Online Dissemination of People's Images

Technology ' sometimes in itself and sometimes in particular applications of it ' often presents new problems in law, in e-commerce and other fields.

But sometimes, innovation brings benefits; other times, as the saying goes, “the more things change, the more they stay the same.” That paradoxical dictum is evident when computer and Internet technology, and e-commerce, converge.

With stasis and change in mind, consider the nearly ubiquitous issue and practice of Internet accessibility of images amassed by government organizations, commercial entities and individuals.

This accessibility of images of people and places by multiple parties is the basis of novel privacy-violation claims against individual people and e-commerce companies, publications in high numbers. But Internet distribution of images of individuals and private places collected from public locations remains lawful, even though it remains an important issue for the public at large, and for e-commerce entities in particular.

An uproar over imagery ' of people and places, of course ' distributed via the Internet has sprung up in a variety of situations. For example, residents in California's Humboldt and Sonoma counties claimed 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 that e-commerce 800-pound gorilla Google's Internet publication of more than 10 million roadside images constituted a multitude of privacy-rights violations.

Individuals also have been subject to privacy-violation actions after posting images on the Internet with services such as Flickr, YouTube and even user-generated news Web sites.

And these points and actions came despite numerous rulings that privacy has little standing in public.

(Editor's Note: For more on image and content-acquisition and distribution, see, “A Touch of Gray: Romper Room Meets Web Design,” in the July edition of e-Commerce Law & Strategy, at www.lawjournalnewsletters.com/issues/ljn_ecommerce/26_3/news/152379-1.html; “Lawful Data-Mining of Social Networks” and “e-Commerce Companies v. Hackers,” in the April edition of e-Commerce Law & Strategy, at www.lawjournalnewsletters.com/issues/ljn_ecommerce/pdfs/ecomm0409.pdf; “Look, But Don't Log In,” in the August edition of Internet Law & Strategy, at www.lawjournalnewsletters.com/issues/ljn_internetlaw/7_8/news/152451-1.html; and “Medical Providers and Social Networking Sites,” in the August edition of Medical Malpractice Law & Strategy, at www.lawjournalnewsletters.com/issues/ljn_medlaw/26_11/news/152520-1.html.)

Technology Doesn't Change Legality

Yet, 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, a Google tool that gives users a car-driver's perspective of hundreds of cities around the world, are lawful. Most recently, the United States District Court for Western Pennsylvania dismissed a lawsuit (Boring v. Google, 2:08-CV-00694-ARH (2009)), in which the claim was asserted that Street View was a reckless invasion of privacy. (See, “Boring Couple Sues Google over Street View,” in the May 2008 issue of Internet Law & Strategy at www.lawjournalnewsletters.com/issues/ljn_internetlaw/6_5/news/150450-1.html.)

Internet technology may have changed who may grant or be granted access to content, but it has not changed the balance struck, over many years and after many court decisions, between privacy and free speech. Those who find applications such as Street View a privacy violation argue that the captured images of private areas such as gated communities or enclaves as in the locations in California referred to above were published without the consent of communities or of the photographed individuals. They complain 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 or surveillance cameras can provide.

In Boring v. Google, however, 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 e-broadcasting is not an intrusion upon seclusion because it was accessible from a public place.

The Roots of Privacy Law

Privacy rights are generally considered to have arisen as a result of Samuel D. Warren and Louis D. Brandeis's article “The Right to Privacy” (4 Harv. L. Rev. 193 (1890)), which was inspired by the propagation of low-cost and easy-to-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.

Backgrounder

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 person or more than one person for millions of people using the Internet to see, or to redistribute. It could be argued that just as the introduction of low-cost and easy-to-use image-capture technology required new privacy rights, so, too, does low-cost and easy-to-use Internet image-distribution technology require new privacy rights. Without such new rights, the argument easily is made, an individual may lose his or her right to control how he or she is seen by others.

On the point of image acquisition or distribution, legal precedent exists for support of some such restrictions, but these are specific limits that themselves have limitations. For instance, 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 or her 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 or herself to the public with respect to time, place and manner.

Legal scholar William Prosser laid the foundation for four types of privacy torts:

1. Public disclosure of private facts;
2. Intrusion upon seclusion;
3. Appropriation of name or likeness; and
4. False light ( see, 48 Cal. L. Rev. 383 (1960)).

Intrusion, Seclusion and Individuals

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

With respect to the matter at issue, though, the intrusion-upon-seclusion tort is not applicable, because the individual was not in a private location, which then excludes anyone who happened to be on public property. Similarly, the public-disclosure-of-private-facts torts is not applicable to the mass distribution of an image capture because the image may be newsworthy ' a crucial First Amendment component in the allowance of image use and other information capture, acquisition and distribution, or any combination of these.

Consider, for instance, Gill v. Hearst Publishing Company , 253 P.2d 441(1953), in which a reporter secretly photographed a couple sitting in a park engaging in an amorous embrace ' the photograph to be used to illustrate an article in Harper's Bazaar magazine. 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 guarantees of freedom of speech and of the press generally prevail. Currently, privacy in public is non-existent under the law, regardless of the involvement of technology used to capture an image; indeed, to establish a right of privacy pertaining to one's own image, one must keep to himself or herself.

What May Come

It is possible that 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 most probably 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, could very well rise to the level of violation of Fourth Amendment rights, because people will no longer be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Such violations of the law may implicate various levels of government, but also individual information- or image-gatherers,

But while a government-surveillance database would be limited by the Constitution, a private-sector surveillance database would be limited only by the potential for tort action. For example, if an Internet image is intentionally displayed out of context and gives rise to unfair judgments that harmed a person's reputation, then tort action would be possible. 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 or alleged one occurs in public.

Alternative Routes

Other privacy-protection options are available. In the absence of any legal obligations, for example, 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 alleged 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, MN, an enclosed and resident-owned community, relied on trespassing laws and, as a result, compelled Google to remove images of the community from the 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. '1801 (2004)). This statute prohibits capturing an image of a person's private areas without the person's consent. It should be noted that while the statute does treat a person being filmed in public as an absolute bar to liability, the statute does focus on whether the victim possesses a reasonable expectation of privacy that can exist, regardless of whether that person is in a public or a private place.

e-Commerce counsel are well advised to introduce these nuances to their clients, many of whom offer services that allow consumers to capture, upload, manipulate and distribute photographs and other likenesses, or in cases in which the businesses and their principles may do this themselves, in public settings and in settings that riled-up plaintiffs believe were protected private ones.