USA – NEW YORK Trends and Developments Contributed by: Alan Behr, Phillips Nizer LLP
Time Exposure: the Evolution of Privacy in New York Photography Cases The United States of America is unique in its approach to privacy in key ways. Because of its federal sys - tem, whatever elements of the law are not expressly made national by the Constitution or by constitution - ally permitted federal pre-emption will remain the sub - ject solely of the states and territories. The second component is cultural – a question that itself can be divided for convenience into two parts: the first is the American passion for individual liberty, something that again is embedded in the Constitution and, indeed, in the very Declaration of Independence (1776) by which the nascent country sought to define itself as an autonomous nation; the other leg of that cultural background is, sometimes paradoxically, the Ameri - can embrace of consumerism. Just as the libertar - ian ideals of the foundation of the American republic work to guard against governmental authorities know - ing too much about the citizenry, the citizens will vol - untarily give away personally identifiable information to a high degree in exchange for desired commercial goods and services. The American approach to privacy therefore requires an understanding of: • who is asking for it; • what might be in it for the person making the dis - closure, to agree to hand it over; and • did someone or could someone make money from what happened? Unlike many legal systems that recognise privacy as a general personal right, in the United States the domain of privacy law is uniquely fragmented, with privacy protections mainly developed by the states, often with statutes drawn for restricted purposes and under narrowly decided case precedent. That becomes particularly apparent when reviewing the rights and responsibilities of parties seeking to publish, display and commercially exploit images bearing presenta - tions of individuals. Rather than granting the subjects of photographs broad control over how their images are captured or disseminated, state laws are typically crafted to protect privacy in clearly defined circum - stances – most notably, in recent years, in the collec -
tion and use of information provided by the users of online facilities. If a core concept had to be gleaned from this, it is the overriding notion (or the “umbrella concept”) as to whether the person in a photograph who claims an invasion of privacy had, in the moment of the asserted intrusion, a “reasonable expectation of privacy”. That is, would the individual fairly believe that a setting suf - ficiently sequestered a person from the eyes and ears of others as to take comfort that whatever happened in that setting would not be perceived and transmitted, published or displayed? If a man should move through the living room of his home, for instance, would he have a reasonable expectation that a neighbour would not have recorded that with a telephoto lens on a cam - era aimed through the window of the building oppo - site? If he should be photographed walking through a public square, would he have a case against the display of a print in the name of fine art? More on both of those examples follows below. New York State was the first jurisdiction to initiate what could be called the contemporary law of pri - vacy. There was a renowned intellectual predicate, as happens every once in a while in American law. It appeared in an 1890 article by Samuel D Warren and Louis D Brandeis (the future associate justice of the United States Supreme Court) entitled “The Right to Privacy”. The timing was fortuitous, with the arti - cle being published shortly after the Kodak company launched the first true consumer camera (from New York State, in fact) with the famous marketing slogan “You Press the Button, We Do the Rest”, and six years before The New York Times published its first photo - graph. It was also the period of “yellow journalism” – scandal-mongering prose published by journalists to boost circulation, all too often at the expense of reputations and even the truth. The authors described privacy as a protection of the “inviolate personality” and famously framed it as the “right to be let alone”. Their conception of privacy emphasised emotional well-being rather than redress for economic dam - age. They argued that existing legal doctrines, such as property and contract law (both being grounded in commercial law, of course), were inadequate to address the potential personal harms caused by the publication of personal images and information.
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