In a high-profile privacy lawsuit, former pro-wrestler Hulk Hogan won a $115 million jury verdict against Gawker for posting his sex video without his consent. Hulk Hogan, whose real name is TerryBollea, brought a lawsuit for invasion of privacy and other torts. Under one of the main privacy torts — public disclosure of private facts — one can be liable if one widely and publicly discloses private information about another that would be highly offensive to a reasonable person and not of legitimate concern to the public.
All posts in First Amendment
A common argument made to justify First Amendment restrictions on privacy torts and defamation law is that legal liability will chill the media. I am generally sympathetic to these arguments, though only to a point. I think these arguments are often overblown. An interesting point of comparison is the UK, where there is a much weaker protection of free speech and much stronger defamation law. Although the UK has not embraced all of the privacy torts recognized in the United States, it has come close, recognizing a robust tort of breach of confidence. Despite the lack of a First Amendment equivalent, and the stronger legal liability for gossip and libel, the press in the UK seems anything but chilled or cowed. Consider J.K. Rowling’s recent testimony:
The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student. In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N. Kowalski invited about 100 people to join the page, and about 24 people joined.
I’ve been spending a lot of time lately focusing on privacy issues at schools. I find these issues fascinating, and I have been working on them in the trenches, as I created a company last year to provide tools and resources to schools to help them better address privacy problems and to develop a comprehensive privacy program (or enhance their existing privacy program). The company is called TeachPrivacy. If you’re a school official (K-12, higher ed), a teacher/professor, or a concerned parent, please contact me if you’re interested in my project.
I’m pleased to announce the publication of my new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011). Here’s the book jacket description:
In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr. Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.
Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books. Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout. Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment. There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.
I recently had a chance to talk with Ron about the book.
An Interview with Dawn Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age
My colleague at George Washington University Law School, Professor Dawn Nunziato, has recently published a provocative book about the First Amendment and the Internet — Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).
Her book explains that, contrary to the prevailing understanding of the Internet as a haven for free speech, our communications on the Internet today are subject to censorship and control by a host of private gatekeepers – most notably, by broadband providers. Under the prevailing negative conception of the First Amendment, these powerful private gatekeepers are not subject to the First Amendment’s mandate prohibiting censorship. Unlike real space conduits for communication – like telecommunications providers and the postal service – broadband providers are unregulated in their power to censor speech on the Internet. Dawn argues for an affirmative conception of the First Amendment, under which public and powerful private gatekeepers of Internet communications are subject to the First Amendment’s mandate to ensure the free flow of communications in the digital age.
I had a chance to ask Dawn a few questions about her new book.
Jessica Bennett at Newsweek brought my attention to a story about the family of the killer whale trainer (Dawn Brancheau) who was killed while training the whale at SeaWorld:
Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.
According to FoxNews:
The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under Florida law. . . .
Brancheau’s family said through a spokesman that public airing of the killing would only worsen their grief.They could seek a court injunction to stop the release, at least temporarily. The family has been consulting the lawyer who represented Dale Earnhardt’s widow in a court fight over his autopsy photos.
I believe that the Brancheau family has a good case. They want to prevent the sad events that happened to the family of Nikki Catsouras, whose gruesome accident death photos started appearing all over the Internet. In that case, the court held that the family could bring common law privacy claims against the police department for improperly leaking the photographs.
In an interesting and thoughtful critique of Danielle Citron’s Cyber Civil Rights, Michael Froomkin argues that Danielle’s proposal to require ISPs to maintain records of IP addresses will spell “the complete elimination of anonymity on the US portion of the Internet in order to root out hateful speech.” Anonymous speech should be strongly protected, as it is key to allowing people to express themselves candidly and openly, without fear of reprisal. It is especially important to promote dissenting views that are outside the mainstream of conventional thought. But the key issue with anonymity online is: How much do we want to protect it? Anonymous speech can lead to harmful defamation, invasion of privacy, intentional infliction of emotional distress, as well as criminal conduct, such as the spread of child porn. Is there a way to protect anonymity yet not let it get too out of hand?