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Jennifer Aniston

Jennifer Aniston is suing a paparazzi who took nude photos of her. In a complaint filed in Los Angeles Superior Court, Aniston claims that Peter Brandt took topless photographs of her from a significant distance from her home. He used a high-powered telephoto lens to photograph her at her home. Aniston’s lawyers claim the photos were taken from over a mile away, but Brandt claims that this would be “impossible . . . unless you have something from NASA.”

Jack Chin at CrimProf expresses disbelief at the case:

Nude Photos of Jennifer Aniston can’t possibly be “illegal” if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot violate a “reasonable expectation of privacy,” right? But lawyers who filed a lawsuit described on The Smoking Gun say otherwise.

This case is an example of the application of California’s Anti-Paparazzi Act. In a previous post about the Act, I observed:

The Anti-Paparazzi Act creates heightened penalties when a person commits a trespass “in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.” A person can also be liable even if there is no trespass if he “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.”

Violations of the Act carry damages up to “three times the amount of any general and special damages that are proximately caused by the violation of this section.” Punitive damages and disgorgement of any of the paparazzi’s proceeds from the sale of the photos are also available remedies. Further, the Act punishes a person who “directs, solicits, actually induces, or actually causes” a person to violate the law. §1708.8(d). The Act applies even if no image or recording is ever captured or sold. §1708.8(i).

Does Aniston have a reasonable expectation of privacy? I believe she might very well have a good case. She was at her home, and it appears as though Brandt had to be very far away in order to take the photos. Some might glibly say that if people want privacy at home, they should just shut their windows and never wander into their yards. But with today’s powerful zoom lenses, should we really have to live with our blinds constantly pulled down? Unless we protect people from the use of this kind of technology, it will interfere with their freedom upon their own property.

I believe that it is formalistic to conclude that people lack an expectation of privacy whenever it is possible for a person to be seen or heard. We can even expect privacy in public at times. When we’re in a restaurant, we might expect small snippets of our conversations to be overheard by people at tables immediately surrounding us. But this doesn’t mean, however, that we expect to have our conversation recorded from afar with a parabolic microphone. If we buy medication at a drug store, we expect that the person at the check out counter will see it, but we don’t expect the information about what we buy to be publicized to the world. For additional arguments, Helen Nissenbaum has written extensively on why people can expect privacy in public.

Brandt will probably counter with a First Amendment defense, but as I’ve explained in an earlier post, I don’t believe that the Anti-Paparazzi Act presents a First Amendment problem.

I discuss the issue of free speech vs. privacy in much greater detail in my article, The Virtues of Knowing Less: Justifying Privacy Protections Against Dislcosure, 53 Dule L.J. 957 (2003).

Originally posted at Concurring Opinions

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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 awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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