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Bringing Privacy Law out of the Closet: a Tort Theory of Liability for Intrusions in Public Places Andrew Jay Mcclurg

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Bringing Privacy Law out of the Closet: a Tort Theory of Liability for Intrusions in Public Places Andrew Jay Mcclurg NORTH CAROLINA LAW REVIEW Volume 73 | Number 3 Article 3 3-1-1995 Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places Andrew Jay McClurg Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Andrew J. McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989 (1995). Available at: http://scholarship.law.unc.edu/nclr/vol73/iss3/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. BRINGING PRIVACY LAW OUT OF THE CLOSET: A TORT THEORY OF LIABILITY FOR INTRUSIONS IN PUBLIC PLACES ANDREW JAY MCCLURG* In this Article, Professor McClurg posits that the right to privacy in tort law must be expanded. His proposal offers relief to a class of plaintiffs that are routinely denied a forum for litigation-those who suffer invasions of privacy in a "public" place. McClurg asserts that this lack of protection is ironic: while the right to privacy in tort law has been limited by courts in recent years, the excesses of modern journalism and the proliferation of video camcorders have greatly increased the threat that individual privacy might be invaded, particularly in public places. Consequently, McClurg argues for legal recognition of a right of "publicprivacy." While some courts have intuitively recognized such a right,McClurg asserts that express recognitionof a right of action is necessary. McClurg's proposal redefines the tort of intrusion (as incorporated in the RESTATEMENT (SECOND) OF TORTS) to allow recovery for highly offensive instances of public intrusion. He enlists a multifactored standard to assess the offensiveness of intrusive conduct, a standardthat balancesprivacy interests against the countervailing interests of free social interactionand free speech. I. INTRODUCrION .................................. 990 II. THE SHRINKING RIGHT OF PRIVACY IN TORT LAW ....... 996 III. THE GROWING THREAT TO PRIVACY: REVISITING THE FEARS OF WARREN AND BRANDEIS ............. 1009 A. The Uncivil Media ............................ 1009 B. Video Cameras: The Newest Threat to Privacy ...... 1017 IV. PROTECTION IN PUBLIC: A THEORY OF "PUBLIC PRIVACY" .. ................. 1025 A. Defining Privacy ............................. 1028 1. Solitude-Physical Access to a Person ......... 1031 2. Secrecy-Information Known About a Person ... 1031 * Professor of Law, University of Arkansas at Little Rock. The author is grateful to the Arkansas Bar Foundation for its generous research support and to Sherri Arman for her excellent research assistance. NORTH CAROLINA LAW REVIEW [Vol. 73 3. Anonymity-Attention Paid to a Person ........ 1032 B. Refuting Dean Prosser'sPremises ................ 1036 1. Assumption of the Risk .................... 1036 2. The Relevance of Photography and Videotaping 1041 V. INDIRECT RECOGNITION OF A REMEDY FOR PUBLIC INTRUSION UNDER CURRENT LAW ............ 1044 VI. REDEFINING THE TORT OF INTRUSION TO INCLUDE A RIGHT OF ACTION FOR "PUBLIC INTRUSION".......... 1055 A. ProposedMultifactor Redefinition ................ 1057 B. Commentary on the Factorsfor Evaluating "Offensiveness" . ............................ 1059 1. The Defendant's Motive .................... 1059 2. The Magnitude of the Intrusion, Including the Duration, Extent, and Means of Intrusion ............... 1063 3. Whether the Plaintiff Could Reasonably Expect to Be Free from Such Conduct Under the Habits and Customs of the Location Where the Intrusion Occurred ... 1066 4. Whether the Defendant Sought the Plaintiff's Consent to the Intrusive Conduct ............. 1067 5. Actions Taken by the Plaintiff Which Would Manifest to a Reasonable Person the Plaintiff's Desire that the Defendant Not Engage in the Intrusive Conduct.. 1069 6. Whether the Defendant Disseminated Images of or Other Information About the Plaintiff Acquired During the Intrusive Act ......................... 1070 i. The Importance of Dissemination in Evaluating Offensiveness ......................... 1072 ii. Filling the Gap Left by the Death of the Tort of Public Disclosure of Private Facts .......... 1076 7. Whether Images of or Other Information About the Plaintiff Acquired During the Intrusive Act Involve a Matter of Legitimate Public Interest ........... 1078 VII. CONCLUSION ................................... 1085 I. INTRODUCTION One lesson of modem privacy law in the tort arena is that if you expect legal protection for your privacy, you should stay inside your house with the blinds closed. Tort law clings stubbornly to the principle that privacy cannot be invaded in or from a public place. However sound this rule once may have been, it is flawed in a modem technological society where the video camcorder has become 1995] PUBLIC PRIVACY a permanent fixture and where invasive tabloid and reality television' programming have become standard forms of journalism and entertainment. Instances of intrusive conduct in public places are becoming increasingly common and more brazen.2 This Article posits that invasion of privacy law should be modified to allow a cause of action in limited circumstances for the tort of "public intrusion."3 The tort of intrusion is one of four invasion of privacy torts widely recognized by American courts.4 It is intended to protect against intrusions, physical or otherwise, "upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person."5 As interpreted by almost all courts, the tort does not protect persons in places accessible to the public.6 Thus, tort law 1. "Reality" television is a label used to describe a genre of television programming often featuring live video coverage of dramatic events. Popular segments include footage of police officers stopping, questioning, searching, or arresting motorists, and emergency response teams, such as firefighters or paramedics, responding to calls for assistance. See infra notes 117-25 and accompanying text for a discussion of the threat that reality television programming poses to privacy. 2. This Article discusses many examples of such intrusions. A notorious recent illustration involved the publication of photographs of Princess Diana of Wales taken as she exercised at a London fitness club. The camera was hidden in the ceiling and captured the Princess in various suggestive poses as she exercised on a leg press machine. See WOWI Di as you've never seen her before, STAR, Nov. 23, 1993, at 1, 35-37 (publishing several of the photographs). As used in this Article, the term "public place" refers broadly to any place accessible to one or more members of the public. This categorization includes health clubs, restaurants, shopping mails, and other businesses, as well as public parks and streets. 3. This Article involves only the right to privacy under tort law. It does not address constitutional rights to privacy. 4. The four invasion of privacy torts are intrusion, public disclosure of private facts, appropriation, and false light. See infra notes 39-42, 56-66 and accompanying text for a general discussion of these torts. Most states that recognize the four privacy torts adhere to the definitions offered in the RESTATEMENT (SECOND) OF TORTS §§ 652B-652E (1977) [hereinafter RESTATEMENT (SECOND) OF TORTS]. See infra note 41 and accompanying text (citing cases). 5. RESTATEMENT (SECOND) OF TORTS, supra note 4, § 652B. The full text of the Restatement definition of intrusion reads: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Id 6. See, e.g., Hartman v. Meredith Corp., 638 F. Supp. 1015, 1018 (D. Kan. 1986) ("The plaintiffs must show that there has been some aspect of their private affairs which has been intruded upon and does not apply [sic] to matters which occur in a public place or place otherwise open to the public eye."); Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1087 (E.D. Pa. 1980) ("[T]his tort does not apply to matters which occur in a public place or a place otherwise open to the public eye."); Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101,1116-17 (Md. Ct. Spec. App. 1986) ("There is no liability for observing him in public NORTH CAROLINA LAW REVIEW [Vol. 73 currently provides little protection from intrusive videotaping, photography, or surveillance, so long as the activity occurs in a public place. The steadfastness with which courts have clung to the rule that what occurs in public cannot be private traditionally has meant that most instances of public intrusion do not result in litigation. When they do, the plaintiffs lose early and often. Consider the results in the following cases: e Without her consent, a woman who belonged to a health club was videotaped while exercising at the club. A portion of the video was shown on television as part of a commercial for the health club. Summary judgment for the defendant was upheld.7 * Police conducted surveillance (for no legitimate purpose discernible from the opinion) of employees of a company who were meeting to organize a union. The police recorded and traced
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