Category: Privacy (Gossip & Shaming)


The Slow Demise of Defamation and the Privacy Torts

The ABA Journal reports that the number of libel suits has been steadily dropping in the United States:

During his 30 years as a lawyer for the New York Times Co., George Freeman says, the “Gray Lady” faced four to five new libel suits per year, on average, and has had maybe eight pending against it at any one time. But that’s all changed.

Currently the New York Times is facing no libel suits, and the parent company faces just one in the U.S. “There’s been a fairly steep decline” in the last few years, he says. “The real question is whether it’s cyclical, as sometimes happens, although never quite to this degree, or whether there are other factors at play.”

The Times is definitely not alone, and the trend appears to have rolled out over two or three decades—not years—according to research from the Media Law Resource Center. The number of trials of libel, privacy and related claims against the media fell from 266 in the ’80s to 192 in the ’90s to 124 in the 2000s. In 2009, only nine such trials were held.

Why is this happening?  Is it because there’s much less defamation or invasion of privacy today?  I strongly doubt that’s the reason.  Instead, I can think of several reasons for the decline in defamation and privacy trials:

1. Defamation lawsuits are very hard to win.  Only about 13% are successful.  It is thus hard to find lawyers who will take the case.

2. Invasion of privacy lawsuits are also hard to win.  The privacy torts are fossilized into the forms they were in circa 1960, and they haven’t evolved to address modern privacy problems.  Moreover, courts cling to antiquated notions of privacy that make it hard for plaintiffs to prevail in a data-soaked world.

3. Focusing on trials might be the wrong thing to focus on.  Trials themselves are becoming a rarity.  Our legal system is overrun with costs, making it an extremely inefficient mechanism to resolve disputes.  It is ridiculous that in many cases, the costs of litigating the suit can be greater than the actual money at stake in the lawsuit.  Cases get settled just to avoid these costs.

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Privacy and Youth

A new poll by Common Sense Media reveals some interesting data about privacy and youth.  The poll was conducted by Zogby International:

* 75% of parents “say that social networks aren’t doing a good job of protecting kids’ online privacy.”

* 92% of parents “are concerned that kids share too much information online.”

* 85% of parents are “more concerned about online privacy than they were five years ago.”

In addition to parents, the poll surveyed teens and found:

* 85% of teens “say that online search engines and social networking services should be required to get permission before using personal information to market products to them.”

* 81% of teens “say that search engines and online social networking sites should not be able to share their physical location with other companies before they have given specific authorization.”

* 79% of teens “think their friends share too much personal information online.”

These findings cast further doubt on the oft-heard statement that youth just don’t care about privacy.  Earlier, I blogged about a study by by Chris Hoofnagle, Jennifer King, Su Li, and Joseph Turow that showed that the attitudes about privacy of youths and adults didn’t diverge by much.


The Clementi Suicide and Invasion of Privacy

The media has been reporting on the tragic suicide of Tyler Clementi, a student at Rutgers University.  From CNN:

On the evening of September 19, Rutgers University student Dharun Ravi is believed to have sent a message by Twitter about his roommate, Tyler Clementi.

“Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.”

Ravi, 18, of Plainsboro, New Jersey, surreptitiously placed the camera in their dorm room and broadcast video of Clementi’s sexual encounter on the internet, the Middlesex County prosecutor’s office said. Ravi tried to use the webcam again on two days later, on September 21.

“Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it’s happening again,” Ravi is believed to have tweeted.

The next day, Clementi was dead

New Jersey authorities said he apparently committed suicide by jumping off the George Washington Bridge, which spans the Hudson River between New Jersey and New York. A law enforcement source told CNN that Clementi’s wallet and cell phone were found on the bridge.

Two students, Dharun Ravi and Molly Wei, have been charged with criminal invasion of privacy charges.  The law in New Jersey provides:

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What Will Be the Defining Idea of the Coming Decade?

For the 10th-anniversary issue of The Chronicle of Higher Education‘s The Chronicle Review, the editors asked several scholars for answers to the question: “What will be the defining idea of the coming decade, and why?”

Here’s the list of the people they asked: Jaron Lanier, Daniel J. Solove, Peter Singer, Elaine Howard Ecklund, Gwenda Kaczor, Jonathan Haidt, Parker J. Palmer, Camille Paglia, Yi-Fu Tuan, Michael Glenwood Gibbs, Daniel J. Cohen, James Elkins, Mary Beard, Linda K. Kerber, Geoffrey Moss, Henry Petroski, Alondra Nelson, Brian Knutson, Saleem H. Ali, Steve Brodner, Stephon H.S. Alexander, Steven Landsburg, and Pat Shipman.

You can find all the answers here.

My answer is a short essay called Dizzied by Data. It begins:

In his short story “The Library of Babel,” Jorge Luis Borges imagined an infinitely large library containing all books. Although the library was wondrous, people had no way of finding the right book. Much like Borges’s library, the information age has presented us with a dizzying amount of data. The past decade witnessed the rise of the interactive Internet—Web 2.0—where people not only consume information but also add to it. Millions of people started blogging; social-networking sites like Facebook amassed half a billion users; and sites like Wikipedia enticed people to collaborate and share their expertise.

To cope with all this data, we created new ways to find it and analyze it. Search engines like Google revolutionized our ability to locate information, and data-mining technologies were developed to detect patterns and make judgments about people’s interests and behavior.

Over the next decade, the ability to search for information and to analyze it will mature dramatically. . . .

For the rest, click here.


Using Transparency As A Mask

As mankind deploys increasing numbers of sensors, and makes more sense of this data, more of our secrets are revealed.  In a world of greater transparency, will you be able to be you?  Or will you feel obligated to mask who you are, drawn to the safety of the center of the bell curve?

Will a more transparent society make you average?

Imagine for a moment that video feeds from street surveillance cameras are the blue puzzle pieces, your path through life lit up by your cell phone location as the green puzzle pieces and your Facebook social network as the yellow puzzle pieces.  Flicker the brown puzzle pieces and Twitter, orange puzzle pieces.  And maybe one day your energy consuming devices in your home may be spewing out the magenta puzzle pieces. As increasing volume and range of data converges, a colorful, highly revealing picture of our lives will unfold, with or without our knowledge or permission.  Traditional physical sensors like credit card and license plate readers are one thing.  The human is the sensor, thanks to Web 2.0, is altogether a different thing.

Unlike two decades ago, humans are now creating huge volumes of extraordinarily useful data as they self-annotate their relationships and yours, their photographs and yours, their thoughts and their thoughts about you … and more.

With more data, comes better understanding and prediction.  The convergence of data might reveal your “discreet” rendezvous or the fact you are no longer on speaking terms your best friend.  No longer secret is your visit to the porn store and the subsequent change in your home’s late night energy profile, another telling story about who you are … again out of the bag, and little you can do about it.  Pity … you thought that all of this information was secret.

How will mankind respond? Will people feel forced to modify their behavior towards normal only because they fear others may discover their intimate personal affairs?  This is what Julie Cohen and Neil Richards have worried about – the “chilling effect.” Read More

Dystopian Fiction Intersects with the Academy

Gary Shteyngart’s new novel, Super Sad True Love Story, looks to be every bit as good as Absurdistan. It’s a dystopian, futuristic work. In a radio show, Shteyngart was asked how far in the future the novel was set, and (without missing a beat) he replied “next Tuesday.” Consider the following from Michiko Kakutani’s glowing review of the book (and the links to various legal and policy thinkers), and judge for yourself:

It’s a novel that gives us a cutting comic portrait of a futuristic America, nearly ungovernable and perched on the abyss of fiscal collapse. . . .“Super Sad” takes place in the near future, and Mr. Shteyngart has extrapolated every toxic development already at large in America to farcical extremes. . . . Books are regarded as a distasteful, papery-smelling anachronism by young people who know only how to text-scan for data, and privacy has become a relic of the past.

Everyone carries around a device called an äppärät, which can live-stream its owner’s thoughts and conversations, and broadcast their “hotness” quotient to others. People are obsessed with their health — Lenny works as a Life Lovers Outreach Coordinator (Grade G) for a firm that specializes in life extension — and shopping is the favorite pastime of anyone with money. . . .

The United States is at war in Venezuela, and its national debt has soared to the point where the Chinese are threatening to pull the plug. There are National Guard checkpoints around New York, and riots in the city’s parks.

Shteyngart mentioned Ray Kurzweil and Aubrey de Grey in an interview as influences on the book’s futurism. I hope some of the ideas in the links above percolated in as well.


Contracts and Privacy

Sunlight Disinfects, Unless You Wear Shades

What is the relationship between public policy and contract damages?  A few days back, I blogged about the curious case of Canadian Gabriella Nagy.  Nagy, as you may recall, has sued her cellphone company Rogers Communications for $600,000 (Canadian), alleging “invasion of privacy and breach of contract.”  According to Nagy, Rogers consolidated her cellphone bill into a global family statement without notifying her.  This consolidation led her spouse to see she was calling another man with inordinate frequency, and she was forced to confess an affair.  The marriage dissolved, and Nagy blamed the cellphone company.

I think the breach of contract lawsuit, if filed in an American court applying fairly ordinary domestic contract principles, would be a loser.  Here are some reasons why.

The common law generally dislikes punishing breach with liability or damages when the inevitable consequence of performance is to motivate socially wrongful conduct, and nonperformance to retard it.  Though famously public policy is an “unruly horse,” it is settled law that the morality of the underlying conduct to be protected bears a significant relationship on the ability to seek relief at law (whether in terms of liability or damages.)  Consider a lovely case I teach in the first year, Shaheen v. Knight, 11 Pa. & C.2d 41 (1957).  In Shaheen, plaintiff contracted with defendant for guaranteed sterility following a vasectomy. When a child resulted, the snipped but still-virile  Shaheen sued for breach.  Though the vasectomy contract was not itself void – since family planning and private control are social goods- the court believed that to allow damages “for the normal birth of a normal child is foreign to the universal public sentiment of the people.” That is, the availability of damages turns on whether the plaintiff has been subjected to a harm (executory or otherwise) that society seeks to validate as legitimate.  The easy example is a contract between A and B to commit a crime or violate a statute.  Even if the contract weren’t void on its face, you can’t get damages (nor, often, restitution).  A little further down the line are transactions over the means to unlawful conduct.  Imagine a seller and a buyer enter into a sales contract, where the buyer is going to promptly relabel the goods for fraudulent resale. Seller, learning of the plan, refuses to deliver and the buyer sues the seller, seeking the difference in value between what he expected (delivery price) and what he got (presumably, market price to cover).  Can the buyer recover this remedy? Generally not, unless the seller knew of the improper purpose at the time of the contract, in which case the seller might have to disgorge something.

What about cases where A and B contract not to disclose some fact X, and the nondisclosure will create harm for innocent third parties.  These contracts are often enforced (every confidentiality clause probably shelters some fact with the potential for third party harm.)  But the degree to which the nonbreaching party can recover ought to turn on what’s being kept secret: if the secret is particularly socially harmful (oozing toxic sludge!) we might believe that the hiding, non-breaching, party doesn’t get to recover for breach.  Thus, you sometimes see cases where fraud-revealing employees are protected from consequences of nondisclosure agreements by (effectively) common law whistleblower doctrines.

Where the third-party harm relates to marriage, the law appears to be more categorical.  Public policy concerns about contracting and third party harm are strongest in agreements touching on issues of family life and infidelity.  This is evidenced (of course) by the skepticism that common law courts traditionally had toward premarital contracts, especially those that purported to limit post-divorce support obligations.  The theory was that such provisions encouraged divorce, and thus were not contracts that society wanted.  See generally Farnsworth’s Fourth Edition, § 5.4.  So, for example, imagine that two parties made a private contract to hide evidence of adultery from their respective spouses.  One party, overcome with conscience, decides to fess up. The “nonbreaching” adulterous party sues the “breaching” adulterous party, seeking benefit-of-the-bargain damages.  I think there little chance that the non-breaching adulterer could recover any damages in court. Cf. Jim Lindgren, Unraveling the Paradox of Blackmail, 84 Colum. L. Rev. 670, 681 n.58 (1984) (“[N]either a threat to do an immoral act (expose damaging information) nor an offer to breach a public duty (hide criminality) can be the subject of a legal contract.”)

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The Star Wars Kid Strikes Back

In The Future of Reputation, I wrote about the Star Wars Kid, the teenager who made a video of himself pretending to fight with a lightsaber.  The video was uploaded to the Web without his consent, and he was ridiculed around the world, his video being downloaded tens of millions of times.

For years, nobody knew what happened to him.  A news article now reports:

Ghyslain Raza – or to the internet,Star Wars Kid – didn’t feel famous, or funny. He felt harassed, the victim of the most visible bullying in history. Ghyslain dropped out of his Quebec high school, was diagnosed with depression, and checked into a psychiatric ward for children.

Ghyslain and his parents would later sue the families of the three classmates who leaked the video in 2003, for around $250,000. According to the lawsuit, which resulted in a settlement, “Ghyslain had to endure, and still endures today, harassment and derision from his high-school mates and the public at large.”

But after eight years of laughs at his expense – and a few campaigns in his defense – Ghyslain is back. Now in his early 20s, he’s reemerged as the president of the Patrimoine Trois-Rivières, a conservation society that aims to preserve the cultural heritage of his hometown of Trois-Rivières.

Revenge of the Sith this isn’t, but he’s putting his litigious experience to some use, getting his law degree at McGill University in Montreal.

Hat tip: Josh Blackman