Category Archives: invasion of privacy
Before I was a licensed attorney, I worked in journalism, not as a reporter, but as an analyst. I am very well aware of the ethical standards that “should” apply to the media profession, but often doesn’t. Today we are in mourning for innocent lives lost in Connecticut, but in the rush to get a story, the media botched items up big time. In attempting to identify the shooter, the media identified and broadcasted the name and image of the wrong man. Fox News, CNN and CBS named the shooter as “Ryan Lanza”, when in reality it may have been this man’s younger brother “Adam Lanza”.
Apparently, according to Business Insider, Mr. Lanza took to his facebook account to vent his frustration.
This man may have lost his father, his mother, and his brother today, along with the feeling of being associated with one of the worst cases of mass murder in history. His name has been broadcast as the perpetrator of a horrible crime at the same time. Above everything, he needs to have our sympathy and prayers. The media really screwed up big time today. There are several causes of action Mr. Lanza could have against the agencies that reported this blatantly irresponsible information. Among them, invasion of privacy- false light, and defamation. Mr. Lanza did not ask to be thrusted into the situation. He was put there by grossly negligent actions of several large news agencies.
While I can never feel what he’s going through I can sympathize. A few years ago, a friend of mine had a sibling (who I had only met once), who was involved in a mass school shooting. The press was not sympathetic to her either, but at least they didn’t accuse her.
If Mr. Lanza reads this, I am more than willing to take on the case, free of charge, and I will work as hard as possible to see that he receives a just and fair result.
I have to give my wife credit. She is Emily Zanotti of Naked DC who created this highly addictive internet meme “Hey Girl, it’s Paul Ryan” on tumblr. At least this gives me the opportunity to discuss an area of tort law that is often overlooked. Invasion of Privacy, false light. No, this internet meme does not constitute “false light”. However, it is very good example of how a tumblr could become false light.
Invasion of privacy is a very broad tort, it is not just invading someone’s private life and publishing the information. Believe it or not, false light is just one of four types of invasion of privacy.
In general a false light tort has four elements
- A publication by the Defendant about the Plaintiff,
- made with actual malice,
- which places the Plaintiff in a false light; AND
- that would be highly offensive
Notice that the information in the publication does not have to be false, it can be as true as the theory of relativity, it can still be considered false light if it meets the four elements. One example I use when I train reporters is a hypothetical situation involving a Lindsay Lohan type character. She is photographed with powder on her face that looks like cocaine but is actually white powder make up that was accidentally spilt. The photo is then published with the headline “(Insert Name) is whacked out on crack”. The headline combined with the picture could place the defendant in a false light.
Now, can you see how this could work with an internet meme? That picture could be used with a whole number of headlines to the point where it could become a meme unto itself. So, when posting internet memes, just beware of this tort lying in the background. The benefit of doing this about politicians is since they are public figures, it is much more difficult to prove actual malice.
The Cyber Intelligence Sharing and Protection Act (CISPA) has been a dominating news topic in the world of internet law since the House of Representatives passed their version last week. Most of the coverage has been dominated by rhetoric of one sort or another by differing sides of the debate. Most of the argument has concerned overarching principals, but very little of it has discussed how it affects individuals. Is it the 300lb gorilla that would reduce individual liberty to a mere shaddow of an ideal? Does it affect the type of cyber security necessary to protect our national security as a whole?
What does CISPA require you to do?
In the most simplest terms, absolutely nothing. CISPA creates no obligation whatsoever for anyone using the internet for personal or business purposes. It does not even require corporations to report potentially threatening internet activity. Internet service providers are not required to limit bandwidth of possible copyright offenders. Google is not required to keep internet search records (yeah they do anyways). No one is required to do anything at all?
Wait, how then does CISPA affect me?
While CISPA does not require anyone to do anything, it allows corporations to gather information on users, analyze them (yes they often do this for commercial purposes anyways), and share any of this information, including intellectual property information, for building of internet infrastructure. Any information that that pertains to protecting their network may also be shared with the National Security Agency. On top of that, the bill affords protection against privacy lawsuits for companies who engage in this activity. Say, for example, you sign up to use a social networking product, and the licensing agreement states that the social network site will not use your information for their benefit (no social network company would do this in their right mind, but lets just say this for hypothetical purposes). If the company sells your information for the purpose of “affording protection of their network”, or decides to leak a picture to the government of you downing a fifth of Jack Daniels at a Las Vegas beach party for “security reasons”, you would probably lose a lawsuit against them for invasion of privacy and breach of contract, even though it goes against the specific terms of the licensing agreement.
How come, if the purpose of the bill is for enforcement of cyber security, is this a possible affect?
The Bill is worded fairly vaguely to where the cyber security purpose of the bill is overshadowed by the privacy implications of the bill.
President Obama has threatened to veto the bill. A White House press release states:
H.R. 3523 fails to provide authorities to ensure that the Nation’s core critical infrastructure is protected while repealing important provisions of electronic surveillance law without instituting corresponding privacy, confidentiality, and civil liberties safeguards.
A Reader via email asks:
My daughter has had a “fake” Facebook page the past few years – not her real name, to stay anonymous but interact with people who like the same music she did. The fans are more than a little strange and she was only 19 at the time. She interacted with a young man on facebook and email approx 5 months who wanted a relationship with her, without ever divulging her real name/address/phone. She decided against it and ended contact with him a few weeks ago. Now he’s claiming my daughter was stalking him, impersonating someone she wasn’t and that he’s going to sue her for “anything my lawyers can think of.” I’m wondering what she might have done that could be considered illegal. I’m seriously concerned if this guy can actually hunt her down to our actual address with this threat of legal action.
Ok, here is the deal in plain terms. With the limited information I have, the only trouble your daughter probably caused was a violation of facebook’s terms of service. Facebook requires that users must be real persons and do not allow for any sort of pseudo-persons as users of their site.
The only way she could have stirred up some legal troubles is if she impersonated a real person, particularly a celebrity. This would possibly fall under the tort of invasion of privacy- appropriating a false identity. It doesn’t seem to be the case here.
As far as cyberstalking is concerned, the definition differs from jurisdiction to jurisdiction, but in general it is the unwanted and repeated intrusion into another person’s real-life vis-a-vis the internet. It does not look like she has done this, however, her accuser may be liable for cyberstalking himself. False victimization, or wrongly accusing others of cyberstalking is a form of cyberstalking in and of itself. Contacting her through the internet after she has made it clear that she does not want to be contacted is another, more obvious form of cyberstalking. If I were in your daughter’s situation I would make sure that he has no way of accessing her personal information.
Disclaimer: It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
When it comes to requesting the removal of videos from You Tube, most situations fall into two categories. First is Copyright Claim, and under the Digital Millenium Copyright Act, once a takedown notice is recieved, the site has 24hours to remove the site, easy as pie. The second situation falls into tort. Say a video takes clips of a celebrity and attempts to make them look like a sex maniac, or say a video accuses the same celebrity of a sex crime. These are tort situations, invasion of privacy: false light, and defamation, respectively. It is often times much harder to “convince” a site to remove these types of videos, and they will often do so, only in response to a court order.
Now we have a situation where Google (YouTube is a subsidiary) has reported a 70% increase in the number of removal requests from Law Enforcement, of videos allegedly showing police brutality. From Digital Journal:
According to Google, from January to June of this year the “number of content removal requests we received increased by 70 percent,” in comparison to the previous July to December 2010 report.
In addition to the removal requests, the report also showed a 29 percent increase in user data requests. Even though the company reported that in fact it did comply with 63 percent of the government requests overall, they noted that due to the lack of a court order to remove certain content they may decline, stating “we received a request from a local law enforcement agency to remove YouTube videos of police brutality, which we did not remove.”
Adding, “Separately, we received requests from a different local law enforcement agency for removal of videos allegedly defaming law enforcement officials. We did not comply with those requests, which we have categorized in this Report as defamation requests.” (Note that Truth is a defense in defamation claims)
If the videos merely show what happened, then there is no claim for defamation. Defamation occurs when someone states a false or misleading statement against an individual. A video showing police brutality would merely show what happens, nothing false or misleading so there is no chance to prevail in a defamation claim.
There is a possibility for a “false light claim”, which falls under the invasion of privacy tort. Simply put, a false light claim is one where the information transmitted, although possibly truthful, may put an individual a false light than they would have been otherwise. An example would be a video of a law enforcement officer using excessive force to take down a suspect with the caption “Police Brutality”. The video did not include the sequence prior to the detainment, where the suspect struck the police officer in the face and attempted to take his side arm. The police used proper measures during the situation, but the video leads a reasonable person to believe that the suspect was a victim of police brutality. This is the tort of false light.
Although this may be a mere coincidence, religious theorists would lead you to believe that this could be taken as the evidence of a Divine Being, for the chances for randomness of this golden double entendre is so remote, it would defy statistical odds (I apologize in advance, as this post will be full of puns). A member of Congress, married to Secretary of State Hilary Clinton’s long time aide, who happens to have the unfortunate last name of Weiner, has a picture of a semi-erect phallus hidden in boxer shorts tweeted to a 21-year old college coed, Gennette Cordova. If it’s a hacker, then it is no coincidence, no miracle, just someone who thought it would be fun to mess with a congressman, without considering the possible consequences. This does beg the question: Was it Weiner’s wiener?
According to “The Fix“, Chris Cillizza’s political blog in “The Washington Post“, Congressman Weiner cannot state with certitude whether or not the picture was him. Never-the-less, he denies posting the picture on yfrog, and tweeting it to the Seattle area journalism student. He does admit that this incidence has affected him and apologized to the media saying “I am sorry I was a little stiff the other day” (No I did not make that up, obviously the Congressman would not be offended by the jokes in this post).
What are the legal implications of this type of activity? First let’s assume that it can be shown that Congressman Weiner did send the picture:
The possibility of a sexual harrasment complaint or cause of action is minimal. First, there needs to be evidence that Weiner did in fact tweet the picture of his wiener. Second, we need to look into the reltionship between Weiner and Cordova. Sexual Harassment is the unwanted sexual advances, coercion, intimidation or bullying of a sexual nature, or the promise of reward for sexual favors. Even if Congressman Weiner did tweet the picture, it is highly unlikely that the incident would “rise to the level” of sexual harassment because they both admit that they had never met each other.
Again, assuming that it can be shown that Weiner did tweet the pic, is it possible, but not likely, that the action could be deemed cyberstalking. Cyberstalking is the use of the internet to threaten or intimidate an individual sexually, on a systematic basis; or the use of the internet to arrange a meeting with the intent of using the meeting to commit a sexual crime. Whether or not this can be considered cyberstalking is dependent largely on whether or not it was systematic. Since by all accounts, this was a one time incident, it is hard to prove that their was any systematic effort to harm Ms. Cordova, so it is unlikely that any cyberstalking occured.
Now, assuming the system was hacked, was causes of action could there be against the individual hacker?
Invasion of Privacy
Invasion of privacy is a sort of “supertort” that encompasses several different types of situation. In this situation, two possible torts apply, each depending on whether or not it was Weiner’s weiner that it was tweeted.
If the picture was an accurate representation of the Member’s member, the most applicable type of invasion of privacy would be “public disclosure of private facts”. This type of tort occurs when an individual reveals information which is not of public concern, and the release of which would offend a reasonable person. In this case, the information revealed was the size, shape, and contours… well you get the picture.
The other type of invasion of privacy occurs whether or not the picture was or not of the Congressman, however it is more likely to occur if it was not a real picture. This is the tort of “false light”. False light occurs when an individual publishes information (in this case a picture), with actual malice, that places the individual in a false light, and would be highly objectionable. Let’s assume that their was actual malice, and the picture is highly objectionable. If the picture was false, it was likely that the circumstances surrounding the tweet, the fact that it was the congressman’s twitter account, still places the congressman in a false light. If it the picture was real, this tort would apply if the information revealed was misleading. For example, it would be misleading if it implied is that the congressman is a perverted sex maniac, or just a creepy guy.
Outside the realm of tort, there is the possibility that a cybercrime occured, depending on the jurisdiction. 25 states and the District of Columbia considers it a crime if someone hacked into an account and distributed lewd content through the invasion of that account. Here depending on where jurisdiction can be determined, the individual who hacked into the account and posted the picture that may or may not be of the Congressman, may have committed a cybercrime.
All of this rests upon whether or not the individual hacker can be caught. Ms. Cordova has stated that she “knows who it is” who “hacked” into Weiner’s account. This is a good step because twitter keeps accurate records of where tweets come from. It should not take long for a computer forensic’s expert to determine the possibility as to whether or not the individual could have hacked into the account. At that point, simple investigative work involving obtaining a warrant and seizing the suspect’s computers could yield the evidence necessary to charge the individual with a cybercrime.
UPDATE! (6/3/2011) 10:30am
Jon Stewart and the Daily Show have their take on the scandal.
|The Daily Show With Jon Stewart||Mon – Thurs 11p / 10c|
|The Big Wang Theory|
Update 6/7/2011 11:36am
Turns out it was Weiner’s Wiener.