Too Much Blogging Can Make You Go Blind
This is a legal blog, not one of those you might find at a domain ending in .xxx (oh, wait, those are on hold by White House request), so get your mind out of the gutter (but if you can't, see this recent report). The type of blindness we're talking about here is the kind that occurs when you've become so immersed in the daily routine of blogging that you've forgotten - or perhaps you never fully understood? - the legal concerns that blogging can raise. Over the next few months, on a quasi-regular basis, we'll be looking at some of the legal issues related to blogging that fall loosely under the umbrella of privacy and security law.
Some of the "privacy" issues we'll discuss include defamation and libel, right of publicity, intrusion, disclosure of private facts, and false light; some of the "security" issues include publication of trade secrets, disclosure of sensitive information (not trade secrets), corporate espionage, and issues arising under the various national security statutes such as the Trading with the Enemy act.
A few introductory thoughts. First, you've heard this before, but it never hurts to repeat it: as a blogger, you're now a publisher, and all of the legal issues that publishers face may now have some applicability to you. Second, although the "publisher" title may be accurate, blog entries are often created and posted on the fly, much like email, so the potential for saying something you wish you hadn't looms large. Third, while the blogosphere provides ample opportunity for retracting statements or engaging in a discussion (debate? full-fledged battle?) with folks you've offended, from a legal perspective these options may not protect you.
Of course, there are as many blog types out there as there are individuals, but for our purposes let's divide them into the following categories:
1. Individual blogger, self-published (diary-like)
2. Individual blogger(s), self-published or cooperative (journalistic slant)
3. Hosted by corporation, bloggers are traditional journalists (or at least paid to blog)
4. Hosted by corporation; bloggers are employees, management
The first two categories are meant to separate the vast majority of blogs, which are published by individuals who have no aspirations to be treated as journalists, from those that do approach their subject matter like a traditional journalist. Again, there are no actual bright lines here, and we have no intention of taking sides in the are-bloggers-journalists debate, at least in this context, but it is helpful for the legal analysis to separate out those blogs that will probably never seek or be accorded status as a news publication.
The second two categories are of increasing importance: corporate blogs, either those run by news organizations and other publications and their journalists, or those run by other types of corporations for their employees and even the general public (for example, the Sun Microsystems blog). Corporations that sponsor blogs face additional legal concerns that must be kept in mind as they set up the blogs, and as they monitor and maintain them.
So, without further adieu, let's talk about one of the privacy torts, as it might apply to blogging:
Intrusion into Private Affairs
Committing a trespass to collect personal information almost certainly qualifies as an intrusion; you can't, for example, sneak into a friend's house without authorization just to collect information for your blog. Intrusion encompasses more than just trespass, however, but the law doesn't provide us with an exceptionally clear formulation on what constitutes an intrusion where a trespass is not involved. In general, you cannot perform any act that intrudes upon someone's private affairs if the intrusion would be considered "highly offensive" to a reasonable person.
A determination of what is highly offensive depends on social standards of the community and what level of privacy people can expect under the circumstances. One important factor courts will consider is whether you collected information or obtained footage from an area in which your presence was permitted.
For the most part, pictures or audiovisual footage taken in a public are not subject to an intrusion claim, assuming you are engaging in harassment to procure your footage. There is a general sense that when someone is in public view or makes a statement that can be heard in public, his/her expectation of privacy is substantially diminished. You could, for example, take a picture of someone in public to post on your blog. However, taking a photograph in public could constitute an intrusion if it cannot be said that the subject of your photograph implicitly forfeited his/her right of privacy. For example, if you positioned yourself at the bottom of a public stairwell and took photographs underneath women's skirts, you would certainly risk an intrusion claim. None of the women walking down the stairs have consented to this type of exposure, they would reasonably expect their undergarments to be unavailable for public viewing, and by most social standards this type of photography would be considered highly offensive. Likewise, if you happen to obtain footage of someone in a compromising situation that would be extremely embarrassing to a person of reasonable sensitivity and the subject, although in public, did not voluntarily enter the situation (e.g., taking the picture a person when his pants accidentally fall to the floor), photographing the scene could still constitute an intrusion.
If you gather information in a public space, you are also generally not subject to an intrusion claim. You could, for example, write down comments you overhead on the subway for your blog. Most likely, courts would not find that people sitting on the subway have an expectation of privacy when what they are saying can be heard by any of their neighbors.
Even when you obtain audiovisual footage or information from a private area, you can avoid an intrusion claim if the manner in which you secure your footage or gain your information is unobtrusive, reasonable and not offensive. If you were invited into someone's house (assuming it was not under some false pretense) and took a picture or jotted down notes about unusual things in the living room, you would substantially reduce your risk of an intrusion claim because your presence was permitted by consent. On the other hand, you would be at risk if you snuck into the person's bedroom when the door was clearly shut and took photographs or recorded information. Most courts would also find no intrusion claim if you were to stand on a public sidewalk and take pictures or take notes on the activities of people inside of a house, if the subjects were in plain view from the sidewalk.
Intrusion claims are also not limited to physical intrusions. Hacking into someone's email account to collect intimate data would constitute an intrusion. Intercepting a cellular phone call would almost certainly qualify as an intrusion as well.
Posted by Lance Koonce and Steve Chung