Privacy rights hold an interesting position in U.S. law. While not explicitly mentioned by the United States Constitution, they are considered a constitutional right by common law. It is a shared sentiment by judges that privacy rights are protected by the spirit of the Constitution, and that this can be inferred by reading between the lines of the Bill of Rights. For example, the Third Amendment protects the inherent privacy of the home and the Fourth Amendment protects private property from warrantless search. While the exact application of privacy law varies by state, there are some universally accepted foundations for its legal analysis.

Tort Law identifies four types of privacy torts: Intrusion upon seclusion, disclosing private information, false-light publicity, and appropriation of name or likeness. The fourth category, appropriation of name or likeness, overlaps with property law, which gives an individual the exclusive right to license their likeness for commercial purposes. Property law deals with the question of who is entitled to profit off a tangible or intangible good, while tort law deals with remedying injuries. Unfortunately, common law often conflates these two overlapping but distinct rights, to the detriment of society.  

Perhaps the reason why privacy rights are often conflated with property rights is because privacy is an ambiguous concept, and it is difficult to pin down a satisfactory definition of it. The legal right to privacy was first defined in an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis as “the right to be let alone.” This had been understood as the right to prevent publication. However, the article focuses more on the failure of the existing property laws to protect privacy rights rather than on why privacy is necessary in the first place. The article also fails to define privacy itself other than mention its inclusion of “personal writings and any other productions of the intellect or the emotions.” The Oxford Dictionary defines privacy as “the state of being free from public attention.” Under this definition, the right to privacy can be understood as an individual being entitled to freedom from public attention by default, and the exclusive right to control how/when/where they may waive that right.  This definition’s choice of wording, specifically “being free from…” also frames privacy as a liberty right, rather than a property right.

The issue of privacy in relation to surveillance technology was not foreseeable by the framers of the Constitution, nor in early discussions of privacy law. When the Constitution was written, photography did not exist. When Warren and Brandeis wrote their article on privacy, photography was not physically possible without the consent and cooperation of the subject. Candid photography (photography without the subject’s knowledge) and the Internet (a means of widely publicizing the image instantly) were not possible until the twentieth century. However, the relationship between candid photography and privacy can be inferred from an understanding of both.

First, to obtain candid photos, one would need to observe and record people without their knowledge or consent. Permitting this creates a “big brother is watching” type of society where people cannot leave their homes without risking being recorded. Living under a state of potentially constant surveillance conflicts with the reasonable understanding of the phrase “the right to be let alone.” People have the right to go about their daily lives without the risk of being photographed and placed on public display at any moment. Most people intuitively understand that being under observation is stressful. The scientific explanation of this phenomenon is that humans are highly social creatures who live in interdependent communities, and so the need for awareness of how we are viewed by others is strong. Many psychological studies have documented how people will change their behavior when they are being observed.

Secondly, photography captures a person’s likeness, which is immutable and inseparable from their personhood. For example, people who see a picture of “Jane” and associate it with certain ideas (i.e. sexuality, strength, intelligence etc.) will also associate Jane herself with those ideas. The fact that innumerable brands pay celebrities enormous amounts of money to appear in advertisements for their product, and the care with which celebrities choose their endorsements, is proof of this connection. Therefore, candid photography infringes on the individual’s ability to control public attention regarding their personhood and constitutes a violation of privacy.

To understand the legal implications of conflating two distinct rights, consider the following example: A woman (Jane) sues a website for posting photos of her a swimsuit without her consent. She can sue for appropriation of likeness under property rights or privacy rights depending on the circumstances. If Jane is a model, she can sue under property rights, which the website violated by profiting off her likeness, which is considered the exclusive property of Jane. The problem being addressed here is that the website is making money that legally belongs to Jane.

If Jane is not a model but a private individual, and the photos were taken either while Jane was unaware of the fact, or the photos were taken by Jane but not meant to be publicized, she should sue under privacy rights. Jane’s right to privacy was violated when her likeness was publicized without her permission. Under tort law, the violation of privacy itself is considered a harm. Jane does not need to prove that her reputation was harmed or that she was falsely associated with something offensive, or that it led her to fear for her safety. The emotional pain at the loss of autonomy and control over her likeness is enough.

By ignoring the above distinction between property and privacy rights, the law is failing to provide protection to those most entitled to it. Property rights of likenesses are more strongly protected for famous plaintiffs. This makes sense considering the goal of property law. A celebrity’s likeness is more valuable than a private individual’s and therefore more likely to be exploited for profit.  However, considering the goal of privacy law, this creates an absurd result. Privacy is a default right to be free from public attention. This right can be waived by consenting to public attention in some way. Celebrities, of whom it can be said have waived some of their right to privacy by actively soliciting public attention, should have a weaker claim to privacy rights than unknown individuals going about their daily lives. Additionally, while property rights are subject to sweeping First Amendment limitations, restrictions on liberty rights should be narrower to compensate for the greater imbalance of power between parties.

An easy way to narrow defenses for privacy torts can be to limit them to situations where consent has been given for public attention. Either express consent (i.e. by contract) or implied consent (i.e. actively pursuing celebrity status, running for public office, attending an event the press is invited to) can limit the right to privacy. In addition, criminals who were recorded while committing a crime can be said to have waived their right to privacy. For likenesses that are not eligible for a consent defense, media outlets can simply blur the faces on nonconsenting individuals. In this way, courts can simultaneously protect the important societal role of the press while also protecting a long-neglected basic human right.