A person is in a poor position to say there was an invasion of privacy when personal information is oluntarily placed in public view. 1. In privacy discussions, a frequent question is whether a reasonable person would expect information to be confidential, expectation of privacy. ” stated as “a reasonable 2. For more than 20 years, “data mining” has been growing and media/Kroger cards have only increased this. a. The goal of a marketing strategist is to place an effective social message in front of the most likely group of “customers” at possible expense. b.
Social media is essential to this end. the least C. Pushback stemming from privacy concerns comes in the form of people not nowing they have given consent or objecting when they discover that information about them they thought was private is, in fact, public. In other words, under the circumstances, they were under the impression they had a reasonable expectation of privacy. EXAMPLE: Suppose Bob has hemorrhoids, a severe case ” and frequently Googles “hemorrhoid relief” and other, similar terms. Bob may be surprised when he gets an e-mail with a coupon for Preparation H.
He might be aghast to discover he has actually put what he has put what he considered to be personal, medical information n the Internet for a marketing company to harvest. And it could go on from there. Suppose Bob applies for a Job as an airline pilot and a background check reveals his medical condition. It’s not debilitating, but another applicant who doesn’t have hemorrhoids gets the Job. Bob would never know he was discriminated against searches he had initiated. Worse, suppose Bob does not have hemorrhoids, but is a medical student writing a paper?
Suppose he’s shopping for health insurance and is denied coverage or pays an excessive premium due to a medical condition he doesn’t even have? SALIENT POINT: When thinking about privacy, it’s also important to consider whether an alleged intrusion was by government or by private interests. Remember that the Constitution’s wording is about what government will do and won’t do. D. The sequence of cases: Griswold v. Connecticut (1965) Contraception was illegal in Connecticut. Roe v. Wade (1973) Performing an abortion was illegal in Lawrence v. Texas (2003) Homosexual acts were illegal in Texas. 1 .
Progressively, the Supreme Court expanded the “right to be left alone” absent a state interest as first envisioned by Warren and 2. Needless to say, these cases represent a sea change in Brandeis in 1890. American social and legal history. For most of America’s history, making people behave “properly’ was deemed a valid role of government. Over the past few decades, we have come to the point that unless government cant state a strong public interest to be achieved, it has to leave us alone. EXAMPLE: In the past few years, the standard response to same-sex marriage legalization has become, “It doesn’t affect me. The new public mindset is, “Who am I to Judge or tell people what is and what isn’t an appropriate relationship? ” In the ast, society had no problem with this. Too, consider whether the logical extension is whether polygamy, domestic violence or similar behaviors can/should be legalized on the same basis, TEXT NOTE: Only people have a right to privacy. Organizations – businesses, universities, nonprofits – do not. Only people. TEXT NOTE: As we discuss the four area of privacy tort law, note that each has different elements of proof and defenses. Avoid confusing them. II. The four areas of privacy law/torts A.
Appropriation of name or likeness for trade purposes AKA Commercial appropriation of a plaintiffs name or likeness. TEXT NOTE: There are two classes of plaintiffs in this tort – the nonfamous and the famous. Distinguishing them is critical to the analysis. For everyday people, damages are based on insult, emotional hurt. For celebrities, damages are based on the Implied- by circumstances People who voluntarily place information before the public can’t protest 1 . Appropriate means take without permission. a. As we have often seen, early on in legal circles, this was considered a problem. b.
Starting in Georgia in 1905, an person was awarded not $25,000 when his image was used in a newspaper ad. The d was not based on the person’s fame and did not portray him in a negative way, but he was insulted, hurt emotionally, would not have consented. c. Famous people, celebrities, are different in that their images, their fame has commercial value. Putting my name on the packaging for a football wouldn’t help sell it. Putting Eli Mannings name instead would be designed to improve sales. The property interest celebrities have in their name in likeness is called right of (1) Because a right of publicity is “property’ it can publicity. e sold or inherited Just like a ring or a car or a iece of furniture. This is why Elvis and Michael Jackson have made millions more annually since they died than when alive. (2) But for private plaintiffs complaining of commercial appropriation, because damages are based purely on emotion or stress or preference, these interests are not inheritable. If for some reason a picture of your mom ” assuming she is not a celebrity ” appears on a package of flour after damages. 2. Name or likeness her death, there is no basis to recover a. More often than not, this will be a Jury question (question of fact).
How clear was it that the defendant ntended you to be identifiable? EXAMPLE: Suppose a movie is made and there’s a real Jerk character named “Dean Mitchell. ” I feel horrified and demeaned, but if the use of the name is purely incidental then too bad for me. No damages. Incidental use. EXAMPLE: Without your knowledge or permission, your picture is taken at an 0. 0. T. stop. Next thing you know, this photo has been enlarged 12 feet tall and is used in vinyl applied to all 0. 0. T. vehicles. Strangers come up to you on campus and say, “Hey, Bus Girl” and professors call on you in class as “bus girl. You have a case for he emotional stress this causes, if any. On the other hand, if the picture is in profile or something and you recognize your image but others do not, then it’s not likely you have a basis for a lawsuit. b. In the context of celebrities due to their right of publicity, the analysis is easier. It’s usually clear celebritys image for market that a defendant has used the advantage. in Taylor and I claim that speedy service is the basis for using “Swift. ” c. Name or likeness doesn’t have to be birth certificate name or front-on photograph.