INTERNET LAW - State Privacy Torts

State privacy laws include the torts of public disclosure of private facts, false light and false intrusion. Each state has taken a different approach to these torts and whether or not there is a right to sue for the various theories of action. The components of a negligence which all must be proven to recover in civil action are: 1. Duty: A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others; 2. Failure to conform: A failure by D to conform his conduct to this standard which can also be called carelessness. 3. Proximate cause: A sufficiently close causal link between D’s act of negligence and the harm suffered by P. 4. Actual damage: Actual damage suffered by P. (Compare this to most intentional torts, such as trespass, where P can recover nominal damages even without actual injury.) http://www.lexisnexis.com/lawschool/emanuel/web/torts/index.html The tort of the public disclosure of private facts can hold civil liability. The elements for this tort include The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities. This protection includes the public disclosure of some kinds of public facts. Communication of this information to the public or to a sufficient amount of people that it is likely to reach the general public may prove to be valid grounds for a lawsuit. The argument that it is true information does not provide a valid defense to this tort unlike the defamation tort. The tort of false light also can hold civil liability. This tort involves the situation where a person wrongfully attributes views or characteristics to a person in ways that damage a person’s reputation. False light can be differentiated from the tort of defamation, because an action for placing someone in a false light can include statements that would not be considered defamatory. However, the wrongfully attributed facts must be highly offensive to a reasonable person in order to become the basis for a false light lawsuit. However the issues of newsworthiness and consent may apply to false light lawsuits as potential defenses. However, if the plaintiff is a public figure, then an action for false light can be made only if they can show that D knew the portrayal was false, or acted in reckless disregard of whether it was which is termed as “actual malice.” The case of New York Times v. Sullivan applies to false light actions by public figures. [Time, Inc. v. Hill] However, if a figure is private then they probably will not have to meet this "actual malice" standard. Lastly, the tort of wrongful intrusion can also occur on the Internet. A civil action can be brought when a person has been intruded on in their life whereas they had a reasonable expectation of freedom from this type of intrusion. However, the intrusion does not need to be a physical trespass. Reading someone’s electronic mail can involve wrongful intrusion or gaining access to another’s data or files could be considered to be actionable. Does the information on the public disclosure of facts have to be private in nature or can it be known already? There are limitations that are involved under the tort of public disclosure of private facts. Under this tort, there are certain conditions that must be met. The facts that are being disclosed must be private in nature. In order to determine if these facts are indeed private, these facts must not have been the subject of the previous publicity and may not already become matters of common knowledge. Additionally, public activities cannot be the basis for this type of lawsuit. There is another limitation on this tort which includes that the disclosure of these facts is made in the public interest or if the person involved is a public figure, there may be a potential defense to this action. However, the defense of consent can be argued. If the person that the private facts relate to had given their consent to this disclosure then no cause of action can arise. Even if the person revealed this information in strict confidence that this information should not be shared with others, there may still be a breach of confidentiality but this action would not qualify under the public disclosure of private facts. The rationale behind this policy is that there cannot be a cause of action for making these types of facts available to the public. Can the use of digitized images also cause liability? The fact that a widespread disclosure can involve spoken words can involve a message board or disseminating an electronic mail or posting on a website. However, the use of digitized images can also pose liability for example if they involve a compromising photo that has been disseminated through whatever means whether it be a bulletin board or through an electronic mail attachment. Can a system operator or an Internet Service Provider (ISP) face liability under the tort of wrongful intrusion of a person’s life? A sys op or an ISP can face civil liability if they “negligently” make it possible for someone to be able to intrude on another’s privacy including gaining access to their data or electronic mail. System operators that give other access levels may face liability if they are negligently performing their duties. Negligence occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other. However, unlike an intentional tort, under the theory of negligence, the tortfeasor’s mental state is irrelevant. The conduct is the necessary measure of the outcome.