We, the Paparazzi': Developing a Privacy Paradigm for Digital Video
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University of Pittsburgh School of Law Scholarship@PITT LAW Articles Faculty Publications 2009 'We, the Paparazzi': Developing a Privacy Paradigm for Digital Video Jacqueline D. Lipton University of PIttsburgh School of Law, jdl103@pitt.edu Follow this and additional works at: https://scholarship.law.pitt.edu/fac_articles Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Family Law Commons, Intellectual Property Law Commons, Internet Law Commons, Law and Politics Commons, Law and Society Commons, Legislation Commons, Politics and Social Change Commons, Science and Technology Law Commons, Science and Technology Policy Commons, State and Local Government Law Commons, and the Torts Commons Recommended Citation Jacqueline D. Lipton, 'We, the Paparazzi': Developing a Privacy Paradigm for Digital Video, 95 Iowa Law Review 919 (2009). Available at: https://scholarship.law.pitt.edu/fac_articles/473 This Article is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Articles by an authorized administrator of Scholarship@PITT LAW. For more information, please contact leers@pitt.edu, shephard@pitt.edu. "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video JacquelineD. Lipton* ABSTRACT: Current digital-privacy regulation focuses predominantly on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriatecontexts or in an unflattering or embarrassinglight. As digital video technology, including inexpensive cell-phone cameras, becomes widespread in the hands of the public, the regulatoryfocus must shift. At one time a small percentage of online content, digital video is now appearing at an exponential rate. This is largely due to the growth of online social-networkingplatforms, such as YouTube and Facebook. Sharing video online has become a global phenomenon, while the lack of effective privacy protection for these images has become a global problem. Digital video poses four distinct problems for privacy, arisingfrom: decontextualization, dissemination, aggregation, and permanency of video information. While video shares some of these attributes with text, video's unique qualities necessitate separate study. This Article * Professor of Law, Associate Dean for Faculty Development and Research; Co-Director, Center for Law, Technology and the Arts; Associate Director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law, e-mail: Jacqueline.Lipton@case. edu, fax: (216) 368-2086. For helpful comments on earlier drafts of this Article, the author would like to thank Professor Andrea Matwyshyn and participants at a panel on user-generated content and privacy, "Computers, Freedom and Privacy '08" at Yale University on May 21, 2008, as well as participants at the Eighth Annual Intellectual Property Scholars' Conference at Stanford Law School on August 7-8, 2008; participants in a Faculty Colloquium at Villanova Law School on October 10, 2008; participants at a Faculty Workshop at the University of Florida Levin College of Law on October 15, 2008; and participants at the 2nd Annual Privacy Law Scholars' Conference in Berkeley on June 4-5, 2009. Additionally, thanks are due to the following people for commenting on earlier drafts of this Article: Professor A. Michael Froomkin, Professor Mark Lemley, Professor Patricia Sdnchez Abril, Professor Ruth Gordon, Professor Doris DelTosto Brogan, Professor John Gotanda, Professor Marc Blitz, Professor Hannibal Travis, Professor Diane Zimmerman, Professor Daniel Sokol, Professor Lyrissa Lidsky, Professor Elizabeth Rowe, ProfessorJon Mills, Professor MichelleJacobs, ProfessorJuan Perea, Professor Charlene Luke, Professor Neil Richards, Professor Daniel Solove, Mr. Lee Tien, Professor Orin Kerr, Professor Ian Kerr, Professor Paul Ohm, Professor Raymond Ku, Professor Danielle Citron, Professor Ann Bartow, Professor Peter Swire, Professor Eric Goldman, Professor B. Jessie Hill, Mr. Ryan Calo, Professor Marcel Leonardi, and Professor Christopher Slobogin. Thanks are also due to Josephina Manifold for her excellent research assistance. All mistakes and omissions are, of course, my own. 95 IOWA LAWREVIEW [2010] identifies a rationalefor, and critiques suggested approaches to, digital- video privacy. It argues that legal regulation, without more, is unlikely to provide appropriatesolutions. Instead, it advocatesfor a new multimodal approach, consisting of a matrix of legal rules, social norms, system architecture,market forces, public education, and nonprofit institutions. I. INTRODUCTIO N ....................................................................................... 921 II. ONLINE-VIDEO PRIVACY: GAPS IN THE EXISTING LEGAL FRAMEWORK....926 A. PROTECTING OmINE PRIVACY. GAPS IN THE LAw .............................. 929 1. C opyright Law ......................................................................... 929 2. Privacy Torts and Intentional Infliction of Emotional D istress ..................................................................................... 930 3. Defam ation .............................................................................. 933 4. Data Protection Law in the European Union ....................... 933 B. LIMITATIONS OF CONTRACTUAL PRVACYPROTECTIONS ..................... 936 III. WHY (NOT) REGULATE VIDEO PRIVACY? ................................................ 941 A. RESERVATIONSABOUT VDEO-PRIVACYREGULATION .......................... 941 B. THE SEARCH FOR A UNIFIED THEORY OFPRIVACY ............................... 942 C. REGULATING SPECIFICHARMS ........................................................... 948 D. PR!VACYAND THE FIRST AMENDMENT ................................................ 949 IV. A MULTIMODAL APPROACH TO VIDEO PRIVACY ..................................... 950 A . LEGAL R ULES .................................................................................... 953 1. The Role of Law Online ......................................................... 953 2. Lessons from Digital Copyright Law ...................................... 954 3. Lessons from Environmental Regulation .............................. 957 4. Privacy and Publicity Torts ..................................................... 959 5. Privacy Contracts and Breach-of-Confidence Actions .......... 961 a. Express and Implied Contracts............................................. 962 b. Breach of Confidence............................................................ 963 6. Legislating Codes of Conduct and Technical Standards ..... 964 B. SOCIAL NORMS ................................................................................. 965 C. M AR ETFORCES ............................................................................... 973 D. SYsmM ARCHITECTURE .................................................................... 976 E. EDUCATION ...................................................................................... 979 F INSTITUTIONS ................................................................................... 980 V . CO NCLUSIONS ......................................................................................... 982 "WE, THE PAPARAZZI" I. INTRODUCTION In my mind and in my car, we'can't rewind we've gone too far. Pictures came and broke your heart, put the blame on VTR -The Buggies, Video Killed the Radio Star1 Are we all paparazzi now? Consider the story of "dog-poop girl." Once upon a time, a passenger's dog defecated on the floor of a subway car in South Korea. While unremarkable in itself, this story quickly became an Internet sensation when the passenger refused to clean the mess. 2 Someone on the train, an anonymous face in the crowd, took photos of the woman with a cell-phone camera. These images were promptly posted on a popular Korean blog. The aim was to shame the unrepentant and socially irresponsible dog owner. 3 Ultimately, the humiliation attached to this incident resulted in a "firestorm of criticism" that caused her to quit her job.4 This story is one of a number of recent episodes illustrating how a person's privacy can be destroyed at the push of a button, using the simplest and most ubiquitous combination of digital technologies-the cell-phone camera and the Internet.5 While some may say that dog-poop girl received her just deserts for being a socially irresponsible dog owner, others may well feel that the punishment far outweighed the crime. Then there's the story of "Star Wars kid"-a Canadian teenager who filmed himself playing with a golf-ball retriever as if it were a light-saber from the Star Wars movies. Embarrassing? Yes. Socially irresponsible? No. His video was posted to the Internet without his authorization. A variety of 6 amateur video enthusiasts then adopted it on services such as YouTube. They created many popular, but extremely humiliating, mash-up videos7 of 1. THE BUGGLES, Video Killed the Radio Star, on THE AGE OF PLASTIC (Island Records 1979). 2. JONATHAN ZITrRAIN, THE FUTURE OF THE INTERNET-AND HOW TO STOP IT 211 (2008). 3. See DANIEL SOLOVE, THE FUTURE OF REPUTATION: Gossip, RUMOR, AND PRIVACY ON THE INTERNET 1-2 (2007) (noting that websites and newspapers around the world quickly picked up the story, resulting in the "public shaming and embarrassment" of the dog owner). 4. ZirrRAIN, supra note 2, at 211. 5. See id. at 99 ("One holder of a mobile phone camera can irrevocably compromise someone else's