Unauthorized Capture and Transmission of Data
Almost every cellular phone that is now sold has a camera of some sort embedded into it. The potential for individuals to capture and transmit our image without permission has become a common fact of contemporary Western life, but this has not always been the case. When Polaroid cameras were new and first used to capture images of indiscretions for gossip columns, Warren and Brandeis wrote an article asserting that the unauthorized capture and transmission of photos and gossip constituted a privacy violation. Such transmissions threatened to destroy “at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under [gossip’s] blighting influence” (Warren and Brandeis 1984: 77). Individuals must be able to expect that certain matters will be kept private, even when acting in public spaces – they have a right to be let alone – or else society will reverse its progress towards civilization.
The right to be left alone means that publications must avoid inappropriately intruding on the private lives of individuals, and that these publications secure the consent of individuals prior to disclosing information collected about them (Warren and Brandeis 1984: 79). Warren and Brandeis maintain that such intrusions be limited on two grounds. First, the principle of inviolate personality should be legally asserted to prevent the reproduction of one’s physical and mental actions on the basis that it intrudes on one’s ability to live with dignity. By violating the personality through unauthorized retransmission that person will be less willing to be themselves – violations threaten to condition one’s behaviour by dimming enthusiasm and generosity.
Second, intrusions must be limited because they may carry serious moral or reputational damages, and such damages should be protected against (Warren and Brandeis 1984: 78). These protections should be made manifest in tort law, where injury can be understood in terms of emotional duress for the purposes of the tort. This introduces the touching of the non-physical as warranting tort damages, which is a significant shift from the physicality required for tort claims in 1890 when Warren and Brandeis wrote their article.
While the authors speak of an individual’s ‘inviolate personality’, we might ask whether they are making a privacy claim, or instead are making claims that expand the jurisdiction of copyright and tort-damages under the auspice of privacy. Privacy in public spaces, under a copyright/expanded damages reading, would mean that reproductions of personal thoughts and actions without consent (barring cases of legitimate public interest and lowered expectations of attention resultant from holding public office) or libel gossip could be prosecuted. This said, Warren and Brandeis note that ‘public’ disclosures (e.g. court proceedings) can be disclosed without infringing on one’s privacy. Thus, there is a distinction between being in public (i.e. walking down the street) and being in the public eye (i.e. in court). We might understand this distinction in the sense that what legally enters the public domain (in copyright terms) cannot be considered to violate one’s privacy, even if what enters the public domain in a court proceedings (as an example) might be deeply embarrassing and of minimal value to the proceeding.
What would this mean for public digital environments such as Twitter? Would publishing minutia in 140 characters and seeing that minutia republished in a gossip column constitute a ‘privacy violation’? What if someone, not on a friends list, ‘retweets’, or reposts, the message to all of their friends without you learning that they had done so? It would seem on first glance that, if we approach these situations from a mental distress point of view, a violation being registered depends on the individual learning of the publication. If the individual never learns of the publication, then at best the dignity of their person might be damaged, but it is questionable whether or not the felt effects of such damage would be emotionally felt. Without such damages, a tort claim’s strength is greatly diminished.
A stronger argument might be made that an instance of copyright infringement that warranted a legal response occurs when a tweet is reposted without consent. Of course, this would assume that text in online environments retains standard copyright and that we could clearly state what, exactly, a copyright in a digital space was. Even making a case for fair dealing is challenging. In the case of Twitter what constitutes fair dealing – a portion of a 140 character message, the entirety of a twitter stream, or some other allocation of text? Should infringement occur when someone profits on my words without compensating me, or do I lose the legal claim to profits because the words are spoken in public? Effectively, I argue that the strength or weakness of this kind of claim rests on a legal wrangling surrounding the ownership of words and appropriate payment for their use – I’m uncertain that we even need to think of this in terms of ‘privacy’ as Warren and Brandeis operationalize the term.
Warren, Samuel D. and Louis D. Brandeis (1984). “The right to privacy [The implicit made explicit],” in Philosophical Dimensions of Privacy: An Anthology, Ferdinand D. Schoeman (ed.). New York: Cambridge University Press.