New Jersey Law Journal

July 20, 2009

INTERNET DISSEMINATION OF INDIVIDUAL'S IMAGES -- THE BALANCE STRUCK BETWEEN PRIVACY AND FREE SPEECH HAS NOT CHANGED

Jonathan Bick Bick is of counsel to Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].

Internet accessibility of images amassed by governmental organizations, commercial entities and individuals are the basis of novel privacy violation claims. However, Internet distribution of images of both individuals and private places collected from public places remains lawful.

Uproar over such imagery has sprung up in a variety of situations. For example, residents in California's Humboldt and Sonoma counties claim that their privacy was violated by a governmental action that provides Internet accessibility to digital maps composed of photographs taken within each county and others believed Google's Internet publication of more than 10 million roadside images constituted a multitude of privacy-right violations. Moreover, individuals have been subject to privacy violation actions after posting images on the Internet with services like Flikr (a popular photo-sharing Web site), YouTube (a popular video-haring Web site), and even user-generated news Web sites.

Despite the fact that images of people in compromising positions have been made accessible by Internet applications, the courts have found that Internet applications such as Street View are lawful. Most recently, the United States District Court for Western Pennsylvania dismissed a lawsuit (Boring v. Google 2:08-CV-00694-ARH (2009)) which claimed that a Google application called Street View which gives Internet users a driver's perspective of hundreds of cities around the world was a reckless invasion of privacy.

Internet technology may have changed who may grant access to content but it has not changed the balance struck between privacy and free speech. Those who find applications such as Street View a privacy violation argue that the captured images of private areas were published without the consent of communities or of the photographed individuals. They complained that the Internet distribution of such private information is profoundly more intrusive than traditional technology because it allows for easier, wider, faster and more permanent content distribution than ordinary cameras and surveillance cameras.

In Boring v. Google, the court found that the tort of public disclosure of private facts is not violated by Google's Internet broadcasting of private content because such e-broadcasting possesses some social value. Similarly, such ebroadcasting is not an intrusion upon seclusion because it was accessible from a public place.

Privacy rights are generally considered to have arisen as a result of Louis Brandeis's article 'The Right to Privacy,' (4 Harv. L. Rev. 193 (1890)), which was inspired by the propagation of low-cost and easy-use cameras in the United States. The Kodak mobile photo technology enabled people to take clandestine photos and thus weaken an individual's right privacy. Since then, 'the right to be let alone' has been established in the United States.

The torts of public disclosure of private facts and intrusion upon seclusion were developed prior to the time when an individual at little cost could publish images of another to millions of people using the Internet. Arguably, just as the introduction of low-cost and easy-to-use image capture technology required new privacy rights, so too does lowcost and easy-to-use Internet image distribution technology. Without such new rights an

individual may lose his right to control how he is seen by others.

More than 100 years ago a court found that an image of an individual cannot be displayed at any time or at any place without his consent (Pasevich v. New England Life Ins. Co., 50 S.E. 68 (1905)). Subsequently, courts have found that an individual has the right to limit when to exhibit himself to the public with respect to time, places and manner. William Prosser laid the foundation for four types of privacy torts: public disclosure of private facts, intrusion upon seclusion, appropriation of name or likeness and false light. (48 Cal. L. Rev. 383 (1960)).

Courts have found that individuals have a right to be protected from a third party's intrusion upon their seclusion; however, this right is ameliorate 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 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.

Other privacy protection options are available. In the absence of any legal obligations, corporations typically take action to please their consumers. Google's initiative to develop a technology to blur out people's faces in its Street View program is an example of a firm reacting to negative publicity associated with privacy violations.

Privacy may also be protected using torts designed to protect property. For example, photographing images may be restricted by resorting to trespass laws. North Oaks, Minnesota, which is an enclosed and resident-owned community, relied on trespassing laws and as a result compelled Google to remove them from their Street View database.

The public can also ask governmental entities to apply existing privacy protection statues, such as the Video Voyeurism Prevention Act of 2004 (codified at 18 U.S.C. Section 1801 (2004)). This statute prohibits capturing an image of a person's private areas without their consent. It should be noted that while the statutes does not treat being filmed in public as an absolute bar to liability, rather the statute focuses on whether the victim possesses a reasonable expectation of privacy that can exist regardless of whether that person is in a public or private place.