The Volokh Conspiracy

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Volokh Conspiracy

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).]