Saturday, March 9, 2013

Invasion of Privacy - Part 2

The public’s endless fascination with the private details of the rich, the famous and the unusual has driven aggressive journalism tactics to extremes that the drafters of our Constitution would never have imagined when they contemplated freedoms of the press. 

Modern photojournalism began in the United States in the 1880’s and it is no coincidence that privacy concerns started almost immediately.  In 1890, two lawyers, Samuel Warren and LouisBrandeis, published a law review article titled “The Right to Privacy” primarily to address concerns about aggressive journalists publishing information that people considered private.  The essay was directed at gossip and society sections of newspapers. 

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."

The article was extremely influential and began the gradual recognition of a new privacy tort but 120 years later the tension between dueling freedoms of the press and individual privacy has never been greater. 

Caselaw, scholarly analysis and legislation have defined the parameters of the now almost universally accepted tort of invasion of privacy and broken it field into four categories:  1) “intrusion of solitude”; 2) “public disclosure of private facts”; 3) “false light” and 4) “appropriation.”  For this series, we will focus on “public disclosure of private facts” which is the main area of this tort applicable to restricting modern paparazzi. 

Hawaiian Privacy History

In 1968, the Hawaii Supreme Court recognized the broad concept of “invasion of privacy” by allowing a lawsuit for the tort of appropriation while hinting that other aspects of the tort may exist.  Also in 1968, the Hawaii constitutional convention debated invasions of privacy and added new language in the Hawaii Constitution.  The intent of the language was not entirely clear, however and the Hawaii Supreme Court only extended the new protections to government intrusions and not those by private citizens. 

In 1978, Hawaii held another constitutional convention and clarified the state’s intent to recognize the tort of invasion of privacy by adding a new provision specifically addressing the issue.  The convention language left no doubt as to its objective when it stated that “[i]n short, this right of privacy includes the right on an individual to tell the world to “mind your own business.”  Since 1978, Hawaiian case law addressing invasion of privacy has consistently confirmed the widely recognized four branches of the “invasion of privacy” tort. 

It is worthwhile at this point to note that invasion of privacy by the government and invasion of privacy by another citizen are two entirely different matters.  Government intrusion is specifically addressed in the Fourth Amendment to the U.S. Constitution and pertains to situations in criminal cases when police are searching for evidence.  The term “reasonable expectation of privacy” was coined in the famous U.S. Supreme Court case of Katz v. United States while discussing a governmental search and seizure. 

Invasion of privacy by a private person who is not acting for the government refers to the common law right to sue and recover damages.  The phrase “reasonable expectation of privacy” has often been borrowed from the criminal context and applied to civil cases because of its ability to concisely articulate an inherent right that we all feel. 

The new privacy legislation introduced by Senator Kalani English this year is a new and fascinating chapter in the invasion of privacy story.  As we continue the privacy series, we will consider the tort of “constructive invasion of privacy” in more detail and its relationship to the current four-part privacy tort.  

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