Fragile Merchandise: A Comparative Analysis of the Privacy Rights for Public Figures

• Published date: 01 March 2012
• Author: Scott. J. Shackelford
• Date: 01 March 2012
• DOI: http://doi.org/10.1111/j.1744-1714.2011.01129.x

Fragile Merchandise: A Comparative

Analysis of the Privacy Rights for

Public Figures

Scott. J. Shackelford*

INTRODUCTION

We [are] dealing with that most fragile of merchandise, the facts about another

human being. . . . Privacy . . . involves a collision between the First Amend-

ment, freedom of the press, and the Fourth and Fourteenth amendments.1

Should a politician’s sex life be protected under privacy law? Is it in the

public interest? How far does freedom of expression extend? Should it

include the right to report on a mother of octuplets2or Tiger Woods’

marital problems?3Does a heroic firefighter deserve to have a long-

standing drug addiction exposed?4Answers to these questions depend on

*Assistant Professor of Business Law and Ethics, Indiana University, Kelley School of Busi-

ness; Ph.D. candidate in international relations, University of Cambridge; J.D., Stanford Law

School.

An early draft of this article received a 2009 Stanford Law School Steven Block Civil

Liberties Award for Writing on Civil Rights. I thank Professors Lawrence Friedman and

Helen Stacy for their help and support with earlier drafts as well as the ABLJ editorial staff,

including Jamie Prenkert and Marisa Anne Pagnattaro, for their extraordinary profession-

alism and diligence.

1Richard Stolley, Founder and Managing Editor of People Magazine, Speech at National

Writers’ Workshop, Hartford, Conn. (Apr. 1, 1995).

2See, e.g.,Octuplets Mom Spurning Offer of Free Care? CBS NEWS (Mar. 26, 2009, 9:03 AM),

http://www.cbsnews.com/stories/2009/02/20/earlyshow/main4815110.shtml (reporting about

a mother of octuplets who allegedly refused private care for her children, instead relying on

government aid).

3See, e.g., Daniel J. Solove, Privacy Should Be Protected, Comment to Does Tiger Woods Have a

Right to Privacy? N.Y. TIMES (Dec. 3, 2009, 5:50 PM), http://roomfordebate.blogs.nytimes.com/

2009/12/03/does-tiger-woods-have-a-right-to-privacy/ (noting that English law bars the pub-

lication of information that the parties consider confidential).

4See David Andreatta, Coming down from Hero High: Instant Celebrity Can Turn to Anguish,NEW

ORLEANS TIMES-PICAYUNE, Mar. 21, 2002, at 18 (opening an article with details of a firefighter’s

depression and eventual suicide).

American Business Law Journal

Volume 49, Issue 1, 125–208, Spring 2012

© 2012 The Author

American Business Law Journal © 2012 Academy of Legal Studies in Business

125

the legal system in which one resides, though many jurisdictions them-

selves often give contradictory answers. Once rather parochial under-

standings of privacy are now being reinterpreted in the face of two

contemporary forces. The first is the emergence of both international

treaties5and national laws6that have increasingly recognized a right to

privacy, which is often compromised in the name of e-commerce or secu-

rity.7Second is an increase in privacy violations, facilitated by new

advanced surveillance technologies, which are feeding the appetites of

people who want to know more about public figures of all types.8As a

result of these factors, privacy rights are being challenged in legal systems

around the world, often with varying results both between and within

jurisdictions. In this article, I argue that, due to advancing technology

facilitating the public’s fascination with celebrity, jurisdictions in the

United States and Europe are reinterpreting privacy rights leading to

divergent definitions of both public figures and the public interest. This, in

turn, is adversely impacting personal privacy in the United States, as well

as the legal environment of newspapers, in particular, and multinational

businesses, such as Google, generally. I analyze potential reasons for this

divergence, including the United States’ deep commitment to free speech,

different understandings of the public interest, and, most critically, varying

legal cultures.

Over a century after Samuel Warren and Louis Brandeis elucidated

the legal right to privacy9and subsequently garnered the attention of U.S.

5See, e.g., European Convention for the Protection of Human Rights and Fundamental

Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention] (pro-

viding certain privacy rights “necessary in a democratic society”).

6See, e.g.,Human Rights Act 2004 (ACT) 12(a) (Austl.) (“Everyone has the right . . . not to

have his or her privacy, family, home or correspondence interfered with unlawfully or

arbitrarily . . . .”); Human Rights Act, (1988) art. 8, 7 HALS.STAT. (4th ed.) 528 (Eng.) (“Right

to respect for private and family life”). But cf. Anthony Lester, Parliamentary Scrutiny of

Legislation Under the Human Rights Act 1998,33V

ICTORIA U. WELLINGTON L. REV. 1, 3 (2002)

(noting that the New Zealand Bill of Rights Act 1990 contains no reference to privacy).

7See, e.g.,Whose Life Is It Anyway? ECONOMIST, Mar. 9, 2002, at 58; Edward Wyatt & Tanzina

Vega, Stage Set for Showdown on Online Privacy, N.Y. TIMES, Nov. 10, 2010, at B1 (examining

privacy rights related to tracking of Internet usage).

8See A Chronology of Data Breaches,PRIVACY RTS.CLEARINGHOUSE, http://www.privacyrights.

org/ar/ChronDataBreaches.htm#2009 (last visited Aug. 9, 2011).

9See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy,4HARV.L.REV. 193, 195

(1890) (calling for the common law to protect the privacy of the individual).

126 Vol. 49 / American Business Law Journal

scholars and jurists, privacy has become central to U.S. law. Yet defining

privacy in a comparative cultural context is exceedingly difficult.10 To the

extent that any agreement has been forthcoming, privacy is generally that

which is asserted by individuals against the demands of a curious and

intrusive society.11 As sociologist Robert Merton argues, without privacy,

“the pressure to live up to the details of all (and often conflicting) social

norms would become literally unbearable.”12 In this conceptualization, the

main enemy of privacy is community, especially a curious community

practicing robust freedom of expression. The more invasive the commu-

nity norms and the more advanced the technology, the less privacy may

flourish.

Advancing technology is causing societies around the world to

rethink the bounds of privacy rights. For example, technology has made it

easier than ever to breach the increasingly sheer veil of privacy—whether

by media, private investigation, workplace monitoring, or surveillance—

leading to a regulatory showdown in the United States.13 Simultaneously,

the very definition of privacy is being revised, often in conflicting fashions.

In an era in which millions of people are willing to sacrifice their personal

privacy online by participating in the explosion in social networking,

Facebook has faced a wave of criticism from its more than 800 million users

and backed down from proposed changes to its user agreement that would

have made it more difficult to protect private information.14 Other Inter-

net users have also faced privacy violations online, such as when a federal

district court in New York ordered YouTube to hand over information

about its clients’ viewing habits.15 While some individuals wish to promote

their freedom of expression even at the expense of their privacy, many

10See infra Part I.

11See generally Robert C. Post, The Social Foundationsof Privacy: Community and Self in the Common

Law Tort,77CALIF.L.REV. 957 (1989) (stating that the common law tort of invasion of privacy

is predicated by an assumption of the personal harm that comes from violating the social

norm).

12ROBERT K. MERTON,SOCIAL THEORY AND SOCIAL STRUCTURE 429 (1968); see Post, supra note 11,

at 958.

13See, e.g., Wyatt & Tanzina, supra note 7.

14Brad Stone & Brian Stelter, Facebook Withdraws Changes in Data Use, N.Y. TIMES, Feb. 19,

2009, at B1.

15Google Must Divulge YouTube Log, BBC NEWS (July 3, 2008, 21:19 GMT), http://

news.bbc.co.uk/2/hi/technology/7488009.stm.

2012 / Fragile Merchandise 127