Privacy in the Information Age

8 February

• So, back on the Restatement of Torts, we've got:
  1. Intrusion: in addition to last week's elements, note that this must be intentional.
  2. Public disclosure
  3. False light: in addition to last week's elements, note that the publishing must be reckless.
  4. Appropriation of identity:
     • Appropriation
     • For your own use or benefit
     • Name or likeness of another
• These are Prosser's categories (not the WI SC justice)
• Someone pranked Chase Masterson by putting some information about her onto a dating site. Is this a misappropriation under #4 above? Maybe you could say that against the web site (except that the web site is probably immunized under the CDA (see the Roommates.com case from property), but you might have an easier shot at false light vs the original poster.

  Does it matter that she was a public figure? Maybe in terms of the degree of harm, but not the cause of action.

  So as a plaintiff, you're interested in multiple parties:

  1. The OP
  2. The web site
  3. The people who take the info from the web site and do some harrassing/stalking with it
• Note that the "creepy factor" isn't really in Prosser's list: there's an emotional aspect to privacy that isn't covered by standard tort interests, and that's part of what Bloustein is talking about.
• Damage to reputation might derive from a lawsuit, so that might be a disincentive to sue: by doing so, you might make your problem worse by making it more public and well-known.
• Time Inc. v. Hill
  So there probably wouldn't be a cause of action against the author, because he explicitly disclaims the work as fictionalized.

  False light is probably the best shot here: the case can proceed under a recklessness standard, because Time probably did know that they were portraying fictional things as though they had happened.

• Anyway, there's more at work here than copyright or property interests: there's an element of emotional harm. If we believe Posner, and privacy law is just a reflection of economic interests, then something like the Chase Masterson case is problematic-- protecting famous peoples' information is kind of like the factory fly-over issue. It might be a special case worth defending against in the interests of not killing off the movie-star business. Or, viz. the Hills, Posner might see this as defamation.
• So Bloustein dismantles Posser's taxonomy, and tries to give a new cause of action (instead of just new ways of having old torts). It's difficult to administer, though (although, on the other hand the standard of "highly offensive" is hardly cut-and-dried).
• A nice thought: Prosser's 4 causes of action are useful indicators of when privacy is unavailable, perhaps moreso than they are areas where it can be vindicated.
• Is Scripps, the human cannonball, purely an economic case? He certainly frames it that way. Would he have had a cause of action under Bloustein's theory?
• In each of Bloustein's arguments, incidentally, he gets back to control: master-servant, control over the right not to be used by others, etc. He considers dignity to be intrinsic, but is that a solid premise?
• Maybe our society has lost a sense of dignity. Or, put another way, maybe dignity is tied to control over your image, and when we've lost one, we lose the other. Also, part of the question is what the "community" is within which private information is shared: with Warren and Brandeis, it was only a harm when the information left their social circle, and the (poor) public were able to read about them. Maybe our tolerance for intrusion these days is linked to the expansion of our communities.
• Hirsch v. SC Johnson
  WI common law didn't recognize a right to privacy (it actively rejected it for a while), but the court decided to retroactively apply its new statute to a case that took place before it was enacted.

  Here, property rights make it more easy to decide. The court can't use the statute per se, and it can't pick one of the causes of action that WI has explicitly rejected, so it settles on appropriation: that was the one common law that survived.

  This is different from Scripps, though, in that it's not purely economic. He's not just complaining that he didn't get paid-- he wants to pick who can use his image.