by Daniel J. Solove
In a recent AP story, actress Jennifer Lawrence had some rather extensive and passionate quotes about her loss of privacy. Not too long ago, Lawrence’s nude photos were stolen and leaked on the Internet by a hacker who hacked into her iCloud account. In her comments for the AP story, she lamented how much paparazzi were harassing her: “I knew the paparazzi were going to be a reality in my life. . . . But I didn’t know that I would feel anxiety every time I open my front door, or that being chased by 10 men you don’t know, or being surrounded, feels invasive and makes me feel scared and gets my adrenaline going every day.”
She further stated: “You can say, `This (invasion of privacy) is part of my job and this is going to be a reality of my life,” but what you don’t expect is how your body and how your emotions are going to react to it.” She noted, though, that people generally don’t have much sympathy for celebrities upset about privacy invasions: “Nobody wants to help us because it seems like, you know, `Shut up, millionaires!”‘
Her goal is to change the law to “make it illegal to buy, post or shop a photo that’s been obtained illegally. . . [I]f somebody jumps my fence and takes a picture through my window of me naked, that’s illegal, but the photos can still be everywhere (online) the next day, and that makes no sense!”
Here are some of my thoughts on the matter, as well as some interesting issues worth debating:
1. Is the taking of a photo protected free speech?
Restricting the publication of photos will be quite difficult under the First Amendment, as the publication of photos is protected speech in many cases.
But is the taking of a photo protected speech? Some might argue that taking photos is useful for producing news or producing speech, but we have lots of laws that get in the way of these things. Those pesky laws that stop people from breaking into homes or hacking into computers stop the media from obtaining some juicy information about people. Journalists don’t get any kind of special immunity from general laws. “The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office.” Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).
We have federal and state laws restricting secretly recording a person’s conversation with an electronic device, and these laws do not turn on whether a person is in a public or private space. So why not a law restricting taking a person’s photo without the person’s consent?
But how do we deal with issues involving taking a picture on a busy sidewalk and capturing many other people incidentally? What if there’s a major newsworthy event and people’s photos are taken? Suppose a crime occurs and photos are taken, capturing people without consent. Suppose photos are taken during an earthquake. Should we really stop the taking of such photos? Where do we draw the lines?
2. How should the law deal with the paparazzi?
Paparazzi thrive because photos of celebrities thrive on the market and can fetch tens of thousands of dollars — sometimes hundreds of thousands of dollars or even millions.
Trespass law and the tort of intrusion upon seclusion can protect against paparazzi to a limited extent. Trespass law is limited to areas where one has a property interest, so there’s little one can do when out in public. Intrusion upon seclusion protects against invading a person’s privacy, though courts have generally held that people lack an expectation of privacy in public places. California has an Anti-Paparazzi law, but it focuses on instances when people have “a reasonable expectation of privacy,” and that brings in much of the baggage of courts reluctant to protect privacy in public.
United States law is often dismissive of finding any privacy rights in public places. In the EU, the European Court of Human Rights (ECHR) has recognized privacy in public. In Von Hannover v. Germany, ECHR, 6/24/2004, the court held that Princess Caroline of Monaco could sue magazines for publishing photos of her taken while she was in public. In Murray v. Big Pictures Ltd., [2008} EWCA Civ. 446, the England and Wales Court of Appeal concluded that the son of J.K. Rowling was entitled to privacy protection from being photographed in public. Should such an approach be tried in the US? The challenge is that it brings us back to some of the issues I asked along with the first question above.
3. Can the law restrict the selling of photos taken without consent?
Is selling a photo akin to speech or it it just the sale of a good? Newspapers and books are speech, yet they are sold too. What if one wanted to sell a non-consensual photo taken of a Congressperson caught red-handed in a crime? We would likely not want to restrict that.
Maybe we can limit the law to non-consensual photos that are not of legitimate public concern. The challenge here is that many courts have struggled to define what is of legitimate public concern. Do we look to what the public really wants? More people might be interested in paparazzi photos of Jennifer Lawrence than a photo of the President giving a speech. If we don’t look to what the public wants, then what do we look to to define what is of legitimate public concern?
We could restrict the sale of illegally-taken photos, as Jennifer Lawrence wants to do. Copyright law does this. If I take your photo, I have copyright in it, and I can stop others from selling it or publishing it. Ironically, here the media and the paparazzi are all in favor of restricting the sale of photos. The privacy rights of the person whose photo is taken are much weaker than the copyright of the photo taker. But why not strengthen them?
The sale of something illegal can be criminalized. If taking a photo is illegal, the sale of it can be criminalized too. The challenge is defining when photo-taking is illegal. That sends us back to the issues I explored above.
4. Can the law restrict the buying or publishing of photos one knows were illegally obtained?
In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court took issue with a provision in federal wiretap law that penalized the disclosure of a communication known to be obtained via an illegal wiretap. The Court held that the First Amendment provided protection when the communication was of legitimate public concern.
This reasoning would likely also apply to photos. A law criminalizing the publication of an illegally-obtained photo would need to focus on photos not of legitimate public concern. This, too, sends us back to the issues I posed above.
5. Should celebrities have a right to privacy?
Jennifer Lawrence notes the frequent scorn that celebrities are given when complaining about their lack of privacy. The argument that celebrities should have no privacy often boils down to the fact that people really enjoy celebrity gossip, that celebrities are rich and famous and thus get great benefits by being celebrities, and that celebrities somehow consented to this Faustian bargain by becoming celebrities. In other words, society gives celebrities a wonderful life and vast riches and demands as part of the price that the celebrities be placed in a fishbowl and watched by ogling eyes for society’s amusement.
But celebrities don’t really consent to losing their privacy. That gives it a false sense of legitimacy. There’s no contract that says that in order to be famous one has to surrender privacy. Why should being harassed or gossiped about be considered a legitimate job requirement? The fact that some celebrities make a lot of money does not legitimize it either.
Some argue that we learn from celebrity gossip — it presents us with a way to discuss issues such as addiction, dating, marriage, health, etc. But we don’t need celebrities to talk about these things. Why do we want to know about the personal lives of the people who read lines and make facial expressions on film? We don’t ask about the personal lives of pilots or doctors, yet knowing about their personal lives might be helpful in deciding if we want to board a plane or undergo a surgery.
I think that the main reason for celebrity gossip is not any of these rationalizations. Gossip about celebrities is fun and enjoyable. People crave it like candy. Yes, it causes celebrities harm, but people love the gossip. People love the photos that paparazzi take.
But just because people hunger for something doesn’t make it good or right. A key to being a civilized society is that people aren’t free to enjoy whatever they want when it can cause harm to others. That’s why we don’t have gladiator battles to the death even though they would certainly get good ratings.
I am not arguing that nothing about celebrities is worth discussing — there are plenty of issues involving celebrities that are. But the day-to-day life of Jennifer Lawrence isn’t one of them. She, like everyone else, should be able to live her life without being harassed. True, many in society will lose the candy they crave, but so be it. Personal enjoyment or amusement is not a justification for harming other people.
The challenge, though, is defining when it is improper to take certain photographs. That depends upon the difficult issue of when the law should protect privacy in public places. We need to think deeply about this issue and come to a better approach than the simplistic one the law often has. I believe that there are ways to draw sensible lines and protect privacy in public, but the task will not be easy.
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of training on privacy and security topics. This post was originally posted on his blog at LinkedIn, where Solove is an “LinkedIn Influencer.” His blog has more than 860,000 followers.
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