Privacy Rights?
by Thomas V. Bennett
A portion of this article was published in the Opinion section of Massachusetts Lawyers Weekly, March 19, 2007.
Obama. Clinton. McCain. Edwards. Giuliani. Romney. That’s certainly the short list of politicians who have thrown their hats into the 2008 presidential ring. As we, the voters, try to narrow down this virtual Capitol Hill roll call to a manageable ballot, we will undoubtedly hear many promises, heartstring-tugging anecdotes, and cross-party slander. We need only to look at our recent gubernatorial election to see how far we’ve sunk in the muck-slinging category. And to ask ourselves when will we tell the media that enough’s enough, and people (yes, even politicians) deserve some privacy.
Although one could argue about what was the lowest part of the Healey campaign, certainly one of the most painful parts for Deval Patrick had to be the public revelations about his relatives' criminal history --- people who were clearly innocent bystanders to Patrick's ambitions. (The Healey camp denied leaking this information to the press, but it was somehow revealed, nonetheless.) Even Deval Patrick, a seasoned lawyer, seemed to be stunned by the invasion of privacy.
On the national scene, Vice President Dick Cheney has taken heat on numerous occasions because his daughter is a lesbian, mainly from the right. Nonetheless, Senator John Kerry seemed to use the fact to sway right-leaning voters when he off-handedly mentioned during a 2004 presidential debate that Cheney’s daughter is a lesbian, causing Lynne Cheney to say it was “a cheap and tawdry political trick." Kerry said he meant no offense by it.
It seems political strategists have determined that anyone within slinging distance of an opponent should expect to be knee-deep in sludge by the first Tuesday in November. That made me wonder whether or not we have any privacy rights at all.
We do, in fact, have a statute. General Laws, c. 214, § 1B provides as follows:
"A person shall have a right against unreasonable, substantial or serious interference with his privacy. The Superior Court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages."
Nice short statute. I wonder what it means.
The Supreme Judicial Court in a recent case (Ayash v.Dana-Farber Cancer Institute 822 N.E.2 d 667 2005) added some clarification and put some meat on the bones of the statute. The Court observed that despite the disjunctive "or" the phrase "unreasonable, substantial or serious" is inclusive as § 1B "obviously was not intended to prohibit serious or substantial interferences which are reasonable or justified."
The Court noted that Professor Prosser discusses four types of conduct that may give rise to a claim of invasion of privacy (1) appropriation of a plaintiff's name or likeness; (2) unreasonable intrusion upon a plaintiff's seclusion of another; (3) public disclosure of private facts about the plaintiff (even though the facts are true and no action would lie for defamation); and (4) publicity which places the plaintiff in a false light in the public eye. The Court noted that it is the third type of conduct with which a majority of the cases under the statute have been concerned. The Court also noted that it has not adopted an interpretation that would give rise to a claim of false light invasion of privacy claim. The Court pointed out that as recognized in the Restatement (Second) of Torts "every individual has some phases of his life and his activities and some facts about himself that he does not want to expose to the public eye but keeps entirely to himself or, at most, reveals only to his family or to close personal friends . . . When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable [person] there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest." "When the subject matter of the publicity is of public concern . . . there is no invasion of privacy." So, in order to recover under the statute, one has to demonstrate that there is "an unreasonable, substantial or serious" invasion of one's privacy and that it is not of "public concern."
And this is a tort statute. Given the likelihood of appellate cases based on the statute, we should have a good body of law in two to three hundred years.
We have come a long way in the last fifty years in civil rights and personal dignity. Our laws on public accommodations, employment and housing have made integration a reality. People have, by and large, abandoned ethnic and racial tribalism and have embraced diversity. Women have equal rights (except in some religions); women have a right to choose (except in some religions); diversity is in fact accepted; and in our state, even gay and lesbian people have a right to live with the same human dignity as straight people (except in some religions). Because of the hard work of civil rights leaders before us, we are fortunate enough to have both an African-American and a woman running for President of the United States. I think we owe it to our courageous predecessors and to ourselves to demand more of the media and the political strategists who run these campaigns. After all, we are the public. Our legislature, acting on our behalf, could certainly decide what is of "public concern" and what should be of private concern.
The legislature should amend the statute to incorporate the following and add some specific rights.
Everybody, during their lifetime, should have a right to privacy so long as it does not involve a crime or criminal conspiracy with respect to:
- one’s love life or sex life;
- one's relatives;
- one's friends;
- anything a person did before the age of 30;
- any product or service that a person purchases;
- one's conversations with his/her family members;
- the subject matter of any case in the Probate and Family Court except for such facts that are necessary in order to establish title to property.
That’s a start.
It is clearly in the interest of our Commonwealth and our nation to have the best and brightest citizens in public office. Paradoxically, it is a rare person who does not have some personal information she or he does not want exposed to the public eye. Given the pressure on media for advertising dollars and the history of our political campaigns, it is unlikely that decency will come voluntarily. Call or e-mail your representative today and tell them that you think privacy rights are important. I am.
Thomas V. Bennett can be reached at tvb@barronstad.com or (617) 531-6574.