Unwitting Victims: The Third-Party Privacy Problem

After revising my paper based on the posted comments, a new version of this paper is now ready for review.

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” or “eating.” It is no longer a special event but daily life that merit mention; blogs capture this recent trend by documenting a person’s everyday 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 lose 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, a couple who is having an affair bumps into an acquaintance; he then writes about his interaction with the couple, thereby exposing the affair. Moral issues aside, 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. 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. 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.(1) 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.(2) 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.(3) 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.

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 disclose 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, we will undoubtedly 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. [See Updated Version above.]

-- DonnaAckermann - 07 Dec 2009

Notes

1 : See Restatement (Second) of Torts: Invasion of Privacy § § 652A, 652B (1977).

2 : See Id. §§ 652B, 652D.

3 : Id. § 652B cmt. c.