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Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Is Privacy Dead?

After hours of testimony before Congress by Mark Zuckerberg about how our personal information was harvested from Facebook, it's hard not to wonder if privacy can survive the digital age. Lost in the dominant discussion of the technology both by the technocrats and the Luddites, is the reality that this is not a new problem. It is centuries old.

A similar outcry arose in the mid-to-late 1800s when new technology made it possible to capture a person's image on the street using a "detective" camera, a portable camera that even an amateur could use. Improved printing technology at the time made it possible for those same photographs to then be widely distributed in newspapers, advertisements, and on products.

What had once been understood as anonymous outings on public streets suddenly became capable of being documented, often surreptitiously. In 1902, the New York Times criticized such "outrages" committed by these "kodakers." The paper observed that even well-known public figures who are "thick-skinned" and not at all "shrinking violet[s]" "revolt from the continuous ordeal of the camera." Other journalists and scholars of the time called for a "right of privacy" to stop such "horrible" invasions.

Those wronged started taking their complaints to the courts and demanding redress. In 1890, the successful stage performer, Marion Manola, no stranger to the public gaze, objected when the manager of a show she was in took her photograph during a performance, and threatened to use it to advertise the show. Manola was particularly disturbed because she appeared on stage wearing tights, and did not want her daughter to see her image all over town in "shop windows." She got a court to stop the use of the photograph. Her lawsuit was covered in newspapers from coast-to-coast with public sentiment squarely on her side.

A decade later, Abigail Roberson, who had sat for a formal portrait by a studio photographer, found her image slapped on thousands of advertisements for Franklin Mills Flour. When Roberson discovered this use of her photograph, she suffered a nervous shock, took to her bed, and required medical attention. When she arose, she too headed to court.

Although she didn't win her lawsuit, the public outrage that followed in the wake of the Roberson v. Rochester Folding Box Co. decision was so great that within months the New York state legislature adopted a right of privacy that would have given her a successful claim. Other states quickly followed with privacy laws of their own. In 1905 the Supreme Court of Georgia agreed in Pavesich v. New England Life Insurance that a right of privacy existed in that state. The court concluded that a life insurance company could not use the photograph of the artist Paolo Pavesich in its advertisement without his permission.

Although privacy claims today sometimes fail because the information disclosed was not secret, or the person entered the public sphere, the right of privacy at its origin was not so limited. Instead, the right of privacy was about controlling public information about oneself. The right was understood and defined as the right to stop "unwarranted publicity" and "wrongful publicity" about oneself.

The right of privacy barred unauthorized uses of people's names and images regardless of whether they were public or private figures, appeared in public, or had initially agreed to the taking of the images. Both Roberson and Pavesich had voluntarily sat for the photographs that were later used in advertisements―perhaps wanting to share the portrait with friends, family, and colleagues, a common activity at the time, just as we enjoy sharing on Instagram and Facebook today. And Manola was a successful actor, who regularly performed on the stage. The picture she objected to was taken during one of her public performances, not in her dressing room.

These early privacy cases remind us of what we mean when we talk about privacy. Privacy isn't about secrecy, it is about control. And always has been.

Even though we are more comfortable today with publicity about ourselves, and are unlikely to collapse and suffer a nervous breakdown if our image appears on an advertisement for flour, this does not mean we intend to cede control over our identities to Facebook or anyone else. What we share online may not be secret, but it is ours. Privacy isn't dead. It is just misunderstood.

[This is the second post in a five-part series about issues raised in my book, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press 2018).]

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  • Gryph||

    "it's hard not to wonder if privacy can survive the digital age."
    Yes, it can.
    It's a simple rule, STOP PUTTING SO MUCH PERSONAL INFO OUT INTO THE WILD!
    If it's common knowledge then no harm no foul, but there is no need to post the crap that people post then get butthurt when it's used against them.
    Stop being so stupid!

  • Longtobefree||

    And what remedy for all of your 'personal' data put on the web by all of your babbling friends? They post photos with geo-data embedded, they tag you in photos, they talk about you being with them at places, etc.
    I have never had any social media accounts of any kind and yet am all over the web, not counting the posts on news sites.
    What solution to that, my friend?

    What the web, and social media in particular, has done is turn the entire world into a small New England town run by the mean old local gossip who knows everybody's business and tut-tuts endlessly to compel 'correct' behavior.
    And that is not a good thing.

  • MatthewSlyfield||

    If you have gossipy friends who know personal information about you, that information isn't private and wasn't private long before the internet and social media. The internet and social media have had at most a marginal impact on the privacy of such information.

  • SQRLSY One||

    I'm writing something about this topic, to try and publish, right about now. So if you have time, please post some more of your thoughts.

    Your friends post all sorts of photos of you? Do they say good things or bad things about you? Do they say true things or false things? If they say way-bad things about you that are not true, you have your remedy in court, you know, especially if it significantly hurts your reputation or your earnings. And you also have the options of asking them to NOT do that, or to spread gossip about their gossiping, or truths about their gossiping. What's good for the goose, is good for the gander.

    Your analogy to the gossips of yore is apt, I have been thinking the same things… Say Irma and Bertha and Bessy… Those were popular names in the late 1800s, I am told… Talk of each other. "I saw Bessy at the country store", is that OK? It is the verbal equivalent of posting Bessy's photo on Facebook, at that store. If Bessy starts running around telling people that they may NOT tell other people that she was at the country store, she will get a reputation as being a "Bossy Bessy", and people are free to gossip about that as well as to gossip about the gossipy ways of others. It's when the law starts showing up, that some of the worst abuses take place.

  • SQRLSY One||

    So then let's take the analogy a wee tad further… People get so sick and tired of Irma and Bertha and Bessy and their gossip, that they tell the owner of the country store, WITH THE FORCE OF LAWS, that he make not sell paper and pens to Irma and Bertha and Bessy, because they use this media to spread gossip! If country store owner sells them any paper and pens, he is responsible for making sure that Irma and Bertha and Bessy don't spread gossip!

    I don't think it is justified when people try and use the laws to tell Facebook, what Facebook can and cannot provide, in the way of tools, to gossips. The gossipers should be held accountable (by whoever, in whatever way), but we are all held accountable, in some way or another, for what we do. And if we over-apply the force and power of laws, that bad karma will somehow come back and bite us in the arse as well. I'm not sure how, but I think that it will.

  • Rossami||

    Interesting analogy. Let's extend it a bit. Would it be appropriate to tell Irma and Bertha (with the force of law) that they may no longer gossip about Bessy's impetigo? Or to continue spreading the rumor that what Bessy claims is impetigo is really the French Pox? Would it be appropriate to editor of the village newspaper that he may not pay Irma or Bertha for their gossip?

  • SQRLSY One||

    Off the top of my head, being fairly strongly libertarian, I think that the law should stay out of it, short of clearly demonstrable financial damages caused by libel. Bessy can fight back with her own gossip, and call the gossipers what they are. But that's just my opinion, of course...

  • NToJ||

    "What solution to that, my friend?"

    Get new friends?

  • SQRLSY One||

    I have little sympathy for actors and actresses who primp and preen all day every day, saying "look at me look at me look at me look at me look at me..." and make money off of it...

    Then they turn up in public (badly drunk and carrying on maybe? Assaulting people?) and they say "stop looking at me, stop looking at me with your camera!"

  • BillyG||

    In the case of Abigail Roberson, I wouldn't cover it under Right to Privacy. What I would cover it under is the right to control how ones own likeness is used. At which point I'm going to reference the this lawsuit.

  • Goju||

    Once even the most minute point of your data is online, it is no longer your's. Doesn't matter who put it there or why. It then opens the door to Facebook, Google, hackers, CIA, or whoever to track you. And you will never know who is tracking you or why. Sounds like a paranoid's delusions but the delusions have become real.

    Unfortunately, tin hats will not make the reality go away.

  • loveconstitution1789||

    Privacy is NOT dead. Stop posting all your personal info on websites that don't need the info, demand that the websites that do (for shipping or buying) protect your info, and vote politicians out who think personal privacy is some joke.

  • Scarecrow Repair & Chippering||

    Seems to me the advertising cases could easily be handled as theft. If someone's reputation is such that their endorsement can sell product, then it's valuable in itself, and belongs to that person to sell / rent as they wish. It's a property if you will. Slapping someone's face / name on a product implies endorsement or actual involvement in product design and manufacture.

    But you could say the same about any news story about anything. Yes it's news when a celebrity shows up, lost of people care because that's what celebrities are. But the newspaper which reports on upcoming arrivals, or reports on yesterday's events, is making money off the celebrity's reputation; doesn't that rob the celebrity of potential income? Surely the newspaper would have been willing to pay some small portion of their increased circulation and advertising revenue. On the other hand, some celebrities are too minor to warrant newspaper reports; they'd have to pay the newspaper for reporting. Only they can tell if the investment is worthwhile, and the newspaper has to consider the hit their own reputation will take for puffing up a nobody.

    Pretty soon you've invented micro-payments!

  • Scarecrow Repair & Chippering||

    I wonder if the theft angle could be perverted with a reverse twist .... suppose some celebrity used that to argue that a newspaper or magazine owed restitution for lost income, since freely reporting on their schedule increased their sales and thus that information was valuable and stolen? (I am only half serious, for those that are hyperventilating right now.) Then could a newspaper turn around and sue a washed-up celebrity for not increasing sales as much as promised?

    Seems like you could make a fun dystopian novel out of that.

  • BillyG||

    A non-dystopian version would be if the Newspaper had to pay money to individuals it covered for proffiting off of the individuals (showing their likeness, using their names, etc...). Different rates for cover page vs. Section D19.

  • TwelveInchPianist||

    "...this does not mean we intend to cede control over our identities to Facebook or anyone else."

    But you checked the little box that said that that is indeed what you intended.

    Of course, just because someone has information about you doesn't mean that they "control your identity." Gathering information about people is important to understanding the world around us. Knowledge is good.

  • Eidde||

    It's just resting.

  • NToJ||

    "...this does not mean we intend to cede control over our identities to Facebook or anyone else."

    Facebook publishes information about how it intends to use your data. Voluntarily signing up for Facebook is ceding control over the data you submit to Facebook. This hand-wringing is like wondering whether privacy is dead because you can't run down the street naked and expect people to avert their eyes.

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