Public Interest vs. Private Lives - Affording Public Figures Privacy, in the Digital Era: The Three Principles Filtering Model

Abstract

On the basis of reasoning that there exists a broad “right to know” information of public concern, freedom of speech generally overrides public figures’ right to privacy in the United States. The legal result reflects a situation in which public figures have almost no right to privacy even when published information is false. The new realm of the digital era brings new threats to public figure privacy that invokes the need to rethink this norm. We agree with the notion that public figures, by virtue of their position in society, waive their right to privacy when there is an important and legitimate purpose to informing the public of certain information. However, we depart from the U.S. legal norm, maintaining that, in general, public figures, under certain conditions, should be able to enjoy a right to privacy similar to that afforded to private citizens. In support of this proposition, we have developed a Three Principle Filtering Model, to be used in determining whether or not the rationale for publication of information about public figures is legitimate and hence should be allowed or prohibited.

The Three Principle Model requires an analysis of:

(1) the relevancy of the private information to the public and,

(2) whether access to the information is necessary for imparting knowledge, applying,

(3) a proportionality rule.

We argue that the current legal norm in the U.S. is excessively permissive, allowing virtually any publication about public figures and too often resulting in the exposure of private information to an extent that is neither reasonable nor legitimate. Our model, while accepting the public right to know (unlike other models) and better balances this right against competing values, also illuminates the issue of public figures from different angles than those examined by the U.S. Supreme Court. The Supreme Court rulings on public figures were shaped by defamation cases and sound mainly in First Amendment issues, emphasizing freedom of expression and freedom of the press. This perspective sets the public and the press as protagonists, whereas our model, focusing on the issue of privacy, locates individuals at the center of the discourse. Moreover, the prevailing privacy norm is based on liberal conceptions, whereas our approach is more grounded in personality theories that enable a “balloon” of privacy, even within public domains, including cyberspace. The Supreme Court did not account for the digital era when shaping its tests. Our model is not based on any specific jurisdiction and can be implemented worldwide.

We argue that when the public’s only interest is to invade privacy for the sake of curiosity (snooping, gossip or perverted behavior), whereas the information does not carry any valuable influence over the person looking for the information - publication of private information about public figures will not be justified. The joy people obtain from invading someone else’s private and intimate life does not justify the harm to that person’s privacy. Allowing this kind of invasion contradicts the fundamental values of freedom, autonomy, and dignity.

Our proposed model may help policy makers in the process of filtering between justified and unjustified publications of private information about public figures, while preserving some volume in their balloon of privacy.

Keywords: Privacy, Public Figure, Balloon Theory, Personality, Law and Economics