The Dark Side of Social Media
Two strangers sitting next to each other on a transcontinental flight strike up a conversation and end up falling in love. This is the stuff of fairy tales, right? Not according to one passenger on a flight from New York to Dallas earlier this summer. What started out with a stranger asking for a favor to switch seats ended up becoming a viral social media saga of a "whirlwind romance," scandalously branded as #PlaneBae. For those unfamiliar with this story, the #PlaneBae saga consisted of a series of Instagram stories and tweets posted by an Alaska Airlines Passenger, who recorded what she portrayed to be a budding romance unfolding in the row in front of her. Over the course of the six-hour flight, the passenger posted to Instagram® and Twitter® a live minute-to-minute narration of the two seatmates' interactions. By the end of the flight, the passenger had managed to: 1) take pictures of the seatmates sharing family photos, 2) relay the conversation they had about their moms, 3) share their food orders, 4) speculate about their body language, and 5) note how both seatmates went to the bathroom at the same time. Further, the passenger learned personal details about the seatmates' lives, such as how they were both personal trainers and vegetarians. All of this took place apparently without the two seatmates' knowledge or consent. The passenger's initial tweet[1] garnered more than 300,000 retweets and 800,000-plus likes. To put that into perspective, the United States Supreme Court tweet containing a link to its decision on the Masterpiece Cakeshop case– a case with significant First Amendment, civil rights, and federal policy implications– was retweeted only eighty-three times.[2]
When the plane finally landed, the passenger took a final shot of the seatmates–taking care not to capture the pair's faces– in what looked like a fairytale ending. The Twitter® frenzy that followed triggered national attention, and this story was featured in countless media outlets such as "Good Morning America" and the "Today" show. Although this story seemed to captivate audiences everywhere, the female seatmate who was the subject of the Twitter® story did not share the same sentiment. The mysterious woman, who asked that her name not be released by media outlets, did not participate in any interviews. Nevertheless, after her first name was revealed by media outlets and people began to scope her out on the Internet, she deleted her social media accounts. In fact, she released a statement through her lawyer, describing #PlaneBae not as a romance, but as a "digital-age cautionary tale about privacy, identity, ethics and consent." She states that she was photographed and recorded without her consent by individuals who "speculated unfairly about my private conduct." She goes on to say that "[s]trangers publicly discussed my private life based on patently false information. I have been doxxed, shamed, insulted and harassed. Voyeurs have come looking for me online and in the real world." The woman asked that people respect her privacy and desire to remain anonymous.
Which leads us to some challenging questions: in an age of camera phones and social media, what expectations for privacy do we actually have in public places? What are our legal rights as the photographer? What are our legal rights as the subject of the photograph? Has society's definition of privacy changed since the advent of technology? What is considered a public space? Although a blog of this length cannot possibly answer all of these questions, I attempt to scratch the surface and hopefully inspire some meaningful self-reflection and dialogue.
Privacy Law
In his famous dissent in Olmstead v. United States, Justice Louis Brandeis defines privacy as "the right to be let alone," describing this right as "the most comprehensive of rights and the right most valued by civilized men."[3] In many states including Ohio, there are no statutes that directly address the right of privacy.[4] Nor does the United States Constitution directly address this right; rather, the right to privacy has been established through common law (i.e., court decisions). Ohio is one state that recognizes all four common law invasion of privacy claims.[5] The Ohio Supreme Court first recognized three variations of the invasion of privacy claim in Housh v. Peth, 165 Ohio St. 35, 35, 133 N.E.2d 340, 341 (1956) (syllabus, ¶ 2). These include "[1] the unwarranted appropriation or exploitation of one's personality, [2] the publicizing of one's private affairs with which the public has no legitimate concern, [and, 3] the wrongful intrusion into one's private activities." Id. The Ohio Supreme Court recognized the fourth privacy tort, "false-light invasion of privacy," in Welling v. Weinfeld, 113 Ohio St. 3d 464, 473, 866 N.E.2d 1051, 1059 (2007). A detailed breakdown of the elements of each claim can be found here.
Publication of Private Facts (The "Publicity" Tort)
The facts of this particular case may implicate more than one invasion of privacy tort. However, it is unlikely that the mysterious woman in this saga would be successful on any privacy claim. I will focus on the second theory of invasion of privacy, "the publicizing of one's private affairs with which the public has no legitimate concern," to illustrate this difficult standard. The five elements of this tort are as follows: "(1) there must be publicity, i.e., the disclosure must be of a public nature, not private; (2) the facts disclosed must be those concerning the private life of an individual, not her public life; (3) the matter publicized must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) the publication must have been made intentionally, not negligently; and (5) the matter publicized must not be a legitimate concern to the public." Seta v. Reading Rock, Inc., 100 Ohio App. 3d 731, 740, 654 N.E.2d 1061, 1067 (1995) (internal quotation marks and citation omitted). An analysis of prior caselaw suggests that the facts of this case do not satisfy these five elements. Thus, the female seatmate in our #PlaneBae scenario likely has an uphill battle if she decides to take legal action against the passenger who photographed and tweeted about her.
Element One
"Publicity" is defined as "communicating the matter to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."[6] With 300,000 retweets and 800,000 likes, it is safe to say that these photographs and minute-by-minute updates satisfy the common meaning of "communicated to the public at large."
Element Two
Under the second element, the facts disclosed must be those concerning the private life of an individual, not her public life. "There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public, such as matters of public record about her birth or marriage date, or matters that the plaintiff leaves open to the public eye, such as kissing his spouse in public."[7] In this case, the passenger tweeted about the two seatmates' conversation, which included information about their eating habits, their professions, and their mothers. However, in today's Internet age, what can we really consider as private information? Everything from an individual's age, date of birth, and address, to her occupation, education, and criminal record can be found in less than ten minutes using any Internet search engine. On top of this information that is already public, how much more can we learn about an individual by viewing her social media account? If all of the information that the Alaska Airlines passenger tweeted to her followers was already accessible from the seatmates' Facebook® accounts, is it really considered private? Does it make a difference if the seatmates' Facebook® accounts were on private or public mode? Is information considered less private if an individual's Facebook® posts and photos are viewable by "friends of friends" or the "public," as compared to only "friends"? Our expectation of privacy is constantly evolving, and what may have been considered private yesterday may no longer be considered private today or tomorrow.
In Killilea v. Sears, Roebuck & Co.,[8] kissing a spouse in public is not considered one's private affairs. Photographs of the two seatmates with their arms touching or walking side by side seem to be a lot less intrusive than a photograph of someone kissing his or her spouse and is likely not considered one's private affairs.
Finally, does it make a difference that these two seatmates were riding in the cabin section of a public plane? With the average seat pitch[9] around thirty to thirty-one inches, and an average width of seventeen inches between two Coach armrests, an individual should automatically be on alert that her conversation may be overheard by someone other than the intended recipient of the information. Further, any individual who takes public transportation should instantly be put on notice that their privacy is minimized, by the mere fact that the transportation is public.
Elements Three and Four
The next two elements of the publicity tort are: (3) the matter publicized must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities, and (4) the publication must have been made intentionally, not negligently. Although the passenger clearly posted live updates and photos intentionally, whether the posts and photographs were "highly offensive or objectionable" is debatable. In Scroggins v. Bill Furst Florist & Greenhouse, Inc.,[10] the court found that a Polaroid photo of a plaintiff wearing lingerie, "holding a white teddy bear with a red heart, and . . . smiling," was not considered "highly offensive or objectionable to a person of ordinary sensibilities." The photo only showed the plaintiff from her waist up, and her own son indicated that the photo was neither "vulgar" nor "nasty."[11]
In this case, the photos taken by the airline passenger arguably did not rise to the level of embarrassment as the photo in Scroggins. In every photo, the seatmates' faces were scribbled out, or the photos only revealed the seatmates' backsides. Would a reasonable person of ordinary sensibilities find these photos highly offensive or objectionable? The verdict seems to be split on this one. Whereas many people found these photos and tweets to be absolutely delightful, [12] others found them to be disturbing and very concerning.[13] Additionally, whereas the female seatmate alleged that she has been "doxxed, shamed, insulted and harassed," the male seatmate participated enthusiastically in interviews and seemed to embrace the limelight. These conflicting reactions suggest that men and women have quite different experiences with social media, and consequently may have very different standards of "offensiveness."
Element Five
The fifth and final element of the publicity tort is "the matter publicized must not be a legitimate concern to the public." Social media has seemed to erode that once sacred division between one's personal and private life. #PlaneBae is just the latest instance of individuals projecting romantic narratives onto strangers in order to exploit them for content and personal attention. As a society, we must earnestly ask ourselves, does such an invasive interest in the lives of strangers merit increased regulation when weighed against many other pressing matters of our time?
Conclusion
If past caselaw is any indication of where the law stands today, it appears that an individual in the position of the female seatmate would have an uphill battle convincing a judge or jury that her privacy has been violated. Whether the information is private is an important question to ask. However, an even more significant question we must ask ourselves as a society is should this information be private? What if the female seatmate was in an abusive relationship, or engaged to another man? Coupled with the Alaska Airlines flight information, do photos of the woman's hair color, stature, and clothing, as well as details such as her occupation and diet, provide enough information for her to be identified by friends, family, coworkers, adversaries, and strangers? These are serious questions we must reflect upon in an age of technology, social media, and viral newsfeeds. Stories like this one remind us that privacy in an age of social media can be easily compromised, and people should think twice before they post or share content without the consent of the subject of their story.
[1] The passenger has since removed her fifty-plus thread of tweets that she initially posted to her Twitter® account.
[2] Masterpiece Cakeshop owner Jack Phillips recently filed another lawsuit in the United States District Court for the District of Colorado, alleging "the state 'has been on a crusade to crush' him because state officials 'despise what he believes and how he practices his faith.'" See Clare Foran and Marlena Baldacci, "Masterpiece Cakeshop owner sues Colorado governor, claiming religious 'persecution,'" CNN (Aug. 15, 2018, 8:12 PM),.
[3] Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572 (1928) (Brandeis, J., dissenting).
[4] However, publishing highly compromising, offensive, objectionable, sensitive, and embarrassing photographs and videos on the Internet or disseminating them to the public at large in other ways without permission is a crime under Ohio law pursuant to Ohio Rev. Code § 2917.21(B)(2) ("No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening, or harassing another person.").
[5] Not all states recognize all four common law invasion of privacy claims, so it is important to check with your state's laws to understand your rights as both the photographer and subject of the photograph.
[6] Scroggins v. Bill Furst Florist & Greenhouse, Inc., No. 19519, 2004 Ohio App. LEXIS 75, at *14 (Montgomery Cty. Jan. 9, 2004) (internal quotation marks and citation omitted). Compare "publicity" to "publication," which is a term of art "used in connection with liability for defamation as meaning any communication by the defendant to a third person." Id.
[7] Killilea v. Sears, Roebuck & Co., 27 Ohio App. 3d 163, 166–67, 499 N.E.2d 1291, 1295 (1985).
[8] Id.
[9] The seat pitch on an airline is the distance between a row of seats; i.e., the measurement from the same position on two seats, one behind the other.
[10] Supra, note 6 at *3.
[11] Id. at *3.
[12]@JohnLegere tweeted: ". . . that story was amazing!! If you're a @TMobile customer, I'd love to credit you for the extra wifi, because that was definitely worth it!! #TmobileWingman." that story was amazing!!
[13] @cadlymack tweeted: "Not to rain on everyone’s parade, but if a stranger spied on me for an entire flight, took photos, and posted them on social media, I’d be pretty devastated. The whole planebae thing kinda horrified me??" Several individuals expressed this similar sentiment.
