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.
