Many Americans are able to go online, enter their address into Google and zoom-in on the ensuing map so closely that they can see an image of their own home. However, few Americans have asked whether Google is invading anyone’s privacy by providing this capability.
In 2010, that question was proposed to the United States Court of Appeals for the Third Circuit. Boring v. Google Inc., 362 Fed. Appx. 273 (3d Cir. Pa. 2010). In 2008, a couple residing in Pennsylvania (“the Borings”) sued Google, claiming that the company’s “Street View” feature on Google Maps invaded their privacy. The Street View program allows users to see panoramic views of locations throughout the United States. To collect the images, Google attaches panoramic digital cameras to passenger cars and drives around cities photographing areas along streets and roads. Individuals are able to report and request the removal of inappropriate images they find on Street View.
The Borings, who live on a private road, claimed that their privacy interest was disregarded by Google when the company took photos of their property and made those photos available to the public. In addition to alleging that Google invaded their privacy, the Borings also asserted claims for trespass, injunctive relief, negligence and conversion. In February 2009, the United States District Court for the Western District of Pennsylvania granted Google’s motion to dismiss all of the Borings’ claims. The plaintiffs appealed.
Under Pennsylvania law, there are four tort actions for invasion of privacy:
1) unreasonable intrusion upon the seclusion of another;
2) appropriation of another’s name or likeness;
3) unreasonable publicity given to another’s private life; and
4) publicity that unreasonably places the other in a false light before the public.
Burger v. Blair Med. Assocs., Inc.¸ 600 Pa. 194, 964 A.2d 374, 367-77 (Pa. 2009).
The Court followed the District Court’s interpretation of the Borings’ complaint as asserting claims for intrusion upon seclusion and publicity to private life. Plaintiffs stating a claim for intrusion upon seclusion must allege conduct that:
1) demonstrates an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and
2) avers sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.
Pro Golf Mtg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (Pa. 2002).
The Court upheld the District Court’s decision and determined that the Borings’ claim for intrusion upon seclusion failed because the alleged conduct would not be highly offensive to a person of ordinary sensibilities. Boring at 280. “No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there.” Id. at 279. The Court also referred to an example included in the Restatement (Second) of Torts that “knocking on the door of a private residence [is] an example of conduct that would not be highly offensive to a person of ordinary sensibilities.” Id. The Court reasoned that Google’s actions of photographing an external view of the Borings’ home was arguably less intrusive than knocking on a door. “The existence of that image…does not in itself rise to a level of an intrusion that could reasonably be called highly offensive.” Id.
The Court also agreed with the District Court’s decision that the Borings’ claim of publicizing private life failed. To state such a claim, a plaintiff must allege that the matter being publicized is:
2) given to private facts
3) which would be highly offensive to a reasonable person, and
4) is not something that is of legitimate concern to the public.
Harris v. Easton Pub. Co., 335 Pa. Super. 141, 483 A.2d 1377, 1384 (Pa. Super. Ct. 1984).
The Court determined that the Borings failed to allege sufficient facts to establish that the publicity given to them by Google’s actions would be highly offensive to a reasonable person. Boring at 280.
The Court’s decision suggests that attempts to sue Google for invasion of privacy over its use of residential images in its Google Map program are not likely to succeed. Courts could suggest that Google’s opt-out option provides a better route for residents who think that their privacy rights are being violated.
© 2012 Nissenbaum Law Group, LLC