A recent New York Appeals Court case highlights the holes in the current laws designed to address modern privacy abuses. The case, Martha Foster v. Arne Svenson, involved a professional photographer who used a high powered camera lens from his own apartment to take pictures of individuals in a neighboring building. The individuals who were photographed were not aware that their photos were being taken. Ultimately, Mr. Svenson assembled his photographs of his neighbors and used them in a collection that he exhibited in galleries in Los Angeles and New York. While Mr. Svenson claimed to have obscured the photographs to make the individuals unrecognizable, Ms. Foster’s children were identifiable in the photographs. The pictures at issue included one that showed Ms. Foster’s son in a diaper and another where her daughter was captured in a swimsuit.
After discovering the photographs, Ms. Foster contacted Mr. Svenson and the galleries to demand that they stop showing and selling the pictures of her children. While Mr. Svenson and the galleries complied with Ms. Foster’s request and removed the photographs from the galleries, during a television broadcast discussing Mr. Svenson’s work, one of the photographs of Ms. Foster’s daughter was shown.
After the photograph of Ms. Foster’s daughter was revealed on television, Ms. Foster initiated litigation under New York’s statutory tort of invasion of privacy and the common law tort of intentional infliction of emotional distress. The New York Supreme Court (New York’s version of Superior Court) dismissed the Complaint and determined that the photographs were protected under the First Amendment. The matter was thereafter appealed to the New York Appellate Division.
New York’s statutory right to privacy prohibits “the use of a person’s ‘name, portrait or picture’ or ‘name, portrait, picture or voice’ for advertising or trade purposes.” That being said, the statutory right to privacy, the Court noted, is tempered by First Amendment considerations, including whether the piece of work has artistic value, is newsworthy or pertains to a matter of public concern. However, according to the Court, the statutory right to privacy is not circumvented simply because a piece of work has artistic value, is newsworthy or pertains to a matter of public concern. The Court states that “the newsworthy and public concern exception does not apply where the newsworthy or public interest aspect of the images at issue is merely incidental to its commercial purpose.” While the same limitation would apply to artistic works, in this case, the Court found that the photographs constituted legitimate artistic expression that was protected by the First Amendment. Moreover, the Court found that Mr. Svenson’s actions did not constitute “outrageous” behavior that was actionable under the law.
In making its decision the Court commented that “many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case.” According to the Court, however, “such complaints are best addressed to the Legislature – the body empowered to remedy such inequities.” Finally, the Court added that “as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.”
Despite being conflicted with its decision, the Court was constrained by the law. By requesting that the Legislature reexamine the statutory right to privacy, the Court recognized that privacy laws need to be revised to reflect modern realities.
Foster v. Svenson highlights how Courts are struggling with taking traditional laws and applying them to new technologies that have privacy implications. In the age of drone technology and pervasive surveillance, citizens are increasingly going to need to be vigilant about protecting how their images and identifies are being utilized. It appears, however, that unless State legislatures enact laws that consider new technologies, existing laws maybe inadequate to protect individuals’ privacy.