Privacy in the New Media Age
by Jon L. Mills
In the 19th century, the news media was only beginning to embrace the technological advancement of film photography. Born of chemistry, “instantaneous photography” permitted a new paradigm of ever more invasive news reporting to supplant its print-only predecessor. The advent of photojournalism resulted in widespread privacy concerns, leading Samuel Warren and Louis Brandeis to declare:
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.”1
The privacy rights of action utilized in the courts today were developed to meet the threat posed by film technology.
Today, individuals post digital images and video to social media in mere seconds. The soapbox of the 19th and 20th centuries has been replaced by the blogosphere where individuals, unlimited by editorial oversight, are able to publish their views — whether misrepresentation or otherwise — to a global audience in a constant stream. Twitter and Facebook have become leaders in breaking news stories. The market for fresh information demands greater speed and ever fresher content. The result is an erosion of accuracy in reporting in favor of speed and an increasing public appetite for exposure of private images and information. The gravity of inaccurate reporting and breaches of privacy are only compounded by the reality that once content is published to the Internet, it is published in perpetuity.
For those individuals who have their private photographs published, their secrets outed, or are otherwise mischaracterized on the Internet, the remedies available to them are equipped to redress harms presented by an earlier technological epoch. Others’ privacy claims will wilt in light of the strong U.S. policy interests in protecting free speech and freedom of the press.
In his new book, Privacy in the New Media Age, University of Florida professor of law and nationally recognized privacy advocate, Jon L. Mills, argues in favor of adapting substantive privacy law and a recalibration of the balance between “human dignity and privacy,” and freedom of the press. En route, Mills provides a primer on U.S. privacy law and alternative theoretical approaches to advancing privacy law into the social media era. Mills goes on to use case studies to illustrate the deficiencies of the present U.S. privacy model both procedurally and substantively. His comparative analysis examines the disparity in outcomes on common facts as between several nations’ privacy models, including the U.S., England, and the European Union. This discussion deftly leads into Mills’ proposals for substantive legal change in U.S. privacy law.
For those readers interested in examining the legal tensions present at the intersection of freedom of speech, freedom of the press, and the right to be let alone, Privacy in the New Media Age is required reading. Irrespective of whether the reader agrees with Mills’ policy objectives or his proposed means of reaching those objectives, this book provides a thought provoking exposition of the common law’s struggle to adapt in an environment of rapid technological change. The book is available from the University of Florida Press for $29.95.
1 Warren and Brandeis, The Right to Privacy, IV Harv. L. Rev. 5 (Dec. 15, 1890).
Anthony S. Hearn of Coral Gables is a member of The Florida Bar.