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.
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