Attorney William Meyer joins producer/host Coralie Chun Matayoshi to discuss how your personal information is collected and used, who owns your data, and what laws protect your right of privacy and publicity.
Q. An astronomical amount of data is created on the internet and social media every day, and 90% of it was generated in the last 2 years. With everyone using social media, apps, and buying online, have you ever wondered what companies like Tik Tok, Amazon, Ring and Safeway do with all of the data they collect about you and your children, and what about our right to privacy? How is personal information collected?
- Information that you choose to provide to them
- Information that they collect from other sources
- information that they collect automatically (e.g. cookies)
Q. Who owns the data (e.g. personal information, buying habits, whereabouts) that is collected by social media platforms, cell phone providers, Ring, and other companies and what can they do with that data (e.g. can they sell it to others)?
Tik Tok and other social media platforms have users agree to Terms & Conditions which are written in fine print that only 1% of users actually read. But beware that when you post something on a social media platform like TikTok or Instagram, you are surrendering the right to control its use and giving the platform a royalty free license to use of your content in perpetuity. In the absence of federal law governing the right of privacy, states have enacted a patchwork of laws to regulate the gathering and use of data. Sephora recently settled a $1.2M customer data privacy lawsuit that claimed that the company sold customer information without proper notice in violation of California’s consumer privacy law. GoodRX was fined $1.5 million for sharing users’ personal health data with third parties like Facebook and Google, without their consent.
Q. Some technology companies are voluntarily or unwillingly pulling back on collecting or selling data over privacy concerns.
Apple rolled out a new privacy control this year to prevent iPhone apps from secretly shadowing users. Social media platforms like Facebook have been criticized for using algorithms and digital tracking to get users to look at ads that generate most of their revenue. Google recently reached a $391 million settlement with Hawaii and 39 other states over how the company tracked users. Google uses personal and behavioral data to create detailed user profiles and target ads for their advertising customers. Location is among the most sensitive and valuable personal information that Google collects and they continued to track user’s location data even after they opted out. Facebook reached a $650 million settlement over its facial recognition technology that stored scans of people’s faces without their permission. The company planned to shut down its facial recognition system and delete the face prints of over 1 billion people. Clearview AI settled a lawsuit filed by the ACLU agreeing not to sell its face database of over 20 billion photos scraped from the web and sites like Facebook, LinkedIn and Instagram to most private individuals and businesses in the U.S. While they can still sell their database to federal and state agencies in the U.S., its technology is banned in Canada, Australia and parts of Europe for violation of privacy laws.
Q. How does the law protect invasion of privacy and right of publicity?
Privacy and publicity rights protect the ability of a person to control the commercial use of their image, and to prevent unauthorized or intrusive uses of their image. Invasion of privacy occurs when someone publishes or publicly exploits information about another person’s private affairs. Invasion of privacy laws prevent you from intruding on, exposing private facts about, or falsely portraying someone. The extent of this protection may vary if the subject is a public figure—for example, a celebrity or politician.
- Appropriation of Name or Likeness/Right of Publicity
Appropriation of name or likeness laws protect your right to control the use of your own identity for a business or economic purpose. Typically, these claims involve the unauthorized use of a person's picture or name. Elements: 1) Defendant used the plaintiff's name, likeness or identity; 2) The use was for the defendant's benefit, whether the benefit is economic or otherwise; 3) The use was without the plaintiff's consent; and 4) The use caused injury to the plaintiff.
The right of publicity grew out of the general principles of invasion of privacy that prohibit using a person’s name or likeness to gain a benefit. Within the past few decades, the right of publicity has emerged as an independent type of claim that a person can make when his or her name or likeness is used for commercial purposes. Although the right of publicity is commonly associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image to sell products. This right also prohibits any implication that a person endorses a product (without the person’s permission)
- Intrusion Upon Seclusion
Intrusion upon seclusion laws protect your right to privacy while you are in solitude or seclusion. This right extends to you or your private affairs. For example, it's an invasion of privacy for a neighbor to peek through your windows or take pictures of you in your home. Likewise, it's also an invasion of privacy to use electronic equipment to eavesdrop on a private conversation. Elements: 1) defendant intruded into the plaintiff's private affairs, seclusion or solitude; 2) the intrusion would be objectionable to a reasonable person; and the defendant does not need to communicate the details of the intrusion to a third party; once the defendant has committed the intruding act (and the plaintiff proves the necessary elements), the defendant is liable for invasion of privacy.
- False Light
False light laws protect your right to not have potentially misleading or damaging information about yourself publicly disclosed. This includes the disclosure of information that may be true but is nonetheless misleading or damaging. For example, it may be an invasion of privacy if a caption published with a photograph in a news article about a protest describes a person as a participant, when in fact, the person was only observing the protest. Elements: 1) Defendant publicly disclosed information about the plaintiff; 2) The information placed the plaintiff in a false light; and 3) The false light would be highly offensive to a reasonable person. Many states also require the plaintiff to prove that the defendant acted with actual malice, so be sure to check your state's laws or consult with a lawyer if you believe you may have a claim.
- Public Disclosure of Private Facts
Public disclosure of private facts laws protect your right to keep the details of your private life from becoming public information. For example, publicizing facts about a person's health, sexual conduct, or financial troubles is likely an invasion of privacy. To publicize a private matter, laws generally require that private information is disseminated in such a way that it is substantially certain to become public knowledge. Elements: 1) The defendant publicized a matter regarding the private life of the plaintiff; 2) The publicized matter would be highly offensive to a reasonable person; and 3) It is not of legitimate concern to the public.
Q. The right of privacy and publicity are governed by state law. What is happening at the federal level to further protect these rights?
Congress and the FTC are looking at ways to control how data is collected and used. On 2/28/24 President Biden issued an executive order to protect Americans’ personal data including biometrics, health records, and finances from foreign adversaries like China and Rusia. However, our heavily divided Congress would still need to fund this measure.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.