In an age of ubiquitous camera phones and Orwellian surveillance equipment — where media is dominated by real-time newscasts and hidden video streams — invasion of privacy is an urgent and growing concern. While federal and state constitutional law provides us with various protections against the invasion of our privacy interests by government and those acting under the authority of law, there are other laws that protecting against invasions of privacy by non-governmental actors, including businesses. It is these rights against invasions of privacy by non-governmental actors which are the focus of this column.
Pennsylvania common law allows four separate civil actions for torts falling under the umbrella of invasion of privacy. These civil actions are: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life, and (4) publicity placing a person in a false light. An individual who succeeds in proving any of these claims may be entitled to an award of compensatory damages, and if the misconduct is willful and outrageous, punitive damages as well.
An actionable intrusion upon seclusion consists of an intentional interference, physical or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, but only if the intrusion is substantial and of a kind that would be highly offensive to the ordinary, reasonable person. Here the law does not provide special protections for those of delicate sensibilities. In order to be actionable, the conduct must be of a sort that would tend to cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Thus while a photographer could perhaps be held to account for intrusive telephoto shots of private activity (think Jackie O and Sarah Ferguson), a door-to-door salesman or debt collector who knocks on a person’s door on two or three occasions would not be found liable. The answer might be different, though, if the contacts proceeded on a daily basis for weeks or months.
One may also be liable for the appropriation of another’s name or likeness. In order to establish liability, the plaintiff must prove that the defendant used the plaintiff’s image or name for the defendant’s profit or other benefit, without authorization to do so. As a general rule, the protection does not extend to images of one’s property or belongings. Thus, there is typically no right to recover damages for another’s unauthorized publication of photos of one’s house or front lawn.
In order to make out a claim for publicity given to private life, a plaintiff must establish (1) that a private fact was publicized, (2) the fact was of a type highly offensive to an ordinary person, and not merely to a person of heightened sensibilities, and (3) the fact was not of legitimate concern to the public. A claim for publicity given to private life must be distinguished from a claim for defamation (libel and slander). Defamation is actionable because the statement about the plaintiff is false. Publicity given to private life is actionable because it is true, while also being nobody else’s business. In a claim for publicity given to private life, the issues are whether the revealed fact is of a type that could cause shame or humiliation and, if so, whether the public has a right to know. Thus the Pennsylvania Superior Court has held that while the revelation that a candidate for judicial office was investigated for child sexual abuse would tend to cause him shame and humiliation, the fact was also relevant and newsworthy. The public has a right to know whether one who seeks to judge the conduct of others was himself in conformity with the law.
In order to prevail on a claim for publicity placing one in a false light, the plaintiff must establish either the publication of a highly offensive false statement with knowledge or reckless disregard of its falsity or the discriminate publication of true statements presented selectively so as to create a false and highly offensive impression about the plaintiff. Thus, a plaintiff can prevail on a false light claim if the media correctly reports that she took a polygraph test, but implies that she failed the test when she actually passed. A plaintiff cannot prevail when the media correctly reports that one failed a polygraph but failed to report positive but unrelated details about the individual, such as a record of public service or a reputation for helping neighbors.
The common law has been supplemented by various state and federal statutes addressing privacy concerns in an electronic age, but the coverage of these laws is hardly complete. One of the few Pennsylvania statutes addressing these concerns is not a civil liability statute, but rather a section of the Crimes Code. Specifically, 18 P.S. § 5703 makes it a third degree felony for one to intentionally intercept any wire, electronic or oral communication, or to use or disclose such communication with knowledge or reason to know that it was obtained through such an intercept. There are numerous express exceptions to the statute, including exceptions based upon the consent of the person being recorded. One significant exception not within the body of the statute itself is based on the core legal concept underlying most privacy law – the notion of one’s “reasonable expectations of privacy.” While we have a reasonable expectation of privacy in the conversations we have with our loved ones in the comfort of our own homes, the Pennsylvania Supreme Court has ruled that the communications interception statute at 18 P.S. § 5703 provides no protection to defendants whose conversations in their own home were loud enough to be heard through wall of their home into an adjoining home. In that case, child care providers had no justifiable expectation of privacy, so that their neighbors’ tape-recordings of the providers using obscene language directed at children, arguing over explicit sexual issues, and threatening children under their care were not unlawful intercepts.
There remain many privacy issues not governed by specific statutes, and our transition from paper correspondence to communication by e-mail presents challenges for lawyers and judges working within a framework of civil privacy laws developed largely prior to the age of electronic communication. Here again, the concept of “reasonable expectation of privacy” is critical. While hard and fast rules about privacy rights in e-mail communications remain elusive, it can be said that there is a greater expectation of privacy in e-mails sent from a home computer than with private e-mails sent from the computer an employee uses at his employer’s place of business. There is also a greater expectation of privacy with encrypted e-mails than with unencrypted e-mails. On this issue, the law has long held that privacy claims are lost when one voluntarily transfers information to another without couching it in some form of confidentiality restriction. Thus, there is no privacy right to any e-mail which one voluntarily posts in a chat room. There is also a distinction to be made between the contents of an e-mail and information about the e-mail account, such as who is sending e-mails to whom. It is to be expected that the content of e-mails will be entitled to greater legal protection than transactional information about the e-mail account, its sender and its recipients.
Privacy law today is a haphazard assortment of express and implied constitutional protections, and state and federal statutes all set against an often archaic backdrop of state common law. It is a highly complex and constantly evolving area of law for which this column can provide only the briefest of overviews. As with any legal matter, specific questions about privacy issues should be taken up with your legal counsel.