Nancy Danforth Zeronda has a NOTE in the May issue of the Vanderbilt Law Review, Street Shootings: Covert Photography and Public Privacy. Much of the article seems to address cases involving upskirt photography. The last section of the NOTE addresses another approach to redress for individuals whose privacy has been invaded in public spaces:
After scrutinizing courts’ reasoning in photographic invasion-of-privacy cases, several themes emerge. First, courts frequently rule against plaintiffs who suffer legitimate photographic invasions of privacy under the justification that an individual does not have a right to privacy in public. Recognizing the problem with this rationale, Professor McClurg has proposed an expansion of the tort of intrusion to encompass public invasions of privacy. Specifically, he argues for a new definition of the tort of intrusion that explicitly states that an iindividual can have a cause of action for an intrusion that occurs in a public place. He also suggests seven factors that should be considered in evaluating the offensiveness of the intrusive conduct: (1) the defendant’s motive, (2) the scope of the intrusion, (3) the physical location of the plaintiff at the time of the intrusion, (4) whether the defendant asked for plaintiff’s consent, (5) whether the plaintiff took any actions to suggest she wanted privacy, (6) whether the defendant disseminated information concerning the plaintiff that was obtained during the intrusion, and (7) whether the subject of the intrusion is a matter of legitimate public concern. The rise of upskirt photography since McClurg proposed this expansion provides further support for his conclusion that traditional notions of privacy should be redefined to encompass invasions that occur in public.
Read the entire article here.
Hat-tip, Concurring Opinions.