Category Archives: invasion of privacy

Can Google Maps Be Sued For Invasion of Privacy?

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:

1) publicity

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.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

When Does Being Portrayed in a False Light Invade One’s Privacy?

The legal concept of invasion of privacy by false light could end up leaving the music network MTV in the dark.

In Savely v. MTV Music Television, the Federal District Court for the District of New Jersey denied MTV’s motion to dismiss a suit filed by a street musician. The musician asserted that he did not consent to having footage of his performance included in a documentary the network aired. Savely v. MTV Music Television, 2011 WL 2923691 (D.N.J.).  

Michael Savely, a drummer who performs daily as “Mike Alaska” on New York subway platforms, claimed that he was approached by MTV representatives during one of his routines last November. The representatives asked whether they could film his performance for use in an upcoming documentary. Savely reviewed a contract with which the representatives presented him. He then returned the contract; declined their offer to use footage of him; and told them he did not consent to being filmed. In spite of his refusal, a four-second clip of Savely’s performance was included in a program about the life and career of rap artist Nicki Minaj that debuted on November 28, 2010.

Savely filed suit against MTV asserting three claims of invasion of privacy. The Court granted MTV’s motion to dismiss two of Savely’s claims: (a) invasion by appropriation of name, likeness or identity and (b) invasion by publication of private facts. (A motion to dismiss generally allows a court to throw out prior to trial claims that are without legal merit).

However, the Court denied MTV’s motion to dismiss Savely’s other claims that the network invaded his privacy by false light. According to Savely, the inclusion of the footage of him in the documentary associated him with Minaj, an artist that he said – through her profane lyrics and provocative attire – glorified a lifestyle that was contrary to the image that he chose for himself as a performer and music teacher (drum lessons).

Under New Jersey law, the invasion of privacy can occur under a number of different circumstances. One of them is when “[o]ne who gives publicity to a matter concerning another…places the other before the public in a false light. This breaks down into two elements:

  1. the false light in which the other was placed would be highly offensive to a reasonable person and
  2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

See Cibenko v. Worth Publishers, Inc., 510 F.Supp. 761, 766 (D.N.J. 1981).

Savely asserted that the unprofessional quality and sounds of the footage included in the documentary reflected poorly on him. He also asserted that as a performer, the implied association between Minaj and him portrayed him in a false, unfavorable and disparaging light. In support of this assertion, Savely cited the facts that  the use of the footage caused (a) his fans to criticize him; (b) the parents of his students to terminate his teaching services;  and (c) sales of t-shirts with his image to decline. He said that part of his reason for declining MTV’s offer to be included in the documentary was his fear that association with the “wrong” artist would cost him significant business.

MTV argued, in part, that the footage of Savely was not distorted in any way and that images of him were not distinctly linked to Minaj or any substantive themes of the documentary. However, the Court noted that a claim of invasion of privacy by placing the other before the public in a false light would not require that MTV’s action defamed Savely, but instead merely that the network’s action was “something that would be objectionable to the ordinary reasonable man.” Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 334 (Law Div.1967).

The Court’s decision to deny MTV’s motion to dismiss does not mean the network is guilty for invading Savely’s right to privacy. Instead, it allows Savely’s claim that he was publicized in a false light to continue because the facts he alleged, if proven to be true, could support his claim. Additionally, the Court noted, the question of whether the documentary is capable of bearing a particular meaning that is highly offensive to a reasonable person is one for the Court to decide.

The Court’s decision not to deny MTV’s motion to dismiss is significant for entertainment companies and individuals that record the image and likeness of people for use during those individuals’ projects. Savely’s suit demonstrates the significance of receiving consent from those who are included during a television broadcast, movie or similar medium and the consequences of including those who refuse consent.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC