In that Burger King, Andy Boyle thought he was listening to the disintegration of a couple’s marriage. He was really hearing the crumbling of his own ethics and self-restraint.
He might also have been hearing the crumbling of his own finances. His surveillance and subsequent reporting may be legally actionable and if I were that couple, I'd be lawyering up about now.
There are very clear laws and precedents that have hit the court room many times that make this situation very clearcut.
Boyle has done nothing illegal - recording anyone in a location where there is no reasonable expectation of privacy (a dining room at a Burger King definitely qualifies) is perfectly legal.
The use of this imagery is slightly more complex, but in this case there isn't really a case to be made. Non-commercial usage of someone's likeness in a broadcast is very well protected - and it can't be said that Boyle was using this couple's argument for commercial profit.
The only place where Boyle could run into trouble is recording on private (aka Burger King's) property. But even then, the laws around that are clear - unless there was clear signage prohibiting recording, or an employee of Burger King instructed him not to record, he's in the clear.
Morally? That's a minefield. But legally speaking I just don't see any case.
That is the way the law is currently structured and interpreted (in the U.S.A.), but it doesn't have to be that way. I have long been of the opinion that people should automatically own (representations of) their own expression, even in public. This is the opposite end of the spectrum from the current situation in the U.S., as you describe. Most jurisdictions in Europe are somewhere in-between.
That couple should have the right to sue. I understand that under the current framework they do not, but they should.
The editorial protections granted to videography and photography come from necessity.
If everyone has the right to all recordings of them, even in public, the media would cease to exist overnight, and we'd all be considerably worse off for it.
This is a rich source of powerful images that tell us about the world and the important things that are happening in it. How many of these people do you think have signed model releases? How many of these people do you think could have realistically signed one? Clearly the mother clutching her daughter in the floodwaters of Thailand has a retained lawyer nearby advising of her rights!
So what would our media become? Well, even more talking heads than today - since you won't be able to realistically record/broadcast any images of what's actually going on. The only people you can realistically, explicitly get permission from are armchair analysts.
We didn't just magically decide "oh yeah, you don't have full rights to your likeness in public" because we hate freedom. This whole issue has been heavily debated (and continues to be). It's foolish to say that we should just toss this whole thing without understanding all the angles.
The real issue here is that with the proliferation of recording and broadcast technology, there is now a lot of recording happening in public done by people without training or education in where to draw the line. Not only that, there are of course no professional associations or industry forces keeping people in check and censuring those who behave unethically. In fact, there isn't a code of conduct, written or unwritten, among the mass population about what is and isn't ok to record/broadcast. In other words, we've given everyone the power of reportage, but none of the sensibilities, responsibilities and obligations that have traditionally accompanied it.
IMO there really isn't a need for legal reform for this. What we as a society need to do is start setting new expectations for social behavior that account for these new technologies and their pervasiveness.
There would have to be fair-use doctrines, just as there is today with copyright. I can imagine, for example, that journalists reporting on natural events be allowed to use photographs depicting that event and its effects (including the people affected by it), as long as those photographs are only used in stories related to that event.
To use your Thai flood example, journalists would be allowed to use that picture of the woman and her child without a model release, but only within the context of a story about the floods in Thailand, or maybe next year in a story about the creation of a disaster relief fund for developing countries. But it doesn't become a stock photo, and he can't then turn around and sell that photo to Geico who uses it to sell flood insurance.
All I'm advocating is that the default position, after fair-use exemptions, be favoring privacy. I think you are taking a much more naïve view of my position.
The current rights granted to editorial usage is part of the fair use doctrine of photography. And note that editorial usage does not shield the defendant from real material loss civil suits - it simply shields the use of the imagery by default, and does not excuse the broadcaster/photographer from damages they cause.
I simply do not see anything to fix about this. The right to editorial usage is preserved, but if people go around causing material harm, they can, and probably will, get sued.
All without getting draconian about anything...
> "But it doesn't become a stock photo, and he can't then turn around and sell that photo to Geico who uses it to sell flood insurance."
This is already the state of the law. The use rights granted to editorial use are just that - editorial use. In legal precedent this has included not only traditional journalistic sources, but also artistic and benign, non-commercial use.
One thing that has been explicitly determined by previous cases is that commercial usage (stock photography included) is not considered fair editorial usage, and you'd better damn well have a model release if you want to use an image in that context.
tl;dr: Everything works as you yourself seem to expect. So where exactly is the outrage and call to reform coming from?
No. In the US if you take a picture of me in a public setting, you own that photo and all rights that go with it. Unless you do something so distasteful and unwarranted that I can claim material harm, I have no recourse against what you choose to do with that picture. See, for example, the paparazzi.
My expectation is that if someone takes a photo of me, I maintain some level of control over that photo. That is NOT the current situation.
I suspect we will come to a standstill here, we're reaching a pretty fundamental difference in opinion.
IMO what you're suggesting is a complete overreaching of privacy rights, and would make this society even more litigious and difficult to navigate than it is already.
For example, if you were any of the individuals in the background here:
under your system, you're allowed to ask me to take down my vacation photos. Because you happened to be in them. Worse, if you want the law to reach far enough to ban what Mr. Boyle has done, you'd be able to sue me for taking a vacation photo and daring to post it for people to see.
This would be wildly illegal also! Not only do we have strangers identifiably in our pictures, but they are the main subject to boot! The shock! The dismay!
How many people's rights to privacy were violated by this heinous example of blatant disregard for people's rights?!
I could go on and be even more hyperbolic - but what you're suggesting is that any use of anybody's likeness be banned by default, and edge cases for "legitimate" use be created to skirt around the fact that this would, well, cripple just about any sense of fair use we already have. Of course, "legitimacy" would be incredibly narrowly defined. So we're going to ban all use of people's likenesses... unless it's by tourists. Or journalists. Or for the protection of private property (e.g., CCTV), or...?
IMO this would simply result in a net loss of freedom for everyone involved. To main some semblance of normality, we'd force people working in tourist-heavy areas to sign over blanket photographic rights so the tourists can continue taking snapshots without fear of legal repercussion. As opposed to right now where people still hang onto their own inalienable rights. This would probably become de rigeur for anyone with any significant facing to the public - aid workers, people marching in a parade, etc etc. So in the end instead of simply having rights, we by default just sign everything away in a tome of a contract that's hardly comprehensible to anyone so that life can, well, continue.
It's hard to imagine a worse case of regulatory over-reach.
Again, you're taking a very naïve view of my position by presenting extreme cases and saying "look what will happen!"
In actuality, courts will continue to exercise their right to interpret the vagaries of the law on a case-by-case basis and to set precedents for fair use.
> IMO what you're suggesting is a complete overreaching of privacy rights, and would make this society even more litigious and difficult to navigate than it is already.
And I feel we would be better off for it. Maybe we'll just have to leave it at that.
Exactly how would we be better off for it? How many instances has a person's image been legally used to his/her detriment? Compare that to how many instances photos of unwilling (or unaware) subjects have helped society? Any kind of restriction on a right leads to a chilling of even legal exercises of that right. That's why it is legal to publish a lie in America. Not because our justice system encourages the publication of lies, but because any overreaching rule would people from publishing the truth out of fear of being sued on a technicality.
This is a ridiculous law. I'm a photographer and this would effectively kill the ability to document things as the are.
IIRC, in France, you have to be careful of taking photos of buildings, as their images are copyrighted by the architect. That seems, in one way, more justifiable as it is the work of the architect. But in other ways, less justifiable because a building is a longstanding fixture in the landscape that people have to live with being there. Either way, I think America's law works well enough.
Boyle has done nothing illegal - recording anyone in a location where there is no reasonable expectation of privacy (a dining room at a Burger King definitely qualifies) is perfectly legal.
I see a world of difference between a fight in a Burger King and a fight broadcast live over the Internet to thousands of people. The 'expectation of privacy' here doesn't seem as clear-cut as you make it out to be. I don't think you have to be in your own living room to have an expectation of privacy.
The "expectation of privacy" is a legal concept, not a lay concept.
We could argue about whether or not the couple should have had an expectation to privacy till the cows come home. It doesn't change the fact that Boyle is still, legally, in the clear. So "lawyer up" indeed.
It doesn't change the fact that Boyle is still, legally, in the clear.
Just to clarify, is that a legal opinion? I fully understand it's a legal question. But a civil suit for intentionally disseminating embarrassing information is very different from a Fourth Amendment case. This is a case where someone intentionally broadcast to the Internet a couple's marital issues (otherwise known only to a handful of people in a restaurant) with the apparent intent to ridicule them. You still haven't convinced me Boyle is 'in the clear'.
I am not a lawyer, but I am a photographer who has deeply studied this issue for my own protection. This is, and continues, to be a hot-button topic amongst photographers, so I would consider myself to be more informed than most people need to be.
So no, this is not a professional legal opinion, but it's one based on solid information about the laws of the United States.
If Boyle is to be sued, it won't be over anything related to use of likeness. More likely it will come from a defamation or libel angle - but that's entirely separate to the issue of privacy in public spaces.
"...it won't be over anything related to use of likeness."
I'd I agree with you there: it's not the likeness that's the problem. It's the wide dissemination of embarrassing private information without any apparent legitimate informative purpose. Like an upskirt photo, the fact that many people in the restaurant might have the same view doesn't mean it's OK to tweet the image to the world at large.
I agree - but this really is just a sign of the times. Technology has made our previous implicit social contract re: privacy somewhat out of date. We need to (and we are, naturally) developing new codes of conduct in its place. Incidents like this will push this evolutionary process in the right direction.
Not sure why we need to get involved, legally. This seems like one of those things where we really can just let it regulate itself. I am fairly certain Mr. Boyle is receiving his lesson in respecting boundaries as we speak.
I think this is a result of applying 19th century concepts of privacy to a 21st century world.
I don't disagree. Privacy case law has mostly evolved in the context of large corporate or government entities violating the privacy of individuals, because those entities were the ones with access to surveillance and broadcasting or publishing technologies. Now everyone is a broadcaster, and their editorial discretion (and morals) will vary.
I think this is a result of applying 19th century concepts of privacy to a 21st century world. The rapid leap of technology has outpaced our notions of privacy and ethics. Think about this situation from the point of view of someone born in 2011 and their response might be completely different.
Society needs to start thinking about what we need to move forward and stop shackling ourselves with ideas that are hopelessly outdated.
Can a conversation that is forced upon other people (in a different setting I could imagine that guests in that BK complain about the couple shouting) still be considered private?
I don't think it's privacy that's the issue here, rather the degree of privacy. By live blogging the ordeal, it unwittingly went from an argument in a Burger King in front of a few people to an argument broadcast on the Internet to thousands. I don't think it's illegal and I probably wouldn't fault most people for doing this, but Boyle's a trained journalist. He should know the ethics of communication inside and out.
"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 his privacy, if the intrusion would be highly offensive to a reasonable person. " (emphasis added)
He might also have been hearing the crumbling of his own finances. His surveillance and subsequent reporting may be legally actionable and if I were that couple, I'd be lawyering up about now.