Sunday, March 3, 2013

Invasion of Privacy - Part 1

The Hawaiian State Legislature recently considered a bill introduced by Senator Kalani English that would recognize the tort of constructive invasion of privacy.  The legislation is titled the “Steven Tyler Act” and has received an extraordinary amount of attention.  The bill borrows statutory language from a similar California law that targets photographers who aggressively follow and track celebrities with the aim of capturing their picture. 

The Hawaiian legislation is called the Steven Tyler Act because the Aerosmith singer pushed for the legislation after paparazzi photographed him from a boat while he was at his own house on Maui in a situation that most people would consider private. 

Maui is a paradise on earth and as a result many of the world’s wealthy and famous spend time here enjoying the sun, ocean and relaxed island attitude.  Local residents have always respected the privacy of visitors and celebrities alike and only recently have paparazzi begun to cause problems. 

The tort of invasion of privacy was originally introduced in 1888 in a treatise by Thomas M. Cooley when he identified a right “to be let alone.”  Two years later Samuel Warren and Louis Brandeis expanded the concept in a landmark law review article that indentified a right to privacy while criticizing aggressive media.  Within a few years, states began to recognize the cause of action and now many courts from jurisdictions around the country have validated privacy suits. 

The state of Hawaii recognized a right to privacy in a series of steps, beginning with the case of Fergerstrom v. Hawaiian Ocean View Estates.  Two Constitutional amendments followed in 1968 and 1978 that further delineated a right to privacy against both the government and individuals. 

The world was irate in 1997 after Princess Diana was killed in a high-speed car chase purportedly attempting to evade paparazzi.  Soon after, California introduced a law designed to create new privacy protections for celebrities.  The state introduced additional laws strengthening its anti-paparazzi stance three subsequent times and to date, has some of the strongest privacy laws in the nation. 

The effect of the newly proposed Hawaiian legislation would be two-fold.  The bill would confirm in statute the right to sue for an invasion of privacy and would also join California’s law at the forefront of privacy legislation by focusing the lens of the tort to address modern technology. 

The field of privacy torts gives us a rare and fascinating study of how new torts are created and adopted.  When the new privacy Hawaiian legislation was introduced, dire predictions erupted forecasting an avalanche of lawsuits.  With a careful look at the history of this tort and its interaction with the First Amendment, we will see why excessive litigation is unlikely to happen and why this area of law is ripe for legislation and clarification.  We will continue exploring this topic and the proposed Hawaiian law in a series of blog posts about the Invasion of Privacy. 

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