Topic Overview
This chapters focuses on concerns over privacy and government and press interference with one's privacy. Marketers, data brokers, and other online businesses also pose a threat to privacy. Many popular sites install key tracking devices, building a profile to sell to advertisers. Cell phone technology and privacy also come under concern as our mobile phones are yet another avenue for sensitive personal information to be leaked. The FTC is the main government agency that protects consumer privacy and enforces federal privacy laws. In response to growing concerns over consumer privacy the FTC has encouraged companies to strive for transparency in how they collect and use consumer information and that given the growing number of connected devices world wide, security should be a priority for companies developing devices.
Defining Key Terms
Appropriation: Using a person's name, picture, likeness, voice, or identity for commercial or trade purposes without permission.
Commercialization: The appropriation tort used to protect people who want privacy.
Right of Publicity: The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes.
Intrusion Upon Seclusion: Physically or technologically disturbing another's reasonable expectation of privacy.
Reasonable Person: The law's version of an average person.
Public Record: A government record, particularly one that is publicly available.
Appropriation: Using a person's name, picture, likeness, voice, or identity for commercial or trade purposes without permission.
Commercialization: The appropriation tort used to protect people who want privacy.
Right of Publicity: The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes.
Intrusion Upon Seclusion: Physically or technologically disturbing another's reasonable expectation of privacy.
Reasonable Person: The law's version of an average person.
Public Record: A government record, particularly one that is publicly available.
Important Cases
Cox Broadcasting Corp v. Cohn (1975): Brought by the father of a seventeen year old rape and murder victim against Cox Broadcasting for including his daughter's name in the report on the basis of the Georgia Privacy Statue. Court ruled in favor of Cox Broadcast, stating that the statue was unconstitutional.
Riley v. California (2014): Landmark Supreme Court case ruling that the warrantless search and seizure of the digital contents of a cell phone is unconstitutional during an arrest.
Katz v. United States (1967): Involving the eavesdropping on Katz by federal agents. Which served to convict him on gambling related charges. Katz challenged this convication on the basis that the recording could not be used as evidence. The Court ruled in Katz's favor stating that Katz is entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play.
Cox Broadcasting Corp v. Cohn (1975): Brought by the father of a seventeen year old rape and murder victim against Cox Broadcasting for including his daughter's name in the report on the basis of the Georgia Privacy Statue. Court ruled in favor of Cox Broadcast, stating that the statue was unconstitutional.
Riley v. California (2014): Landmark Supreme Court case ruling that the warrantless search and seizure of the digital contents of a cell phone is unconstitutional during an arrest.
Katz v. United States (1967): Involving the eavesdropping on Katz by federal agents. Which served to convict him on gambling related charges. Katz challenged this convication on the basis that the recording could not be used as evidence. The Court ruled in Katz's favor stating that Katz is entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play.
Relevant Doctrine
Constitutional Right to Privacy
False Light: A privacy tort that involves making a person seem in the public eye to be someone he or she is not. Several states do not allow this.
Plaintiff's Case
Constitutional Right to Privacy
- Protection comes from the Third, Fourth, Fifth, and Fourteenth Amendments.
- The Constitution protects from governmental invasion of privacy.
- Harlan's reasonable expectation of privacy test from Katz establishes a Fourth Amendment right to privacy when:
- 1. A person exhibits an actual expectation of privacy, and
- 2. Society is prepared to recognize this expectation as reasonable.
The Four Privacy Torts
- 1. False Light: Intentionally or recklessly publicizing false information a reasonable person would find highly offensive.
- 2. Appropriation: Using another's name or likeness for advertising or other commercial purposes without permission (Appropriation includes two different torts, commercialization and right of publicity).
- 3. Intrusion: Intentionally intruding on another's solitude or seclusion.
- 4. Private Facts: Publicizing private, embarrassing information.
False Light: A privacy tort that involves making a person seem in the public eye to be someone he or she is not. Several states do not allow this.
Plaintiff's Case
- Publicizing
- False Facts
- About someone who is identified
- That would be highly offensive to a reasonable person
- Acting intentionally or recklessly (according to Supreme Court) or negligently if plaintiff is a private citizen.
Defense
- Libel defenses
Appropriation - 2 Torts:
- Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this person's name, picture, likeness, or voice for advertising or other commercial purposes without permission is commercialization. It is invading this person's privacy, causing emotional distress.
- 2. Right of Publicity: Applying to someone who wants to be known far and wide, to be a celebrity - a musician, athlete, movie tar, or television personality. Using this person's name, picture, likeness, voice, or identity - or a look alike or sound alike - for advertising or other commercial purposes without permission invades this person's right of publicity. It diminishes the person's economic value.
Commercialization
Plaintiff's Case
- Using a person's name, picture, likeness (drawing, avatar), or voice or identity.
- For advertising or other commercial uses
- Without permission
Defenses
- News
- Public domain
- First Amendment
- Incidental use
- Advertising for a mass medium
- Consent
Artistic Relevance Test: A test used to determine whether the use of a celebrity's name, picture, likeness, voice, or identity is relevant to a dispute work's artistic purpose. Used in cases regarding the infringement of a celebrity's right of publicity.
Transformative Use Test: A test used to determine whether a creator has transformed a person's name, picture, likeness, voice, or identity for artistic purposes. If so, the person cannot win a right of publicity suit against the creator.
Predominant Use Test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff's name or picture more for commercial purposes or protected expression.
Intrusion by Trespass
Plaintiff's Case
- A reasonable expectation of privacy
- Intentional intrusion on the privacy
- The intrusion would be highly offensive to a reasonable person
Defense
- Consent
Private Facts: The tort under which media are sued for publishing highly embarrassing private information that is not newsworthy or lawfully obtained from a public record.
Plaintiff's Case
- Publicizing
- Private, intimate facts
- That would be highly embarassing to a reasonable person
- And are not of legitimate concern to the public
Defenses
- First Amendment: Truthful information lawfully obtained from public records
Current Issues or Controversies
The issue of revenge porn sites. It seems ridiculous that such sites are legal, even more so that one would have to pay $250 to remove pictures or videos from the site. It immediately seems deeply inherently wrong. On an individual case by case level perhaps an IIED suit would be relevant, but as to how such sites should be condemned as a whole I am at a loss.
The issue of revenge porn sites. It seems ridiculous that such sites are legal, even more so that one would have to pay $250 to remove pictures or videos from the site. It immediately seems deeply inherently wrong. On an individual case by case level perhaps an IIED suit would be relevant, but as to how such sites should be condemned as a whole I am at a loss.
My Questions & Concerns
1. What does it mean to be technologically disturbed?
1. What does it mean to be technologically disturbed?
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