Vol. 11, No. 6, Pg. 36. The Right To Be Let Alone in the 21st Century.

• Author: By Robert A. Muckenfuss

South Carolina Lawyer

2000.

Vol. 11, No. 6, Pg. 36.

The Right To Be Let Alone in the 21st Century

36The Right "To Be Let Alone" in the 21st CenturyBy Robert A. MuckenfussWhat would you do if you discovered that someone had posted a private fact about you on his or her personal Web site or homepage? Or what if someone e-mailed an embarrassing picture of you to your friends? These scenarios are more fact than fiction and provide a glimpse at the challenges of privacy in the 21st century.

Not since the tort of invasion of privacy was established near the dawn of the last century has privacy become ever more threatened than it has with the dawn of the 21st century. Society's attention is increasingly centered around the Internet and its seemingly endless stream of information. On this information superhighway, both private and public facts can be disseminated globally with a stroke of a key. And while talk of government regulation of the Internet has encountered stiff resistance under First Amendment challenges, privacy torts have quietly resurfaced. See John A. Jurata, Jr., The Tort That Refuses To Go Away: The Subtle Reemergence of Public Disclosure of Private Facts, 36 San Diego L. Rev. 489 (1999).

In Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 514 S.E.2d 126 (1999), the South Carolina Supreme Court laid the foundation for what might be a frontline defense for privacy in this century. The Court in Swinton Creek elaborated on the tort of invasion of privacy, specifically the "publicizing of private facts" branch of the tort. In doing

37so, the Court embraced the philosophy of the tort's inventors, Samuel D. Warren and Louis D. Brandeis. Warren and Brandeis developed their privacy theory in a Harvard Law Review article written in 1890. See Warren and Brandeis, The Right To Privacy, 4 Harv. L. Rev. 193 (1890). Though most lawyers today have little use for 19th century law review articles, the importance of the Warren-Brandeis privacy formulation transcends time and cannot be overlooked.

"PUBLIC DISCLOSURE OF PRIVATE FACTS" UNDER SWINTON CREEK

The South Carolina Supreme Court, in 1940, for the first time recognized the tort of invasion of privacy when it stated: "the right to privacy is correctly defined . . . as the right to be let alone; the right of a person to be free from unwarranted publicity." Holloman v. Life Ins. Co. of Virginia, 192 S.C. 454, 458, 7 S.E.2d 169, 171 (1940) (emphasis added). Later, in Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956), the Court specified three causes of action for invasion of privacy:

(1) The unwarranted appropriation or exploitation of one's personality, (2) the publicizing of one's private affairs with which the public has no legitimate concern, and (3) the wrongful intrusion into one's private activities, in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.

95 S.E.2d at 608.

Each of these causes of action will be referred to as Type I, Type II and Type III invasion of privacy respectively. Type II invasion of privacy is the focus of this article.

The elements of Type II invasion of privacy consist of the following: publicizing, absent any waiver or privilege, private matters in which the public has no legitimate concern, so as to bring shame or humiliation to a person of ordinary sensibilities. See Meetze, supra. In Swinton Creek, the Court clarified the first element-publicizing.

Swinton Creek involved an attempt by a young entrepreneur to obtain a bank loan to purchase the Swinton Creek Nursery. In an effort to assess the collateral, the bank sent an agent to the nursery to speak with the owner and examine the operation. After...