Invasion of Privacy Laws in Today’s Society
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Invasion of Privacy Laws in Today’s Society
The prohibition of the invasion of one’s privacy derives from the right to be left alone (Bedingfield, 1992). Arguably, the right to be protected from the invasion of one’s privacy is traced to an article by Samuel Warren and Louis Brandies, whom defined privacy as constituting ‘the right to be left alone’ (Bratman, 2001). In essence, invasion of privacy laws seeks to exclude one’s personal matters from the public platform. Protection of privacy rights in the form of tort has over the years developed from the common law which sought to enhance the realization of human dignity. Suffice to say, thought the US Constitution does not make express mention of the right to privacy, it however has guarantees that have been interpreted to protect one from unlawful and unjustified invasion into their private affairs of no public concern.
The legal basis of enjoyment of privacy rights in the United States is deduced from various constitutional amendments wherein the government’s intrusion into one’s private affairs is limited. Under the Fourth Amendment to the US Constitution, every person is entitled inter alia entitled to the right to security of their persons, houses, papers and effects, against unreasonable searches and seizures (Tomkovicz, 1984). The implication of this entitlement is that there has to be obtained search warrants prior to the invasion one’s privacy by the government in the form of searches or seizures.
The Fourteenth Amendment has also been interpreted as entitling individuals to due process right to privacy. Thus, in the case of Roe v Wade, the provision was invoked to conserve the right to privacy in respect of a woman’s right of abortion. Besides, the First Amendment has also been interpreted as encompassing broader privacy rights. Various statutes have also been enacted in the US which guarantees the right to privacy. For instance, the Federal Privacy Act of 1974 prohibits agencies of the federal government from otherwise disclosing one’s personal information through the use of their names.
Since the recognition of invasion of privacy rights, the right has been categorized into four classes of torts. Intrusion of solitude and seclusion as a category of invasion seeks to protect one from the intrusion into their private affairs (Palyan, 2008). In this regard, offenders are restrained from intentionally physically, electronically or through other forms from intruding into the private space of another in the disguise of examination, investigation or observation (Palyan, 2008). The second category is public disclosure of private facts which prohibits one from disclosing another’s private information of no public interest the converse of which would be offensive.
The third category of ‘invasion of privacy’ is the appropriation of names or likeness. This element seeks to protect one from having their names, images or associated features from being misrepresented by another (Buchanan, 1988). The rationale behind this protection is that a person enjoys the exclusive rights to use their names and images and prevent others from exploiting it. Noteworthy, protection from misappropriation of another’s name is one of the traditional forms of infringing one’s privacy rights.
The case of Carson v. Here’s Johnny Portable Toilets, Inc (6th Cir. 1983) is an illustration of invasion of privacy in the form of appropriation of names. In this case, the defendant had used the slogan ‘Here’s Johnny’ for purpose of branding portable toilets without seeking Johnny’s consent. The Court found the defendant’s conduct unlawful as it infringed Johnny’s privacy rights. Recently, in 2014, the Court in the case of Timed Out, LLC v. Youabian, Inc. upheld that misappropriation of names or likeness breached the plaintiff’s privacy rights.
The fourth category of invasion of privacy is false light. False light generally implies the tort of defamation which seeks to prohibit other persons from infringing into a non-public person’s entitlement to privacy from publicity. This aspect of protection of an individual’s privacy is aimed at conserving their reputation and emotional well being. In claims of infringement of privacy under this element, the inquiries to make are; whether the publication on the defendant are maliciously made; whether such publication places the claimant in a false light; and whether it is offensive or reasonably results in annoyance.
Many claims on the infringement of privacy rights on the basis of false right have been determined by US Courts. The case of Warren E Spahn v. Julian Messner, Inc is quite informative in this aspect. The defendant has published a biography of the plaintiff, which falsely made lies about him. Upon lodging a claim for injunction, it was held (following appeal) that indeed such publication constituted false light, hence impaired the plaintiff’s privacy right.
While various cases have been decided in the affirmative that uphold the privacy rights of individuals in the US, the right is yet to be enjoyed fully. In this regard, it is observable that the existing invasion of privacy laws and their subsequent interpretation does not offer adequate protection of privacy rights. As pointed out above, the US Constitution does not have express nor explicit mention of the right to privacy. The upshot of this is that limited interpretation has been accorded to the seemingly relevant provisions of the Constitution.
Moreover, the aspect of enjoyment of one’s privacy has been subject to various evolutions since its recognition within the US (Zarsky, 2003). This has been against the backdrop that with the seemingly unending technological advancements, issues of privacy have become much vexed (Zarsky, 2003). The media is rapidly growing and people’s privacy is easily infringed, both intentionally and unconsciously. In most cases, various communication and internet sites obtains individuals’ private information without their consent and proceeds on disclosing the information (Chai et al., 2009).
Besides, it should be appreciated that there has been much drift in information privacy since Warren and Brandies coined the right to be left alone (Mai, 2016). Thus, while previous privacy models limited it to physical privacy, technological advancements has significantly disrupted this model. Even without an individual disclosing their personal information, the computer technology has made it much easier to spy on individuals’ information and proceed upon analyzing it altogether (Mai, 2016).
Illustratively, viable consumer privacy protection laws should be devised to fill all the gaps in invasion of privacy (Brill & Jones, 2016). While the issue of informed consent while browsing seemed quite vital in previous decades, it has in the recent times proved to be quite elusive. It is logically unrealistic to expect consumers to read through the lines of privacy policies prior to using the browsing sites. In most cases, cookies retain users’ personal data without seeking their approval (Dabrowski et al, 2019).
The implication of the above is that privacy laws, such as the consumer privacy laws should measure up with the emerging technological issues that pose threat to the protection of users’ privacy (Cofone & Robertson, 2017). Important to reckon, on March 28, 2017, the Congress declined to approve the Obama administration privacy protection rules. The rules sought to protect consumer data privacy while using the internet which made it a prerequisite that explicit consent must be obtained to access or exploit users’ personal data (Cofone & Robertson, 2017).
References
Bedingfield, D. (1992). Privacy or Publicity? The enduring confusion surrounding the American tort of invasion of privacy. The Modern Law Review, 55(1), 111-118.
Bratman, B. (2001). Brandeis and Warren’s The Right to Privacy and the Birth of the Right to Privacy. Tenn. L. Rev., 69, 623.
Brill, H., & Jones, S. (2016). Little things and big challenges: information privacy and the internet of things. Am. UL Rev., 66, 1183.
Buchanan, C. L. (1988). A Comparative Analysis of Name and Likeness Rights in the United States and England. Golden Gate UL Rev., 18, 301.
Chai, S., Bagchi-Sen, S., Morrell, C., Rao, H. R., & Upadhyaya, S. J. (2009). Internet and online information privacy: An exploratory study of preteens and early teens. IEEE Transactions on Professional Communication, 52(2), 167-182.
Cofone, I. N., & Robertson, A. Z. (2017). Consumer Privacy in a Behavioral World. Hastings LJ, 69, 1471.
Mai, J. E. (2016). Big data privacy: The datafication of personal information. The Information Society, 32(3), 192-199.
Palyan, T. (2008). Common Law Privacy in a Not So Common World: Prospects for the Tort of Intrusion Upon Seclusion in Virtual Worlds. Sw. L. Rev., 38, 167.
Tomkovicz, J. J. (1984). Beyond Secrecy for Secrecy’s Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province. Hastings LJ, 36, 645.
Zarsky, T. Z. (2003). Thinking outside the box: considering transparency, anonymity, and pseudonymity as overall solutions to the problems in information privacy in the internet society. U. Miami L. Rev., 58, 991.