent this criteria is highly subjective and can vary depending upon the jurisdiction.
Lastly, appropriation is the unauthorized use of a person’s name or likeness to obtain personal gain or commercial advantage. For example, using someone’s name or likeness without their explicit permission in an advertisement, fictional work, or part of a product is considered appropriation and a violation of privacy.
So, what does all this amount to in the world of the internet, social media sites, and electronic commerce? For their part, businesses and commercial websites must be careful about what information they collect, how they protect it, and how that information is used or shared. For private individuals, reading someone’s email or hacking someone’s computer, gathering and disseminating intimate details about someone without his or her permission, and maliciously using private information to embarrass or intimidate someone can all be considered privacy and technology law violations. On the other hand, you also need to be proactive about protecting your information, explicitly stating your privacy preferences to companies and individuals, and monitoring your own online presence. While it may seem the boundaries of privacy are quickly evaporating these days, there are legal protections and remedies in place to ensure your privacy rights are not compromised.
