Unwitting Victims: The Third-Party Privacy Problem

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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 two kinds of autonomy privacy concerns: those of a consumer, in terms of what companies can do with our information; and those of an individual, in terms of what information we choose to put on the web, even when we do not realize the consequences of what we disclose online. While those two issues of privacy are important, 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, such as Facebook, and where many people write a daily blog, can we prevent third parties from publicizing our private lives, and if so, how?

There is a notion in today’s world that everything is worthy of reporting; no action is too trivial or too mundane to be publicized. Twitter, AIM, G-chat, and Facebook statuses convey that attitude, as it is not uncommon for a person’s status to read, “in class,” “eating,” or “I’m sleepy.” It is no longer special events that are broadcast to the world but daily life that merits mention; blogs capture this recent trend by documenting a person’s everyday life and interactions. The problem is not that people choose to post an online status or write a blog about their own lives (which is a separate privacy issue), but that because I had some interaction with the blogger, I become part of the blogger’s daily life, and our interaction is recorded, discussed, and analyzed for everyone to read. I therefore lose my privacy, even though I posted nothing online and in no way publicized our interaction.

Sometimes people might not care that their interaction is online because they reason that they are not doing anything wrong, but even in those situations, people are losing their privacy, one blog entry at a time. And what about those times when people really do care if something is posted online about them because they are trying to keep their actions a secret? For example, it is not hard to imagine a situation in which a couple is having an affair and runs into an acquaintance who does not realize the circumstances, who then exposes the affair when he writes about his interaction with the couple. Whether someone should be having an affair or not, people should be allowed to determine their own lives and not have their secrets revealed by a third party.

And sometimes, it’s not a secret that people are trying to preserve, but their dignity. For example, people who post pictures of a coworker drunk at the annual holiday office party prevent the coworker from keeping his bad judgment from going public. There is no way to keep those pictures from appearing in public, even though he did not put them online. Facebook allows people to “untag” themselves in photos, which is slightly helpful, but the picture is still on the web and easy enough to find, even if it is not associated with your profile. In the past, when a person acted stupidly in a public space, the damage was limited to whoever was in the room; now the person’s actions are publicized for everyone to see and subject to public scrutiny. And the problem is that individuals have no control over that; nothing they do can control what others post about them.

Possible Solutions

Legally, I do not think there are any solutions that would work to prevent third parties from recording my life. I cannot think of any grounds for a lawsuit that would prevent these public postings. A claim for defamation would fail where the blogger is only representing his opinions, which are protected by the First Amendment. Moreover, when I’m in public, I no longer have an expectation of privacy, and in today’s world, when I’m in my private home and invite people over, I arguably no longer have an expectation of privacy there either.

So if there is no solution under existing law, theoretically, Congress or state legislatures could change the law by passing a statute that addressed this specific aspect of privacy. For example, the statute could require a blogger or online poster to obtain permission from those mentioned in the blog or those who appear in pictures. But that statute would be nearly impossible to enforce because of the sheer volume of online blogs and photos. And it is unlikely that such a statute would be passed in the first place, when more pressing privacy concerns exist (such as how businesses sell consumers’ data to other companies).

Since there is no viable cause of action or statute 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 be on Facebook or to give out private information online. The resulting conclusion is that two options remain: ask your friends never to post anything about you, which 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 going to happen, it becomes undoubtedly clear that we all lose a bit more of our privacy every day, and there is nothing we can do about it.

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.

-- DonnaAckermann - 07 Dec 2009