Millions of people know him as the “Star Wars Kid.” However, his notoriety is not for a Nobel Prize-winning scientific discovery, a spectacular sports play, or an Academy Award-winning big-screen performance. Rather, his notoriety is for one of the most embarrassing moments in his life which has been viewed by millions over the Internet.
In 2008, the story of the Star Wars Kid was reported in Scientific American Magazine. In 2002, as a 15-year-old, he was videotaped waving around a golf ball retriever while pretending it was a light saber. Without the help of the expert choreographers who worked on the Star Wars movies, he stumbled around awkwardly in the video. Unfortunately, this video was uploaded secretly to an Internet video site by some of the boy’s “friends.” It became an instant hit with millions of fans. All across the Internet, people started mocking him, making fun of him for being pudgy, awkward, and a nerd. Several remixed videos of the Star Wars Kid popped up, adorned with special effects. People edited the original video to make the golf ball retriever glow like a light saber. They even added Star Wars music to the video and mixed it with other movies. His image appeared in a video game and on television shows such as Family Guy and South Park. However, his instant fame involved constant ridicule, misfortune, and torment. For a 15-year-old boy, it is one thing to be teased by classmates at school, but quite another to be ridiculed by millions all over the world.
As the Internet has moved from a niche phenomenon to mass adoption in recent years, this same fate has been shared by others on a smaller scale over and over again. Recall the recent humiliation of a certain female ESPN reporter who found a surreptitiously (and illegal) videotape of her, alone in a hotel room in the buff while preparing to dress, uploaded to the Internet, played by millions, and reported upon in the mainstream media.
Social networking sites (such as Facebook®, MySpace®, and Twitter®), along with video sites (such as YouTube®), have become increasingly popular and are visited by millions of people daily. These popular sites may have been intended originally to be used to meet new people, to communicate with existing friends, or to just express one’s individualistic style or point of view on any topic desired, but they also allow a user to post essentially any information the user chooses, whether about the user, a friend, or even a complete stranger. There are no requirements for truth, relevancy, or consent; no verification as to how and where the information was gathered; and no policing procedures whatsoever. Rather, anyone with access to a computer and an Internet connection can upload videos, pictures, or a host of other media freely and openly to the world.
So, how does this, or will this, change our concepts about privacy?
Currently, the legal concept of privacy in the United States generally recognizes as private only information that one both intends to keep secret and, in fact, keeps secret; all information given to others is considered public. However, the societal concept of privacy is far more complicated, as it involves a cluster of nuanced expectations of accessibility, confidentiality, and control by all parties involved.
Take, for instance, the story of the ESPN reporter who did not know someone was watching and videotaping her. Take another step and consider the Star Wars Kid who knew he was being videotaped, but did not ask to have the video uploaded to the Internet; however, one day there it was for millions to see. Take yet another step and consider daily life activity. Everyday, people leave their homes and carry on activities in “public.” They go to the grocery store, to the bank, and to the post office. All know that what they are doing can be, and probably is, overheard by others and watched by rapidly multiplying numbers of security cameras, but most never dream that their actions, conversations, or other daily affairs might be taped and broadcast anywhere, much less on the Internet. However, with the ease and unfettered ability to post information on the Internet, there is no reason that every aspect of a person’s public daily life cannot be recorded and uploaded. The question then arises as to what degree of privacy can a person expect and demand that the law protect when the person is going about daily activities carried on in public places, and what recourse, if any, should be available to a person whose public activities end up on the Internet?
In the United States, there currently are four types of invasion of privacy actions recognized by law: (1) appropriation of a person’s name or likeness for another’s advantage; (2) intrusion upon a person’s seclusion or solitude, or into the person’s private affairs; (3) public disclosure of embarrassing private facts about a person; and (4) publicity which portrays a person in a false light in the public eye. However, North Carolina law does not currently recognize invasion of privacy by disclosure of a private fact or portrayal in a false light (3 and 4 above). Further, recourse for the appropriation of a person’s name or likeness generally is allowed by North Carolina law only when there is a financial gain on the part of the person unlawfully using the name or likeness.
Therefore, in North Carolina, if a person’s public actions are posted on the Internet, the most likely recourse would be based on an action for intrusion into the person’s private affairs. North Carolina law recognizes this remedy for “the intentional intrusion, physically or otherwise, upon the solitude or seclusion of another or [in another’s] private affairs or concerns where the intrusion would be highly offensive to a reasonable person.” Specific examples of actions allowing this remedy are physically invading a person’s home or other private place, eavesdropping on private conversations by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and the unauthorized opening of personal mail. However, this remedy is limited to information that is private in that the information was not open to be seen or heard by an unintended observer who does not use an unlawful method to view or hear the information. In other words, it does not apply to situations involving the use of public records or acts that were lawfully observable by the public without mechanical means and as to which the offended person has no reasonable expectation of privacy.
Unfortunately, it is clear that North Carolina laws and court decisions have not yet caught up with the times and technology, and, thus, there are no clear, definitive, and satisfying answers to questions surrounding privacy and the Internet. For now, in North Carolina and in the United States in general, the underlying principle of privacy law remains that a person who voluntarily exposes actions or information to observation by a member of the public has no reasonable expectation of privacy and is afforded no protection under the law.
However, the law, either by legislation or court decisions, eventually finds ways to protect the expectations of reasonable people and to punish, either civilly or criminally, those who act without the use of common sense and in defiance of common sensibilities. The tide has begun to change in the rest of the world. For instance, in Canada and most European countries, individuals have received privacy protection in the form of more stringent privacy statutes recognizing that simply revealing information to others does not automatically extinguish one’s right to privacy. Rather, a more thorough and detailed look into the person’s “reasonable expectation of privacy” must be undertaken. This view rightfully takes into account the advancements in technology, information gathering, and ease of accessibility to “raw,” and perhaps manipulated, information.
For example, it now may be time for United States law to recognize the expectations a reasonable person might have in “semi-public” or “semi-private” information disclosed to others only for limited purposes.
Our laws have properly served our needs in the past; however, with the ever accelerating changing of the times, society, and technology, perhaps it is time to develop a new and more nuanced law of public and private affairs. This new understanding would acknowledge that more personal and intimate information is going to be available for further dissemination, so protection surrounding how that information is shared and distributed also should be in place. United States law appears to be lagging behind, perhaps because of our historical and cultural basis in favor of freedom of speech and press and the flow of information free from governmentally-imposed limits. As the Internet evolves to become the primary means for communication (and many would argue it already has), the legal concept of privacy also must evolve.
For further information regarding the issues described above, please contact Thomas E. Stroud, Jr.
