Abstract
The distinction between private vis à vis public is central to human society. Not surprisingly, the application of such a binary framework to the complexity of life presents conceptual challenges concerning the private sphere and the right to privacy. From a legal perspective, these challenges are complicated by the distinction between public law involving the state and private law governing areas like property, contract, and tort. Partly as a result of these problems, there are fundamental disagreements concerning the nature and value of privacy. These disagreements complicate the development and application of a “right to privacy” in the context of rapidly evolving digital technology.
This paper addresses these problems in six parts. Section 1 addresses issues concerning the nature and value of privacy and argues: (1) human behavioral patterns indicate that maintaining the privacy of certain types of information is important, (2) the protection of such private information is an essential component of the liberal concept of autonomous personhood, and (3) balancing conflicts between privacy and other values should be done within a fair, reliable process that is able to address the contextual complexity involved. Section 2 discusses the impact of digital technology for surveillance and disclosure of private information. Section 3 addresses legal protections of privacy and argues that, because of the threat to autonomy from improper use of private social actions like shunning, censure, and ridicule, a robust scheme of privacy torts is necessary to provide adequate protection of a private sphere. Section 4 discusses the role of tort law in protecting privacy and develops a conceptual framework for the application of doctrine. Section 5 addresses several doctrinal issues raised by the new digital technologies. Section 6 concludes by arguing that courts have an important responsibility in the shaping of norms about privacy in the context of ubiquitous surveillance and disclosure.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See infra note 2 and accompanying text.
- 2.
See, e.g., Ind. Code §§ 35-45-4-1(d) (defining “nudity” to include bare female breasts), 35-45-4-1.5 (prohibiting “public nudity”); McGuire v. State (489 So. 2d 729, Fla. 1986), (upholding conviction for topless exposure on public beach); O’Neill (2008), (noting that “topless sunbathing is . . . not technically legal” and that authorities “basically look the other way”).
- 3.
Havel refers to a retreat to “trenches of deep privacy.” See also George Orwell’s Nineteen Eighty-Four, where Winston seeks space “outside the range of the telescreen” (1949, 7).
- 4.
- 5.
See, for example, National Ass’n for the Advancement of Colored People v. Alabama (357 U.S. 449, 1958). The case was significant because it barred the disclosure of personal data about members because of the inhibiting effect that such disclosure had on freedom of association.
- 6.
See text accompanying supra note 5.
- 7.
See, e.g., United States v. Graham (824 F.3d 421, 4th Cir., 2016), (holding that government did not violate Fourth Amendment by obtaining, without warrant, cell site location data from cell phone provider).
- 8.
See infra note 37 and accompanying text.
- 9.
- 10.
E.g., Video Privacy Protection Act of 1988, 18 U.S.C. § 2710 (prohibiting “disclosure of personally identifiable records of rental, sale or delivery of prerecorded video cassette tapes or similar audio-visual materials”); Federal Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232(g). For a discussion of libraries’ duties concerning users’ privacy, see Sect. 5.1.
- 11.
See Sect. 4.2 for a discussion of an Australian case imposing equitable duty of confidentiality of nude and sexually explicit photographs and videos voluntarily sent to person who published them.
- 12.
See, e.g., S.C. Code Ann. § 16-17-470(A) (It is unlawful for a person to be an eavesdropper or a peeping tom on or about the premises of another or to go upon the premises of another for the purpose of becoming an eavesdropper or a peeping tom. The term “peeping tom,” as used in this section, is defined as a person who peeps through windows, doors, or other like places, on or about the premises of another, for the purpose of spying upon or invading the privacy of the persons spied upon and any other conduct of a similar nature, that tends to invade the privacy of others. The term “peeping tom” also includes any person who employs the use of video or audio equipment for the purposes set forth in this section.” (emphasis added)).
- 13.
See, e.g., S.C. Code Ann. §§ 16-11-600, -610, -625, -630, -640.
- 14.
See, e.g., Blevins v. Sorrell (589 N.E.2d 438, Ohio Ct. App. 1990), (finding that surveillance constituted nuisance but not intrusion).
- 15.
See, e.g., Sherman v. Field Clinic (392 N.E.2d 154, Ill. App. Ct. 1979), (intentional infliction of emotional distress claim and statutory claim recognized for harassing phone calls and other abusive conduct that interferes with seclusion). The “privacy tort” of intrusion also protects the right to be free from harassment in a private sphere. See American Law Institute (1977, § 652B illus. 5, 8). The information aspect of section 652B is addressed in Sect. 3.2.
- 16.
The Restatements provide a neutral authoritative summary of basic doctrinal areas in American law. They are prepared by the American Law Institute (ALI). The website for the ALI describes its work as follows:
The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. The Institute (made up of 4000 lawyers, judges, and law professors of the highest qualifications) drafts, discusses, revises, and publishes Restatements of the Law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education.
- 17.
See, e.g., Zacchini v. Scripps-Howard Broad. Co. (433 U.S. 562, 573, 1977), (referring to claim as protecting a “proprietary interest”); Winter v. DC Comics (69 P.3d 473, Cal. 2003), (protection of right to images of “The Three Stooges”); (ALI 1977, § 652A cmt. 6).
- 18.
See, e.g., Elm Med. Lab., Inc. v. RKO Gen., Inc. (532 N.E.2d 675, 681, Mass. 1989); Lake v. Wal-Mart Stores (582 N.W.2d 231, Minn., 1998); Renwick v. News & Observer Publ’g Co. (312 S.E.2d 405, 411, N.C. 1984); Brown v. Pearson (483 S.E.2d 477, 484, S.C. Ct. App. 1997).
- 19.
See, e.g., Time, Inc. v. Hill (385 U.S. 374, 1967), (claim for “false light” brought pursuant to New York statute designed to protect use of “the name, portrait, or picture of any living person” without consent); (ALI 1977, § 652E illus. 3, 4, 5).
- 20.
- 21.
Legitimacy of public concern is addressed in Sect. 5.3 above.
- 22.
See Katz v. United States (389 U.S. 347, 360, 1967, Harlan, J., concurring), (referring to whether “a person has a constitutionally protected reasonable expectation of privacy”). In California v. Ciraolo (476 U.S. 207, 210, 1986), Justice Harlan notes: “Katz posits a two-part inquiry: First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?”
- 23.
For an example of a court using search and seizure cases to determine that a plaintiff did not have an intrusion claim, see Danai v. Canal Square Assocs. (862 A.2d 395, D.C. Ct. App. 2004).
- 24.
See, e.g., Hernandez v. Hillsides, Inc. (211 P.3d 1063, 1074-1082, Cal. 2009); Polay v. McMahon (10 N.E.3d 1122, 1126-1128, Mass. 2014).
- 25.
Compare, e.g., Pinkerton Nat’l Detective Agency v. Stevens (132 S.E.2d 119, Ga. App. Ct. 1963), (Claim stated a cause of action for intrusion.), with, e.g., I.C.U. Investigations v. Jones (780 So. 2d 685, Ala. 2000), (Plaintiff did not have a claim because he must have expected reasonable inquiry and investigation.); Saldana v. Kelsey-Hayes Co. (443 N.W.2d 382, Mich. Ct. App. 1989), (same). For a more general discussion of the role of investigation, see Elder (2002, § 2.22).
- 26.
- 27.
See, e.g., Dietemann v. Time, Inc. (449 F.2d 245, 9th Cir. 1971); ALI (1979, § 892B), (addressing “substantial mistakes” concerning consent).
- 28.
“Consent to enter may be limited by time or space and may be terminated by the land possessor.”
- 29.
See, e.g., Desnick v. Am. Broad. Cos., Inc. (44 F.3d 1345, 7th Cir. 1995); ALI (1979, § 892B).
- 30.
Compare, e.g., United States v. Houston (813 F.3d 282, 6th Cir. 2016), (warrantless continuous video from telephone pole near defendant’s home not a search), with Egan v. Schmock (93 F. Supp. 2d 1090, N.D. Cal. 2000), (claim for stalking and filming plaintiffs in their home), and Polay v. McMahon (10 N.E.3d 1122, Mass. 2014), (claim for continuous video surveillance of plaintiff’s home).
- 31.
This case involved delivery of private mail in an office setting.
- 32.
See Polay where the plaintiff had stated a claim for privacy but not intentional emotional distress because of lack of showing of severe emotional distress.
- 33.
See Sanders v. Am. Broad. Co. (978 P.2d 67, Cal. 1999), (allowing claim for video and audio recording of conversation that could have been overheard). Similar distinctions are made in assessing scope of consent. See supra note 27 and accompanying text.
- 34.
The survey indicated general acceptance of video recording in public places because of utility in law enforcement but “discomfort/unease with audio recording.”
- 35.
See, e.g., Pennington v. Justiss-Mears Oil Co. (123 So. 2d 625, 632, La. Ct. App. 1960, amended on other issue, 134 So. 2d 53, La. 1961), (defining custom as “fairly well defined and regular usage”).
- 36.
“In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them” (ALI 1965, § 295A).
- 37.
See, e.g., Matherson v. Marchello (473 N.Y.S.2d 998, App. Div. 1984), (radio); Wilhoit v. WCSC Inc. (358 S.E.2d 397, S.C. Ct. App. 1987), (television).
- 38.
See supra notes 10–11 and accompanying text.
- 39.
See Tunkl v. Regents of the Univ. of Cal. (383 P.2d 441, 445, Cal. 1963), (allegedly negligent hospital care); Hanks v. Powder Ridge Rest. Corp. (885 A.2d 734, Conn. 2005), (negligence in design and operation of snow tube at ski resort). One state has held all such agreements to be unenforceable: Hiett v. Lake Barcroft Cmty. Ass’n, Inc. (418 S.E.2d 894, Va. 1992). There is considerable debate about the role of contractual doctrine to address the use of websites (Symposium 2016).
- 40.
See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton (536 U.S. 150, 2002), (First Amendment right to engage in advocacy anonymously).
- 41.
See, e.g., Kemp v. Block (607 F. Supp. 1262, D. Nev. 1985); McLain v. Boise Cascade Corp. (533 P.2d 343, Or. 1975).
- 42.
See supra notes 34–35 and accompanying text.
- 43.
See, e.g., United States v. Jones (565 U.S. 400, 2012), (use of global-positioning-system tracking device to monitor vehicle’s movements as a search).
- 44.
See supra notes 34–35 and accompanying text. United States v. Giraudo (2016 WL 4073243, N.D. Cal. Aug. 1, 2016) held that a search was involved where the government used a hidden system with a video camera and microphones in a surveillance program that collected more than 200 h of audio recording over 9 months, capturing the conversations of anyone who entered or exited the entrance of the courthouse, regardless of whether that person was a defendant, a county employee, an attorney, a judge, or a member of the public. Another federal district judge held that a search was not involved where a similar program was used (United States v. Marr, 2016 WL 3951657, N.D. Cal. July 22, 2016; United States v. Florida, 2016 WL 3999593, N.D. Cal. July 26, 2016).
- 45.
The other claims were intrusion, appropriation (right of publicity), intentional infliction of emotional distress, and negligent infliction of emotional distress.
- 46.
- 47.
See, e.g., Haynes v. Alfred A. Knopf, Inc. (8 F.3d 1222, 7th Cir. 1993), (holding that there was a legitimate public interest where private matters of a private person were used as an individual case history to illustrate an important historical event).
- 48.
See, e.g., N.C. Gen. Stat. § 14-190.5A (prohibiting unconsented publication of photographs or videos of persons in a state of nudity or engaging in sex if, among other things, the intent is to harass intimidate or demean).
References
Adler M (2000) Expressive theories of law: a skeptical overview. Univ Pa Law Rev 148(5):1363–1501
Allen A (2011) Unpopular privacy: what must we hide? Oxford University Press, New York
American Law Institute (ALI) (1939) Restatement (first) of torts. American Law Institute Publishers, St. Paul
American Law Institute (ALI) (1965) Restatement (second) of torts. American Law Institute Publishers, St. Paul
American Law Institute (ALI) (1977) Restatement (second) of torts. American Law Institute Publishers, St. Paul
American Law Institute (ALI) (1979) Restatement (second) of torts. American Law Institute Publishers, St. Paul
American Law Institute (ALI) (2012) Restatement (third) of torts, vol 2. American Law Institute Publishers, St. Paul
American Library Association. An interpretation of the library bill of rights. http://www.ala.org/advocacy/intfreedom/librarybill/interpretations. Accessed 8 Sept 2017
Antani R (2015) The resistance of memory: could the European Union’s right to be forgotten exist in the United States? Berkeley Technol Law J 30(4):1173–1210
Benn SI (1984) Privacy, freedom, and respect for persons. In: Schoeman FD (ed) Philosophical dimensions of privacy: an anthology. Cambridge University Press, Cambridge, pp 223–244
Bloustein EJ (1964) Privacy as an aspect of human dignity: an answer to Dean Prosser. N Y Univ Law Rev 39:962–1007
Burtt EA (ed) (1939) The English philosophers from Bacon to Mill. The Modern Library, New York
Cash JM (2016) Droning on and on: a tort approach to regulating hobbyist drones. Univ Memphis Law Rev 46:695–732
Cooter R (1997) Normative failure theory of law. Cornell Law Rev 82(5):947–979
Crocker TP (2014) Ubiquitous privacy. Oklahoma Law Rev 66:791–829
Dworkin R (1996) Politics, death, and nature. Health Matrix 6(2):201–218
Elder DA (2002) Privacy torts. Thomas West, Eagan
Eltis K (2008) Can the reasonable person still be “highly offended”? an invitation to consider the civil law tradition’s personality rights-based approach to tort privacy. Univ Ottawa Law Technol J 5:199–220
Ember S (2016) Gawker and Hulk Hogan reach $31 million settlement. New York Times. The New York Times Company, New York
Floridi L (2014) The fourth revolution: how the infosphere is reshaping human reality. Oxford University Press, Oxford
Fox M (2013) Alan F. Westin, who transformed privacy debate before the web era, dies at 83. New York Times. The New York Times Company, New York
Fried C (1970) An anatomy of values. Harvard University Press, Cambridge
Gajda A (2016) The trouble with dignity. In: Kenyon AT (ed) Comparative defamation and privacy law. Cambridge University Press, Cambridge, pp 246–264
Goffman E (1961) Asylums: essays on the social situations of mental patients and other inmates. Anchor Books, New York
Havel V (1991) Disturbing the peace: a conversation with Karel Hvízdala (trans: Wilson P). Vintage Books, New York
Heumann M, Cassak L, Kang E, Twitchell T (2016) Privacy and surveillance: public attitudes on cameras on the street, in the home, and in the workplace. Rutgers Law J Public Policy 14(1):37–83
Hubbard FP (2014) “Sophisticated robots”: balancing liability, regulation, and innovation. Fla Law Rev 66(5):1803–1872
Hubbard FP, Kahn DM (2002) Criminal trespass. In: Dressler J (ed) Encyclopedia of crime and justice, 2nd edn. Macmillan Publishers, New York
Hughes K, Richards NM (2016) The Atlantic divide on privacy and free Speech. In: Kenyon AT (ed) Comparative defamation and privacy law. Cambridge University Press, Cambridge, pp 164–198
Kornhaber S (2016) Hulk Hogan vs. Gawker: the public arena. The Atlantic. The Atlantic, Washington
Krotoszynski RJ Jr (2015) Reconciling privacy and speech in the era of big data: a comparative analysis. William Mary Law Rev 56(4):1279–1338
Lessig L (1995) The regulation of social meaning. Univ Chic Law Rev 62:943–1045
Lindsay D (2016) The “right to be forgotten” by search engines under data privacy law: a legal and policy analysis of the Costeja decision. In: Kenyon AT (ed) Comparative defamation and privacy law. Cambridge University Press, Cambridge, pp 199–223
Madigan N (2016) Jury tacks on $25 million to Gawkers bill in Hulk Hogan case. New York Times. The New York Times Company, New York
McAdams RH (1997) The origin, development, and regulation of norms. Mich Law Rev 96:338–433
Mirandola GPD (1486) Oration on the dignity of man. English edition: Mirandola GPD (1956) Oration on the dignity of man (trans: Caponigri R). Henry Regnery Company, Chicago
Nissenbaum H (2010) Privacy in context: technology, policy, and the integrity of social life. Stanford University Press, Stanford
O’Neill N (2008) Topless protestors on south beach. Miami New Times.
Orwell G (1949) Nineteen eighty-four. Harcourt Inc., San Diego. Reprinted edition: Orwell G (1961) 1984. New American Library, New York
Parker RB (1974) A definition of privacy. Rutgers Law Rev 27(2):275–296
Posner RA (1984) An economic theory of privacy. In: Schoeman FD (ed) Philosophical dimensions of privacy: an anthology. Cambridge University Press, Cambridge, pp 333–345
Posner E (2000) Law and social norms. Harvard University Press, Cambridge
Rawls J (1999) A theory of justice, revised edn. Harvard University Press, Cambridge
Reiman JH (1984) Privacy, intimacy, and personhood. In: Schoeman FD (ed) Philosophical dimensions of privacy: an anthology. Cambridge University Press, Cambridge, pp 300–316
Richards N (2015) Intellectual privacy: rethinking civil liberties in the digital age. Oxford University Press, New York
Richards NM, Solove DJ (2007) Privacy’s other path: recovering the law of confidentiality. George Wash Law J 96:123–182
Sandel MJ (1982) Liberalism and the limits of justice. Cambridge University Press, New York
Savan L (2016) Does Hulk Hogan’s lawsuit against Gawker really threaten freedom of the press? The Nation
Schoeman FD (ed) (1984) Philosophical dimensions of privacy: an anthology. Cambridge University Press, Cambridge
Schoeman FD (1992) Privacy and social freedom. Cambridge University Press, New York
Solove DJ (2004) The digital person: technology and privacy in the information age. NYU Press, New York
Sunstein CR (1996a) The expressive function of law. Univ Pa Law Rev 144(5):2021–2054
Sunstein CR (1996b) Social norms and social roles. Columbia Law Rev 96(4):903–968
Symposium (2016) Contracting over privacy. J Leg Stud 45:51
Taylor C (1995) Philosophical arguments. Harvard University Press, Cambridge
Thomson JJ (1984) The right to privacy. In: Schoeman FD (ed) Philosophical dimensions of privacy: an anthology. Cambridge University Press, Cambridge, pp 272–289
Wacks R (2015) Privacy: a very short introduction. Oxford University Press, Oxford
Walzer M (1983) Spheres of justice: a defense of pluralism and equality. Basic Books, New York
Westin AF (1967) Privacy and freedom. Ig Publishing, New York
Westin AF (1972) Databanks in a free society: computers, record keeping and privacy. Times Books, New York
Whitman JQ (2004) The two western cultures of privacy: dignity versus liberty. Yale Law J 113(6):1151–1221
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Hubbard, P. (2018). The Need for Privacy Torts in an Era of Ubiquitous Disclosure and Surveillance. In: Cudd, A., Navin, M. (eds) Core Concepts and Contemporary Issues in Privacy. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-74639-5_10
Download citation
DOI: https://doi.org/10.1007/978-3-319-74639-5_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-74638-8
Online ISBN: 978-3-319-74639-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)