FREE PRESS — Photos or video shot through standard lenses of scenes visible in or from public locations are still not going to be ruled actionable as an invasion of privacy, even in this era of Google Street Views, writes attorney Jonathan Bick in the New Jersey Law Journal.
Courts have found that individuals have a right to be protected from
a third party's intrusion upon their seclusion; however, this right is
not applicable when the image is captured from a public place. The mass
distribution of an image can qualify as an intrusion upon seclusion
tort and/or a public disclosure of private fact tort. However, with
respect to the matter at issue, the intrusion upon seclusion tort is
not applicable because the individual was not in a private location,
thereby excluding anyone who happened to be on public property.
Similarly, the public disclosure of private facts torts is not
applicable to the mass distribution of a image capture because the
image may have newsworthy value.
In [the California case of] Gill v. Hearst Publishing Company, 253 P.2d 441(1953), a
reporter secretly photographed a couple sitting in a park engaging in
an amorous embrace for an article in Harper's Bazaar. The
couple sued under the privacy torts, arguing that they thought they
were alone in a park. The court found that there could be no privacy in
that which is already public. Since then, when a court has balanced the
right "to be let alone" and the "the public interest in the
dissemination of news" under the First Amendment, the freedom of speech
and of the press generally prevails. Currently, privacy in public is
nonexistent under the current law regardless of technology. To
establish a privacy right in one's own image, people must keep to
themselves.
It is possible that further enhancements to Internet image access
applications will result in such a sufficient change to privacy
availability as to warrant new and additional privacy rights. For
example, while the current version of Street View is limited to
prerecorded still photographs, future technology will allow real-time
streaming video feeds and a time-stamped and location-specific database
of images. Such a database might be used in conjunction with facial
recognition, which might rise to the level of Fourth Amendment
violation because people will no longer be secure in their persons,
houses, papers and effects against unreasonable searches and seizures.
While a government-surveillance database would be limited by the
constitution, a private-sector surveillance database is limited by the
potential for tort action. For example, if an Internet image is
intentionally displayed out of context and gave rise to unfair
judgments that harmed a person's reputation, tort action is possible.
However, it should be noted that the public disclosure of private facts
tort is restrained by a very broad newsworthiness exception and the
intrusion upon seclusion tort does not apply when an invasion occurs in
public.
But Bick notes a little-known federal law criminalizing the capture of photos or video of private parts of the body exposed on beaches, boats and other zones within the "special maritime and territorial jurisdiction of the United States."
The Video Voyeurism Prevention Act of 2004 does not appear to have led to any prosecutions. Who voted for or against it? No record was kept in either house.
