Jacqueline Lipton is a Professor of Law at Case Western Reserve University. She is Co-Director for the Center of Law, Technology, and the Arts, and the Associate Director of the Frederick K Cox International Law Center. Professor Lipton is also an IP Osgoode Research Affiliate.
As Facebook welcomes its 200 millionth active user, now is a good time to consider some of the challenges posed to our society by the exponential rise of ubiquitous cellphone cameras and social networking websites, particularly with respect to personal privacy. The large scale peer-to-peer sharing of video and multi-media files on services like Facebook and YouTube creates challenges for privacy regulation that reach beyond the scope of current privacy laws. While existing privacy and data protection laws focus on unauthorized gathering and dissemination of personal data, they mainly focus on text records. They do not distinguish between harms arising from the unbridled collection, aggregation, and dissemination of, say, consumer spending profiles or health records in text format as compared with candid video and multi-media files capturing people's activities in their everyday lives. Today's "net generation" is growing up in a society where everything they do is fair game. Drunken parties, and intimate moments with partners may be captured on video and posted to YouTube for all to see.
Although it is not often articulated in case law or literature, harms caused to individuals by loss of privacy in relation to candid video files can be quite different in nature from harms that may be caused by unauthorized dealings with text-based personal profiles. Video-based harms may relate to general embarrassment or humiliation, loss of employment, general harm to reputation, or simply feeling constrained in life because of the awareness that everything we do might be captured on video and posted online for the world to see. Privacy law is not currently targeted at these kinds of harms, relying as it does on a clear public/private distinction, which is now breaking down in the online video context, and usually requiring a concrete showing of economic harm which is often absent in these kinds of situations.
The four privacy torts in the United States, for example, deal with: offensive physical intrusion into another's seclusion; commercial appropriation of another's name or likeness; public disclosure of private facts if the disclosure would be highly offensive to the subject and is not of legitimate public concern; and, false light publicity. In the online social networking context, it is usually difficult, if not impossible, to establish the requisite degree of offense or intrusion when photographs and videos posted online are merely embarrassing or humiliating. Showing a picture of someone being unfaithful to their partner, or of drinking and smoking, or even simply being intimate with a good friend may well affect an individual's reputation. However, such images would unlikely rise to the level of offense or intrusion required for the privacy torts. Such images also would be unlikely to support a false light publicity claim. They would also generally not be distributed for commercial profits so would not support a misappropriation claim. Thus, there are few legal options for victims of unauthorized online disseminations of video and multi-media files depicting private moments.
While there has been much academic debate in this new millennium about better protecting privacy in an increasingly online and global world, the discourse still tends to focus on issues such as protecting the privacy of text-based health or financial records in the hands of health care providers, financial institutions, and government agencies. Little attention has yet been paid to privacy problems arising from the exponentially growing popularity of online social networking, particularly with respect to video and multi-media files shared over such services. Now is the time to start thinking about protection of individual privacy from peer-based incursions into each other's lives. In a recent article, I examine the gaps in the current legal system relating to online video privacy in the Facebook generation, and suggest the development of a multi-modal approach to online video privacy. This approach incorporates aspects of a number of regulatory modalities including legal rules, market forces, emerging social norms, system architecture, public education, and non-profit institutions.