Bob Latham Bulletin

Bob Latham Bulletin The Erosion of Privacy in a Flatter, Younger World

I and five Jackson Walker colleagues have just returned from the Media Law Resource Center (MLRC) Conference in London, which featured a lively discussion on comparative notions of privacy. That was preceded by a week in France with the U.S. Rugby team at the World Cup, which provided an interesting backdrop to the discussion.

Historically, the French notion of privacy is very restrictive — private lives are off-limits, and the private moments of anyone, even if taking place in public, are off-limits unless they have some public significance. It is certainly consistent with French political discourse. In 1998, the French could not understand why Americans were obsessing over the private life of Bill Clinton. To the French, what one does in private is completely unrelated to the public business, even if that person is a public official.

By contrast, American law has been fairly well-settled in the opposite direction. To put it bluntly, American law generally abides by the "get a room" philosophy. If you're doing something in public, it is generally fair game for public capture and commentary. If your voice can be heard in public, it can generally be recorded in public. If your face is visible in public, it can generally be photographed in public. Thus, even while in France, I didn't particularly have an expectation of privacy walking out of a World Cup disciplinary hearing in Place Vendome with a prominent U.S. player who was of interest to the French and international sports press.

So the question arises, with increased movement between citizens of different countries and global press coverage, whose expectation of privacy governs? There are signs, in various judicial decisions and as discussed at the MLRC Conference, that the privacy world is getting flatter — that draconian notions of privacy are being tempered by another nation's more moderate expectations of privacy, and vice versa. Indeed, "Mr. Hockey," Gordie Howe, recently obtained an injunction against a neighbor in Detroit who had been snapping up to 17,000 photos per day of Howe's home. It is too early to suggest that a unified global view of privacy is emerging, but there is notable cross-cultural influence that may alter the legal landscape.

Wherever the erosion of cultural differences regarding the expectation of privacy stands, there is certainly a generational shift when it comes to expectations of privacy. There is an entire generation of people coming of age, not only in America but worldwide, who have only known life in which they and their friends were in constant possession of a cell phone or PDA with photographic, and in fact video, capabilities. It is the same generation that will put the most private of details up on Facebook or MySpace, as well. This generation simply does not have the same expectation of privacy as the Greatest Generation — who wouldn't even talk about their most profound experiences until Ken Burns came knocking on their door. The law of privacy can't help but be affected by these new realities.

— Bob Latham is a partner at Jackson Walker. He can be reached at blatham@jw.com.