Tuesday, October 13, 2015

Privacy and Public Image

By 1940, the tort action for invasion of privacy had been recognized in fifteen jurisdictions. The Restatement of Torts acknowledged it in 1939: "a person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other."

Most privacy lawsuits were brought against the media, and most did not involve publications that were especially "private." A number of privacy suits involved pictures of a person taken on the street and published without consent. In these cases, the law of privacy had little to do with "privacy." No exposure of private life had occurred. "Privacy" was about shielding people from publicity they found unfavorable, misrepresentative, or annoying -- that clashed with how they wanted to be known to others.

In Jones v. Herald Post (1929), Lillian Jones witnessed her husband assaulted and stabbed to death on the street, and she tried to fight back against the attackers. She sued for invasion of privacy when the Louisville Herald Post published her picture with a truthful account of her heroic efforts. She said that the publication was offensive to her.

The plaintiff in the 1931 case Blumenthal v. Picture Classics was an elderly woman, a street vendor, who sued over newsreel footage that depicted her on the streets of New York. The footage was candid and unaltered; she was in the film for six seconds. She complained that the portrayal was "foolish, unnatural, and undignified" and an invasion of privacy. In Sweenek v. Pathe, from 1936, a woman claimed that unauthorized newsreel footage taken of her in an exercise course for overweight women was an invasion of privacy because the footage was embarrassing.

As I argue in Laws of Image: Privacy and Publicity in America, it's only in a culture where people feel possessive and protective of their images that such representations, even if objectively benign, will be experienced as significant harms. Only in a culture that has invested great importance in images, that has freighted personal images with emotional and psychological weight, will the law recognize these kinds of harms and take them seriously. The law tracked American culture's focus on images; in recognizing these privacy claims as worthy of judicial attention, and monetary judgments in some cases, courts validated the "image-conscious sensibility" and the modern image-conscious self.

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