SOCIAL MEDIA AND THE RIGHT TO PRIVACY

The use of social media seems to be growing exponentially.  Facebook, twitter and other sites have become ubiquitous in the lives of most Americans.  Certain sites have a more specifically defined focus.  The use of social media in any context, however, contains risk.  The recent scandal concerning the hacking of the Ashley Madison web site is one example.  Every citizen has a right to privacy.  The advent of social media, however, has resulted in the law related to the right to privacy being in a state of flux.

The right to privacy can be defined as the right of an individual to be free from unwanted publicity, from having their private affairs publicized, or the unwanted and wrongful intrusion into a person’s private activities in such a manner as to cause outrage, mental suffering, shame or humiliation.  Acts which might arise to a violation of the right to privacy can include an intrusion upon someone’s physical solitude, publicizing a person’s private business or affairs in a way that violates ordinary decency, putting a person in a false light or the taking of some aspect of a person’s personality.  A violation of the right to privacy is actionable at law, meaning that it will support a civil lawsuit.

There is a distinction between a violation of the right to privacy and defamation of character.  Defamation occurs when someone publishes false information about another person which causes shame, contumely or disgrace.  A violation of the right to privacy can occur even is what is being published is true.  Under the law, the word “publish” simply means to state or disseminate the information.  An example of this would be for someone to post something on the internet about someone else’s private business which would cause that person to be hurt, embarrassed or humiliated.

When someone becomes a public figure, they can lose their right to privacy.  Public officials, politicians and celebrities lose the right to privacy but only with regard to matters which are newsworthy.  A person can also waive their right to privacy by making their private business public.  If you put something on your Facebook page you have made it public.  Other internet activities, however, may not waive a person’s right to privacy.  The victims of the Ashley Madison hack, for example, may have a viable cause of action for violation of their right to privacy against the hackers, if it can ever be determined who that is.

Some courts have held that the right to privacy does not exist with respect to pictures posted on a social networking site.  And once posted on-line, this private information may be subject to discovery in litigation, even if it was subsequently removed.  The right to obtain social media content during litigation has resulted in a conflict between the right to privacy and the right to conduct broad discovery in a lawsuit.  Therefore, be careful what you post on your Facebook page.

There are also some practical limitations of pursuing a lawsuit for a violation of the right to privacy.  Hackers do not make their identities public.  If they are sophisticated enough to hack a secure website they are probably smart enough to avoid detection.  And even if they slip up and get caught, they may not have assets from which a judgment could ultimately be recovered.  There would certainly be no insurance coverage for such wrongful acts.

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