News? Or A Violation Of Privacy?

from the questions-all-around dept

Two separate stories crossed my desk recently, that both raise some interesting questions in today’s internet age. The first was concerned about whether or not a newspaper in South Carolina violated any laws in publishing emails between South Carolina governor Mark Sanford and his supposed mistress in Argentina. The second story involves blog network Gawker which apparently published the private profile of an 11-year-old boy who supposedly was “snubbed” by actress Megan Fox, when trying to deliver a flower to her.

Both raise a lot of questions about definitions of “privacy” when it comes to today’s socially networked and internet-connected world. It seems like there are numerous questions (and different jurisdictions and laws) that come into play in determining what is or is not a legal violation of privacy — but if you’re a lawyer who practices in this area, I would imagine that the next few years are going to be very busy ones. I’m not about to make a judgment call on either one at this point, but it would be fascinating for lawyers (and others) to chime in both on what they think from a legal standpoint and what they think from a “reasonable” standpoint.

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Comments on “News? Or A Violation Of Privacy?”

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Steven (profile) says:

Re: Privacy is dead

I really don’t think we’ve lost any privacy at all. What we’ve lost is that gray middle ground between private and public. Things that used to be ‘private between me, my close friends, and family’ were never really private. That information was reasonably hard to get at and had (really still has) very little value to the general public. The information doesn’t have any more value, but it’s vastly easier to get at, so the cost has gone down.

Ikonoclasm says:

Privacy is dead

Hasn’t it been a truism for the past decade or more that if you don’t want something being seen by the entire world, don’t put it on the internet? Someone can and will find it if they want to.

Clearly the governor should have spent a bit less time waxing poetic and more time investigating how to encrypt email using a 1024-bit key. Of course, that requires both parties to be equally paranoid conscientious

Kenton Hutcherson (profile) says:

The Legal Framework

There are two “invasion of privacy” claims that may be applicable here:

1. Public Disclosure of Private Facts

To establish this claim, one needs to generally prove:

a. The defendant publicized information about the plaintiff’s private life;

b. The publicity would be highly offensive to a reasonable person;

c. The matter publicized is not of legitimate public concern; and

d. The plaintiff suffered an injury as a result of the defendant’s disclosure.

2. Intrusion on Seclusion

The elements of this cause of action are, generaly:

a. The defendant intentionally intruded on the plaintiff’s solitude, seclusion, or private affairs;

b. The intrusion would be highly offensive to a reasonable person; and

c. The plaintiff suffered an injury as a result of the defendant’s intrusion.

In the case of the Governor Sanford, since he is a public figure and adultery is against the law, the emails are most likely fair game because they would be considered “legitimate matters of public concern”. That being said, there could still be a crime if the emails were unlawfully “intercepted” or if somebody hacked into his email account.

As for the 11 year old boy, publishing his private profile can certainly constitute both a public disclosure of private facts, as well as intrusion on seclusion.

My guess is, however, that Gawker had a clause in its terms of service in which the 11 year old boy “consented” to this type of disclosure. The fact that he is only 11 years old may raise an issue as to whether or not he can consent to such a disclosure…

Ima Fish (profile) says:

I’m having trouble understanding how a private profile of an 11 year old boy could be news. His claim to fame is that he tried to give flower to a celebrity, but she was too busy to notice.

No, that’s not his claim to fame. That sort of stuff happens every day. His claim to fame is that someone video taped it and it went viral.

If the 11 year old boy had attempted to kill a celebrity, his personal profile might be newsworthy. But I see nothing that the public has a right to know relating to this complete non-incident.

Jason says:

It’s foolish for anyone to think that email is a secure form of communication. Unless you’re using encryption, you might as well be using a public forum to chat. Encryption isn’t even particularly hard to achieve either. Using the Voltage Security Network all I have to worry about is clicking a “send secure” button and I can also send to anyone (and they can reply securely without any software). Check it out here:

Tony P says:

The first case seems to clearly revolve around how the emails were initially obtained, as others have already noted.

The second case does not seem to have broken any laws, although it makes me question Gawker’s ethics. The article you linked to about the Governor’s emails makes the point that “misplaced trust does not constitute a defense”. The kid gave permission to his profile to someone else, who then forwarded on the content. I don’t know anything about Facebook’s policies for children and their friends, so there could be a violation of the TOS.

The minute you share any data, online or not, without some sort of legal protection like an NDA, there can be no expectation of complete privacy. I still can’t understand why this seems to be beyond the comprehension of most people.

Gene Cavanaugh (profile) says:

Privacy Laws

Although I am an attorney (as opposed to a lawyer, who by definition is representing a client, rather than speaking on his/her own behalf) I do not specialize in these areas. I also find that the legal waters have been muddied, due to the Courts appearing to support the clearly illegal acts of the Bush administration.
Even so, I will point out that, while these are very important questions, there is not enough information to give a reasonable answer, and in the long run, “knee-jerk” reactions are far worse than not answering – so, no answer.

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