by Eileen | 11:50 pm, February 5, 2013 | Comments Off
The man who sang about ‘Love in an Elevator’ wants his privacy.
And the Hawai’ian legislature is happy to oblige. The Steven Tyler Act of 2013 (not being sarcastic) would create a right of civil action to remedy constructive privacy invasions:
A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.
My question is, why? The tort you would use to seek redress against someone who did this to you exists, and Hawai’i is one of the few states that has a right to privacy in its Constitution. I realize explaining privacy law to dingbat celebrities might be difficult, but could someone tell the beautiful people this law isn’t necessary?
I don’t doubt journalists make their life a hell at times. I disagree that existing laws can’t deal with that.
By way of background, American tort law recognizes four categories where any on us already have a right of action: intrusion upon solitude, public disclosure, false light, and appropriation.
Intrusion upon solitude is personal or electronic intrusion upon solitude and privacy that the famed ‘reasonable man’ would find offensive. Under this, you have a right of action even the intruder didn’t profit monetarily from your data or even intend to. This is necessary as stalkers and voyeurs often have no intention of publishing or sharing data, but they do harm all the same.
Public disclosure of private information is the wrongful publication of truthful information that the reasonable man would agree is private.
False light is publishing facts that place someone in “false light’ (hence the name), even if the facts don’t rise to the level of defamation.
Appropriation is using another person’s name to gain some benefit. Celebs already use this one a lot, as it covers people who claim or infer a celebrity endorsement in order to sell some good. (Closely related is the ‘right of publicity’, which concerns owning your own image for licensing purposes. That, however, is considered a property right, as that classification allows it to be inherited – hence the massive profits dead stars accrue to their designated heirs.)
In America, we don’t give special rights to celebs. When it comes to privacy in public places, the gestalt of American law has been that there is no privacy in public places. Rather simplistically, the American view is that you shouldn’t do it in public if you don’t want it known and that you are the first guardian of your reputation.
Americans are also in thrall to celebrities. In practice, we might say that the perks of being high profile are not without drawbacks and that’s life, that celebrities are so happy to use their fame when it suits them that it’s disingenuous to suddenly announce ‘I want privacy’, and that the price of fame is well known to any and all who seek it. Again, that’s a bit simplistic but it conveys the point. It just won’t do to artificially sever the benefits from the costs in celebrity.
Hawai’i, however, is not really legislating on privacy; they’re pandering to stars who spend lavishly on beachfront mansions and bring publicity wherever they go. One would think they might have triggered some reflection before they introduced a bill allowing civil action against anyone recording anything a star does in public under the vaguest of causes.
The bill’s introduction, hilarious for its bad grammar, makes it plain enough that this is an economic bill, a bid for more money from wealthy celebrities and middle class tourists hoping to see the beautiful people by making Hawai’i look more attractive than other beachy places:
The privacy of these celebrities endure unwarranted invasion into their personal lives. Although their celebrity status may justify a lower expectation of privacy, the legislature finds that sometimes the paparazzi go too far to disturb the peace and tranquility afforded celebrities who escape to Hawai’i for a quiet life.
SB 456 justifies itself by insisting celebrities don’t vacation on or buy property on the islands because of the relentless paparazzi. I would love to see that study. If famous people stayed away from places where they are likely to be followed about by the media, they wouldn’t be famous people. Manhattan and L.A. would be empty.
But I guarantee the trial lawyers are behind it.
If existing laws can’t deal with an out of control photog, it’s time to reassess. As it is, there are criminal and civil remedies for invasion of privacy, stalking, trespassing, defamation, slander and libel, blackmail, theft, impersonation, assault, false imprisonment, causing someone to fear for his safety, creating a public nuisance, harassment, loitering with intent, littering, obstructing traffic, impeding a a throughway, disobeying a peacetime officer, creating a safety hazard, unsafe driving, intentional infliction of emotional distress, and despoiling a protected beachhead. If you have that toolbox and can’t find a way to deal with a lowbrow journalist, you, frankly, suck.
The root of the extent to which the paparazzi will go in the pursuit of celebrity ‘news’ lies in a cultural fixation on the famous. Their lives are composed entirely of the fun parts, they make enormous sums of money for little work, they’re dressed in platitudes as often as in one-off couture masterpieces, the world takes them seriously on whatever they feel like babbling about, they owe success to chance more than to talent, which makes it easy to imagine we could achieve fame, and they get away with the appalling behavior the rest of us secretly fantasize about.
Of course they’re interesting.
So long as the appetite exists, a market will thrive. Tabloid journalism is not going anywhere. The Fourth Estate will shutter every other section before cutting back coverage of celebs. Civil damages will be passed on to consumers in subscription costs. I imagine major news outlets can afford to spend a lot in settling cases. Covering the civil cases brought by all those sulking, violated A-listers will itself become tabloid fodder. And the cycle is unbroken.
Hollywood types are nauseating as it is. They already get special treatment that causes massive disruptions to any little person unfortunate enough to be in the way, enjoy the benefit of an effectively two-tiered legal system, and command public attention grotesquely out of sway with their contributions. Some of us actually have to demonstrate real expertise on a policy area before Congress asks us to testify. Celebs don’t need to be told they’re entitled to their own set of torts, in addition.
We all do well to remember these people sought fame, actively work to cultivate fame, reap great benefits from fame, and exploit fame in ways that our ‘reasonable man’ might find offensive. Legislating as if tabloid photographers lined up outside a pricy restaurant are the worst privacy invasion in the modern world is an insult to people suffering under real privacy harms and a mockery of the severity of the exploding surveillance state.
I’ll tell you one thing that would shutter the shutterbugs quickly – if the Hollywood set went hard right and discovered the Make My Day law.
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