PRIVACY - LOUISIANA

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PRIVACY - LOUISIANA

Postby Administrator » Fri Oct 03, 2014 12:54 pm

Privacy is a core American value. Americans also value the free flow of information. In the United States we analyze and balance these sometimes competing values on a sector by sector basis, calibrating the balance point to fit a particular set of circumstances. The United States Constitution only provides a right to privacy from governmental intrusion. U.S. Const. amend. 4. All Louisiana citizens, by virtue of the Louisiana Constitution, Art. I, Sec. V, are afforded greater privacy rights than those provided under the federal constitution. State v. Perry, 610 So.2d 746, 755-756 (La. 1992).

The Louisiana Constitution expressly contains a "right to privacy," whereas the federal constitution's right to privacy is unenumerated and is believed to be contained in the “penumbra” of related rights guaranteed by the Bill of Rights. See Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). Article I, Section V reaches privacy invasions between private citizens. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1387 fn.21 [La. 1979]; Professor Lee Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1 [1974]. Louisiana “citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.” State v. Hernandez, 410 So. 2d 1381, 1385 (La. 1982); State v. Moreno, 619 So. 2d 62, 64-65 (La. 1993); Moresi v. Dept. of Wildlife & Fisheries, 567 So. 2d 1081, 1092-1093 (La. 1990); Hondroulis v. Schuhmacher, 553 So. 2d 398, 415 (La. 1989); Parish National Bank v. Lane, 397 So. 2d 1282, 1283 (La. 1981); Devlin, Privacy and Abortion Rights Under the Louisiana State Constitution, 51 La. L. Rev. 685 (1991).

We must reexamine and strike the proper balance between the competing values of personal privacy and the free flow of information in a democratic society. Government is no longer the sole possessor of extensive amounts of personal information about U.S. citizens; in recent years the acquisition of personal information by the private sector has increased dramatically. Historically, information privacy protection efforts in the United States are generally reactive not pro-active. Both the public and the private sector adopt policies in response to celebrated incidents of non-consensual disclosure involving readily discernable harm. This approach leaves holes in the fabric of privacy protection. A careful study of fair information practices is warranted. Effective privacy policies must balance the following concepts. First, an individual's reasonable expectation of privacy regarding access to, and use of, his or her personal information should be assured. Second, personal information should not be improperly altered or destroyed. And, third, personal information should be accurate, timely, complete, and relevant for the purposes for which it is provided and used.

Corporate privacy policies must consider: (1) why it is collecting the information; (2) for what purposes it expects to use the information; (3) what steps will be taken to protect the confidentiality, quality and integrity of information collected; (4) the consequences of providing or withholding information; and (5) any rights of redress that are available to individuals for wrongful or inaccurate disclosure of their information. Reasonable steps must be taken to prevent improper disclosure or alteration of information collected, and should enable individuals to limit the use of their personal information if the intended use is incompatible with the reason for which the information was collected, or not disclosed in the notice provided by collectors.

The right to privacy in America was first applied to the private sector in 19th Century. Coined as the “right” to be "let alone" in a Harvard Law Review article published in 1891, the commentators set about discussing an innate right not derived from the English common law. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1891). It has long been known that no right to privacy as between private citizens existed under U.S. Constitutional law. Instead the concept of privacy developed through the American common law which reached back to Roman law. Over the years, various tortious invasions of privacy were acknowledged. William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960). It was not until Griswold v. Connecticut, 381 U.S. 479 (1965), that the U.S. Supreme Court recognized a limited Constitutional right applicable to certain intimate decisions related to family or marital matters. Other definitions of privacy have included the right to be left alone and to control information about oneself with respect to less intimate matters. Minister of Supplies and Services, Industry Canada, Privacy and the Canadian Information Highway, Cat. No. C2-229/1-1994 (1994).

Information privacy is not an unlimited or absolute right. As a practical matter, individuals cannot participate fully in society without revealing vast amounts of personal data.

Consumers increasingly purchase goods with credit and debit cards and engage in an ever greater number of electronic transactions. The information generated in the course of these transactions is routinely gathered, aggregated, and shared. Businesses often collect this information in ways that are not readily apparent to the individual. New information technologies may not fall neatly within our current experiences.

Modern technology makes it easier to integrate data from numerous sources to create a powerful information package about an individual. Data errors become more harmful as they are more readily propagated. Sometimes worse, misuse of information, on the other hand, can create an equally lengthy list of harms. Employers might misuse medical information by denying an individual a job because of an old stigmatizing medical condition, such as depression. Improper use of demographic information by a bank could result in redlining, and the inappropriate disclosure of personal information may cause embarrassment, harassment, or victimization.

Further, the magnitude of information collection, storage, and dissemination today increases the probability that information will be used in a manner not reasonably contemplated by the data subject. Separating clearly acceptable uses from clearly unacceptable uses may not be difficult. Most cases, however, fall in the middle of the spectrum where the benefits of using the information must be weighed against any diminution in privacy. Decisions about the use of personal data will be influenced by cultural norms, market forces, operating efficiencies, law and law enforcement efforts, civil liability and other factors.

The four torts include: (1) intrusion upon plaintiff's seclusion or solitude, or into her private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 836 (1991); Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496, 500 (1966).

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 231, 955 P.2d 469 (1998), citing Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1482, 232 Cal. Rptr. 668 (1986); Restatement Second of Torts, §§ 652B. Thus, the cause of action for intrusion has two elements: (1) intrusion into a private place, conversation, or matter, and (2) in a manner highly offensive to a reasonable person. See Shulman, 18 Cal. 4th at 231.The right to be secure from intrusion is not absolute. Damages are not awarded for minor incidents of overstepping, "which abound in a crowded world." Miller, 187 Cal. App. 3d at 1483.

To prove actionable intrusion, "the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff." See Shulman, 18 Cal. 4th at 232. There is no intrusion into a private place "when the plaintiff has merely been observed, or even photographed or recorded, in a public place." See Sanders v. American Broadcasting Co. Inc., 20 Cal. 4th 907, 914, 978 P.2d 67 (1999). The plaintiff must show he had an objectively reasonable expectation of privacy. See Sanders, 20 Cal. 4th at 915.

While determining what is "highly offensive to a reasonable person" suggests a standard for the jury to decide, the court makes the preliminary determination whether there is "offensive" conduct in discerning the existence of a cause of action for intrusion. See Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1483, 232 Cal. Rptr. 668 (1986); Sacramento County Deputy Sheriffs' Assoc. v. County of Sacramento, 51 Cal. App. 4th 1468, 1487 (1996). A court determines offensiveness by considering the degree of intrusion, the context, conduct and circumstances surrounding the intrusion, as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded. See Shulman, 18 Cal. 4th at 236; Miller, 187 Cal. App. 3d at 1483-84.

An invasion of privacy claim can be based upon certain actions which intrude upon a person's seclusion. Johnston v. Fuller, 706 So.2d 700, 701 (Ala. 1997); see also Carter v. Innisfree Hotel, Inc., 661 So.2d 1174, 1178 (Ala. 1995) ("One may invade another's privacy through either an intrusion upon a physical space, . . ., or by an invasion of one's 'emotional sanctum'[.]"). Such an intrusive act may be found to occur when an unwelcomed listener eavesdrops on a telephone conversation to which he is not a party. See Johnston, 706 So.2d at 702 (stating, in dictum, that an intrusive act which violates a person's privacy may occur "by discovering the plaintiff's private affairs through wiretapping or eavesdropping").

Where an investigation is based on reasonable suspicions and the manner of the investigation itself is reasonable, surveillance of a plaintiff by experienced investigators using proper techniques will not invade a plaintiff's right to privacy. Forster v. Manchester, 410 Pa. 192, 196-99, 189 A.2d 147, 150 (1963). The Pennsylvania Supreme Court stated that where a private investigator followed the plaintiff during her daily activities, recorded on film her movements and whereabouts, and trailed the plaintiff's automobile, the investigators' actions were reasonable. Id. at 197-98, 189 A.2d at 150. The court distinguished cases where investigators had trespassed on the plaintiff's property or spied through the plaintiff's windows. Id. at 198, 189 A.2d at 150.
David A. Szwak
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