Privacy: The Tort of Invasion of Privacy

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There is a branch of the common law of torts that focuses on invasion of privacy. One article on this is Robert C. Post’s 1989 California Law Review piece “The Social Foundations of Privacy: Community and Self in the Common Law Tort.” Unfortunately, most readers do not have access to university libraries and cannot tap into this and other literatures. Copyright restrictions stand in the way.

One should realize that privacy is a big subject, that privacy itself is very hard to define, and that invasions of privacy involve a cluster of very different kinds of activities that can harm individuals. No single case will lead the way to a complete understanding. I want to use the case below to illustrate that privacy has a strong social component in the common law, and in this particular case, physical aggression doesn’t enter in. In fact, in the tort law of invasion of privacy, the plaintiff need not show that he or she has even been injured. The reason for this is that the law against privacy invasions is upholding (protecting) certain kinds of social interactions in general within the society. Invasions of privacy that destroy these interactions are punishable even if there are no damages in a particular instance to plaintiffs. I think that most of us will understand why the law is what it is and why the court reached the decision it did, even though it may or may not not gibe with libertarian tenets and deductions based on self-ownership and property.

One case that Post discusses is Hamberger v. Eastman, decided in 1964 by the New Hampshire Supreme Court. A summary of the facts:

“Hamberger and his wife (plaintiffs) rented a house from Eastman (defendant). Eastman’s house was directly adjacent to Hamberger’s house. Unbeknownst to Hamberger, Eastman had placed an audio recording device in Hamberger’s bedroom. For nearly a year, Eastman listened and recorded the Hambergers’ conversations and intimate activities. After finding the recording device, Hamberger became greatly distressed, humiliated, embarrassed, and sustained mental suffering which impaired his mental and physical condition. Hamberger brought suit against Eastman for invasion of privacy. Eastman moved to dismiss the complaint for failure to state a claim. The trial court reserved judgment on the issue and transferred the case to the New Hampshire Supreme Court for review.”

The Supreme Court decided in favor of the plaintiffs. It denied the defendant’s motion to dismiss the complaint.

When you rent an apartment, do you control the walls and what’s in the walls? Is that a grounds for saying that Eastman trespassed by installing a bugging device? Did he violate a property right? Is your right to privacy in this case a right to clear walls without listening devices hidden in them? Did your rental contract say that or is it known to entail that? Is it up to the Hambergers to buy an electronic sweeping device and check for bugs? I do not know the answers to any of these libertarian-based questions. What I do know is that the common law doesn’t look at the matter in this way. It looks upon it in an entirely different way.

This doesn’t prove anything but it suggests that consideration of defenses of privacy need not rely on or be restricted to considerations of property. However, libertarians might possibly take solace that Post and the law recognize injury to “individual personality.” But, going against this recognition, the personality is not what is meant by the “self” in “self-ownership”. Furthermore, an invasion of  privacy, as in this case, involves no physical aggression or the threat thereof. Perhaps it involves a kind of fraud. The renters perhaps expect privacy when they rent, but if we go in the direction of expectation, then we are  going toward the area of social norms, which has been an underpinning of the law’s approach to this kind of invasion of privacy.

Post’s article explains the common law’s positions on privacy torts by turning to the work of famed sociologist Erving Goffman. Goffman says that in our social interactions, we follow rules of deference and demeanor. In following these, we establish aspects of our identities socially. Each “individual has a unique self all his own” but “evidence of this possession is thoroughly a product of joint ceremonial labor…” If these rules are broken, they can “damage a person by discrediting his identity and injuring his personality.” The person, the self,  is being disconfirmed.

Post, using Goffman, is trying to explain more exactly why invading privacy is so serious, even though there is no physical aggression. It not only causes acute embarassment but it makes the person feel as if they have been stripped naked and humiliated. The same kind of thing happens when your dwelling is burglarized. You lose something well beyond property that has been taken from you. There is a sense in which others have betrayed you.

The law of torts upholds social norms, and this simultaneously is good for society (as are the norms) but also for the individuals in that society. Post calls them “civility rules”. The personality that would be upheld by these rules he calls the “social personality”. Actual personalities that follow the rules conform to a social personality. This shapes the society and community.

The rules include privacy rules. Violation of them violates the society, which is why damages to a given person are not relevant in their enforcement. “Thus even if particular plaintiffs are not well-socialized and hence have not suffered actual injury because of a defendant’s violation of civility rules, the law nevertheless endows such plaintiffs with the capacity to bring suit, thereby upholding the normative identity of the community inherent in the concept of social personality.”

In personal interactions, we know enough (or should) not to pry and to let others reveal what they want when they want to. This is another aspect of a civility rule. Husbands and wives have to let their mates have their regions of privacy. Parents have to let their children have their regions of privacy. We operate very imperfectly, of course, in this realm as in all other realms.

When we move away from person to person privacy considerations and consider government to person relations or media to person relations, social norms do not suddenly vanish. When police and government agencies routinely invade privacy, civility rules are being violated wholesale. This is bound to undermine a society that depends on such rules for deference and demeanor and for proper development and expression of personality. Thoughtless expansion of privacy invasions by governments and police are likely to cause very negative social effects. I’m reminded of the equally mindless war on poverty and war on drugs. The government is very good at unleashing destructive forces on society. Invasions of privacy are no exception.

1:06 pm on December 15, 2012