Right to Privacy in the Era of Social Media

Written for the National Association of Professional Women
Springfield, Mo Local Chapter in Legal Corner Monthly Spotlight

By: Heather Rooney McBride and Danielle R. Kerckhoff

The surge of social media over the last fifteen years has brought many private matters into the public light without the authorization or approval of the parties involved.  This trend will likely continue as it becomes easier to access social media on-the-go through iPads and smart phones, which are increasingly more available and popular with the general public.  While social media is often used to share photos of newborn babies and plates of food, it is also improperly used to share private photos that were never intended for public viewing.

The best step to prevent a private moment from going public is to ensure no photos are taken in the first place.  While this prevention step is an option in some situations, many occasions arise where photography cannot be avoided.  When photos are taken and shared without permission, Missouri law requires an analysis of whether there was an unreasonable intrusion upon one’s privacy. See generally Crow v. Crawford & Co., 259 S.W.3d 104, 120 (Mo. App. W.D. 2008).  The analysis often turns on whether the private moment occurred in a public or private setting.

For example, there is no right to privacy in a public location, such as a park.  Id.  In Crow v. Crawford a woman sued a private investigator who took a video of the woman as she was urinating near a wooded area at a public park.  Id.  The Missouri Court of Appeals rejected the woman’s claim that her privacy had been violated because, although urination is a private matter, the private investigator was able to videotape her in public and, because the woman chose to urinate in public, the private investigator did not intrude upon her privacy.  Id.

The right to privacy becomes less clear in a private setting.  In order to prevail in a lawsuit in Missouri for unreasonable intrusion into one’s privacy, a plaintiff must prove the following: (1) the existence of secret and private subject matter; (2) the plaintiff’s right to keep the subject matter private, and (3) that the defendant obtained the information or photo through unreasonable means.  See generally St. Anthony’s Medical Center v. H.S.H., 974 S.W.2d 606, 609 (Mo. App. E.D. 1998).  The third requirement, that the defendant obtain the photo through unreasonable means, becomes difficult when the photo was consensual at the time the photo was taken or the photo was taken without objection.

Missouri case law has not caught up with the different social media devices in use today. However, California’s requirements for invasion of privacy are similar to Missouri’s, and there is at least one case on the books concerning personal photographs posted on Facebook.  California courts look at the context and circumstances of each case, including but not limited to the degree of the intrusion, the setting of the intrusion, the defendant’s motives, and the plaintiff’s objections.  Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 231 (Cal. 1998). Earlier this year, a California jury awarded a plaintiff $250,000 in damages for invasion of privacy as a result of her ex-boyfriend posting photos of her on Facebook; although the photographs were taken with consent, the plaintiff never consented to the posting of the photographs on social media sites.  See Liamsithisack v. Bruce, Case No. 1-12-CV-233490, Santa Clara Superior Court.

As the social media trend becomes more widespread, so too will violations of privacy.  Thus, legislatures in many states are attempting to protect their citizens by redefining certain actions as crimes.  Some states have adopted “revenge porn” laws which criminalize the online posting of nude or sexual photos of former spouses or significant others.  There are two pending bills in the Missouri House of Representatives concerning “revenge porn.”  House Bill 1334 creates the crime of publishing pornography for revenge.  House Bill 1203 creates the crime of revenge pornography.  House Bill 1203 was approved by a House Committee in February of this year.  Since that time, no further steps have been taken to pass either bill.

Each factual situation regarding a potential invasion of privacy is unique.  This article does not attempt to discuss every privacy theory that may be the basis of successful litigation.  If you believe your privacy has been invaded through the posting of photos on social media or otherwise, please contact an attorney for legal advice.  The choice of an attorney is an important decision that should not be taken lightly.  Nothing contained in this Article is intended to be nor should it be construed as legal advice and should not be independently relied upon for any purpose whatsoever.