Unwitting Victims: The Third-Party Privacy Problem

Please find a new version of this paper below.

How Blogs and Online Pictures Invade Personal Privacy

Our class discussion about privacy concerns on the internet was eye-opening and has made me rethink what I post on the internet. But our class discussion and online readings primarily focused on autonomy privacy concerns with respect to consumers and individuals. I would like to explore a different privacy concern: what happens when we expressly choose not to post anything online, but a third party posts pictures or writes a blog about us? In today’s world, where hundreds of millions of people are on social networking sites, and where many people write a daily blog, can we really prevent third parties from publicizing our private lives, and if so, how?

Simply put, the amount of information available on the internet has exploded exponentially. Gossip abounds; it fills the public arena and assumes a life of its own. Photos support the rumors; blogs disperse them everywhere. As the reach of gossip expands, so can the damage. Yet if we are to preserve the First Amendment right of free speech, we cannot suppress these new forms of communication. Is there room for regulation? What’s next?

Possible Solutions

Legally, I do not think there are any solutions that would work to prevent third parties from recording my life. The most obvious option, a suit for invasion of privacy under many states’ tort law, would likely proceed on two different grounds: a person’s privacy is invaded (1) by an unreasonable intrusion into the person’s seclusion, solicitude, or private affairs; or (2) by unreasonable publicity given to the person’s private life. See Restatement (Second) of Torts: Invasion of Privacy § § 652A, 652B (1977). But an invasion of privacy suit would likely fail because either ground requires proof that the intrusion is highly offensive to a reasonable person, and potential plaintiffs will have difficulty arguing that a blog post or picture is highly offensive. See Id. §§ 652B, 652D. The Restatement specifically says that there is no liability for a defendant who takes a photograph of a person walking on a public highway, since the person is in public, available to be seen by anyone. Id. § 652B cmt. c. The blogs and pictures that are posted online document these everyday public interactions, and therefore an invasion of privacy tort suit will fail. Additionally, a claim for defamation will fail where the blogger is only representing his opinions, which are protected by the First Amendment.

So if there is no workable solution under existing law, theoretically, Congress or state legislatures could expand the invasion of privacy tort to specifically address third-party postings; the new law could require bloggers or online posters to obtain permission from those mentioned in the blog or those who appear in pictures. It is unlikely that such a statute would be passed at all, but even if it were, it would be nearly impossible to enforce because of the sheer volume of online blogs and photos.

Another idea is to use the V-Chip technology that is included in all televisions and apply it to the internet in order to address the third-party privacy problem. Indeed, Congress passed the Child Safe Viewing Act of 2007, signed into law by President George W. Bush, which directs the Federal Communications Commission (FCC) to investigate whether the V-Chip technology could be expanded to the internet context. See http://abcnews.go.com/Technology/story?id=3488856&page=1; http://news.cnet.com/8301-13578_3-10111752-38.html?part=rss&tag=feed&subj=News-PoliticsandLaw. The FCC prepared an extensive report which basically concluded that there are several content-blocking technologies available, but parents are unaware of them or unclear how to use them. Even the V-Chip itself is not widely used. FCC Report, p. 8. Moreover, the V-Chip’s focus – in the television context and even if implemented in the internet arena – is to allow parents to control what their children view (based on a ratings system), not to give people more control over what other people post about them. This technology, then, even if adopted for the internet and even if widely used, will not help solve the third-party privacy problem. Plus, many argue that content-blocking technology is a form of censorship which violates the First Amendment and is especially problematic for the internet, where innovation and freedom are supposed to be its hallmarks. See, e.g., http://abcnews.go.com/Technology/story?id=3488856&page=1.

Since there is no viable cause of action, statute, or technology that could address this problem, and since it is the nature of the internet age in which we live that people blog and post pictures, and because of the actions of third parties, it appears that there is no way to control the loss of one’s privacy even if a person chooses not to disclose private information online (especially when people continue to use the internet carelessly. See e.g., http://www.nytimes.com/2010/01/21/technology/21password.html?em). The resulting conclusion is that two options remain: ask your friends never to post anything about you; even if your friends agreed (and many may not), it would not solve the problem when strangers or acquaintances write about you or post pictures of you online. Alternatively, the best option may be to stay home all day, every day, and never interact with another human. And since that is not likely to happen, we will undoubtedly all lose a bit more of our privacy every day, and there is nothing we can do about it.

COMMENTS

Donna - As someone who has begged friends to take pictures off facebook, I found this piece very interesting. As you point out, we must be aware that every social interactive we have has the potential to be published worldwide. Although you acknowledge that legislative action would be difficult to achieve, I am curious if you have any thoughts about what an ideal statute would look like if one were to exist. I'm not sure if this is relevant, but do you think something like the new anti-paparazzi law recently passed in California, could be expanded to at least protect non-celebrity from having unwanted pictures posted online? Also, do you think the sheer number of blogs, tweets, etc., might limit the harms caused?

-- BradleyMullins - 06 Dec 2009

Donna,

This is an interesting paper, and I agree with your conclusion that privacy loss stemming from third-parties is highly-relevant and very problematic. I don't know how to address it; I think most statutes trying to would have real first amendment problems. I also balk at the idea of requiring someone to get permission to talk about others that are part of their life; if information ownership generally is a problem, how much of a greater problem is it if the class of protectable content expands to news of the day too! The only other thing that came to mind is a question I do not know the answer to: in some jurisdictions, aren't there privacy laws against widespread public disclosure of true facts that are non-newsworthy and that would offend a reasonable person? I was under the impression that in some places there were and that these laws, separate from defamation, did not include truth of the disclosed material as a defense. I don't know the status of such laws, and even if they do exist you might still make the point that you believe they are insufficient for this purpose. Just something that came to mind.

-- BrianS - 07 Dec 2009

Thanks for the comments. Bradley, I actually wanted to write about the new paparazzi law, but I ran out of room. Since I had to leave something out, I thought it best to omit the discussion on celebrities and instead focus on the average person. Celebrities are different -- some could argue that by choosing to become an actor or world-class athlete, a person accepts the possibility of fame and everything that comes with it. Plus, celebrities themselves sometimes set up the photos for the paparazzi (which the article you linked to discussed). I wanted to focus on the situation where the individual had no control over the posting at all.

To a certain extent, the sheer volume of blogs, tweets, etc. might limit the harms caused -- there is no way to know everything that is out there, and everyone is susceptible, so we shouldn't hold people accountable based on a blog entry or Facebook picture. But if a potential employer (for example) is searching for a specific person, those blogs posts or tweets that mention that person will likely pop up, so I don't think sheer volume will in fact limit the harm.

Brian, I looked into your question before posting my essay, and from what I could tell, the laws protecting a person's right to privacy only do so within the commercial context, but I may have misread my sources and will take a closer look at this later today. [See Updated Version above.]

-- DonnaAckermann - 07 Dec 2009

• It seems to me that you took the long way round here. The simple way to put it is to say that there is more information around than there used to be. Also, gossip is becoming public rather than private communication. So the gossip has become verifiable, because there are always photos taken by somebody on Flicker, and we're all acting as intelligence agents by tagging one another's photos. Not to mention that all the witnesses are blogging. There's no conceivable way that we can be for freedom of speech and also be trying to keep people from gossiping, even though all gossip is now public and permanent. That took me fewer than ninety words, which means you would then have 90% of the essay available to develop an insight about what happens next, which is supposed to be your subject .