Tyler Clementi, privacy and the law

By Legal Eagle

[Cross posted at Fortnightly Review, the online journal founded by IPRIA and the CMCL at the University of Melbourne. Thanks to Megan Richardson and Vicki Huang for helpful comments.]

Many of the problems for privacy which were identified in the 1980s are now enlarged, or altered, by the development of the Internet. The speed, power, accessibility and storage capacity for personal information identifying an individual are now greatly increased. Some of the chief protections for privacy in the past arose from the sheer costs of retrieving personal information; the impermanency of the forms in which that information was stored; and the inconvenience experienced in procuring access (assuming that its existence was known). …These practical safeguards for privacy largely disappear in the digital age.

Michael Kirby, ‘Privacy in Cyberspace’ (1998) 21 University of New South Wales Law Journal 323

1. The Tyler Clementi case

The tragic case of Tyler Clementi raises questions about online technologies and the reach of privacy law. Briefly, Tyler Clementi was a freshman at Rutgers University in New Jersey. In September this year, his roommate, Dharun Ravi, and another dormmate, Molly Wei, were alleged to have placed a hidden camera in Clementi and Ravi’s room. They then proceeded to film Clementi’s sexual encounter with a man and stream it on the web, and attempted to film and stream another encounter. Ravi allegedly publicised the streaming on his Twitter account, and invited friends to watch the footage on iChat. Posts by Clementi indicate that he reported Ravi to a dorm adviser when he discovered what had happened. Tragically, on 22 September 2010, Clementi threw himself off George Washington Bridge in an apparent suicide.

Ravi and Wei have been charged with invasion of privacy. However, there are questions as to whether the law is up to dealing with this kind of case, as CNN reports:

New Jersey prosecutors were determining Friday whether additional charges, including bias, may be brought against Ravi and Wei.

”The initial focus of this investigation has been to determine who was responsible for remotely activating the camera in the dormitory room of the student and then transmitting the encounter on the internet,” Middlesex County Prosecutor Bruce J. Kaplan said.

”Now that two individuals have been charged with invasion of privacy, we will be making every effort to assess whether bias played a role in the incident, and, if so, we will bring appropriate charges,” Kaplan said in a statement.

What is clear, though, is that the Rutgers case has reignited debate over cyber incivility and whether tougher privacy laws are needed in a technologically advanced age when anyone can instantly disseminate information about another person with relative ease.

Newark attorney Henry Klingeman, who used to be a federal prosecutor, said that in many cases, it’s unlikely that anyone would serve significant jail time on invasion of privacy charges like Ravi and Wei are facing. He said federal laws are stronger, but most cases are tried in state courts.

Gathering or viewing sexual pictures without consent is a fourth-degree crime, and broadcasting them is a third-degree crime.

“State laws treat it like a nuisance, like graffiti on a street,” Klingeman said.

Bias laws deal with hate-crimes on the basis of race, sexual orientation and the like. The New York Times notes:

Though bias charges are generally hard to prove, lawyers and civil rights experts said, New Jersey has one of the toughest state laws on hate crimes. Its so-called bias intimidation law allows prosecutors to lodge separate charges and seek greater penalties against anyone who commits a crime against someone because of the victim’s sexual orientation. The law does not specify that the crime be violent.

Instead, these lawyers said, it was more likely that prosecutors would pursue bias charges.

Robert A. Mintz, a criminal defense lawyer in Newark and a former federal prosecutor, said, “What prosecutors will be looking at is whether this is a prank that had gone horribly wrong, or whether this was an orchestrated scheme to intimidate the victim based on his sexual orientation.”

Mr. Mintz said that prosecutors would likely review the students’ e-mail and Twitter messages, read any essays or blog entries, and interview friends about what they might have said. “If there’s an accumulation of circumstantial evidence, that can be very powerful,” he said.

If the students are charged and convicted of a hate crime, they could face up to 10 years in prison, instead of 5 years for the privacy charge alone. …

However, I want to focus on Australian law in this post. Specifically, I want to consider how the law would deal with this if a similar event occurred in Australia. There are three things I want to look at: whether the conduct would be tortious under Australian law, whether it would be a crime, and whether there would be any ‘hate crime’ additions to sentence. I will address each of these questions in turn.

2. Australian civil laws on observing, communicating and recording private material

The Commonwealth Privacy Act 1998 (Cth) primarily deals with obligations of privacy over information on the part of government organisations and large corporations, not individuals, and thus it does not cover a situation such as that faced by Clementi. Similarly, the Victorian Charter of Human Rights and Responsibilities recognises a right to privacy in Article 13, stating that a person has a right not to have their personal privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The Charter also prohibits unlawful attacks on a person’s reputation. However, the Charter only covers the acts of public authorities, not private persons.

Therefore, any tort of invasion of privacy must be established at common law. However, as I have noted in a previous post, Australia’s tort of invasion of privacy is at best, nascent. The High Court in ABC v Lenah Game Meats has made obiter comments concluding that Victoria Park Racing v Taylor does not preclude the development of a tort of invasion of privacy in Australia. Some lower courts have since recognised an action for invasion of privacy.

  • In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy”;
  • In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered);
  • In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy;
  • Also in 2008, in Giller v Procopets, the Victorian Court of Appeal applied breach of confidence law to a situation which bore some similarity to the present one. Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue. Breach of confidence was sufficient to protect the plaintiff’s interest in that case; and
  • In August 2010, the Victorian Law Reform Commission released the Surveillance in Public Places: Final Report in which it suggested that there should be two new statutory torts, one which deals with misuse of private information, and one which deals with intrusion upon seclusion (See Recommendation 22).

Possibly someone in Clementi’s position could establish a cause of action based on breach of confidence, as the Clementi case bears some similarity to Giller v Procopets, where the defendant showed videos of himself and the plaintiff engaging in sexual intercourse to the plaintiff’s friends and family, and attempted to show her employer (a more detailed post on the case here). A majority of the Victorian Court of Appeal found that he was liable for breach of confidence, and that she was entitled to aggravated damages for mental distress suffered as a result of that breach. Ashley JA dissented on a variety of issues, finding that while there was a breach of confidence, mental distress falling short of psychiatric injury was not compensible. This was following in the footsteps of English case law, which has increasingly been developing to protect privacy interests because of the operation of the European Convention on Human Rights, particularly Article 8. The disclosure of the video to others would trigger the action in breach of confidence. But it is arguable, perhaps, that the filming itself should give rise to liability for breach of privacy, regardless of whether there was disclosure.

There seems no doubt that the conduct of Ravi and Wei was a wrongful invasion of Clementi’s privacy. Indeed, applying Grosse v Purvis, an Australian judge could hang any civil action on a probable breach of various criminal provisions. The only question is whether such a tort is well-enough established to cover this kind of situation. It is precisely a case such as Clementi’s which shows the need for a tort of invasion of privacy. However, presently there is a gap in the law regarding cases where individuals breach the privacy of other individuals, and misuse private information.

The VLRC’s report on surveillance is particularly pertinent. In paragraphs 7.130 – 7.134, the VLRC says:

The second cause of action should deal with what is often referred to as intrusion upon seclusion or spatial privacy. This cause of action is primarily concerned with the use of a surveillance device, often surreptitiously, to view parts of a person not open to public gaze or to monitor conduct that a person believes to be private. Although this cause of action has not yet been developed by the courts in New Zealand and the UK, it may emerge in time because there can be serious invasions of privacy without any publication of personal information.

The act of intruding upon a person’s seclusion or invading their private space is in itself objectionable conduct. Whether a person had an entitlement to seclusion is best determined by the application of an objective test rather than by relying solely on the views of the person to whom the information relates. This approach means that the tribunal should consider values and attitudes widely held throughout the community before deciding whether the plaintiff had a reasonable expectation of privacy. Examples of the sort of things about which a person could have reasonable expectations of privacy are intimate parts of their body that are clothed and conversations that appear to be taking place well out of the earshot of others.

The gist of this cause of action is the intrusion upon a person’s seclusion or private space. Whether the intrusion is unacceptable is best determined by the application of an objective test rather than by relying solely upon the views of the person seeking seclusion. Again, this approach means that the tribunal should consider values and attitudes widely held throughout the community before deciding whether the conduct was highly offensive. Examples of the sort of behaviour that could fall within this cause of action because the intrusion upon seclusion was highly offensive to a reasonable person include engaging in ‘upskirting’ on public transport or covertly listening to a conversation between people sitting on an isolated park bench.

Both examples in the previous paragraph involve criminal conduct. Although the wrongdoer may be prosecuted for a criminal offence, there is no civil cause of action open to a person harmed by conduct of this nature. An action for breach of statutory duty is not available in these cases because of the limited reach of that cause of action.

The VLRC also recommends that Victoria adopt a tort of misuse of private information. The VLRC’s suggestions should be acted upon precisely so that a Clementi-like situation would give rise to recourse in the civil law if it occurred here.

The US already has a tort specifically dealing with intrusion upon seclusion, as outlined in §652B, Restatement (Second) of the Law of Torts (1977). Similarly, it also has a tort of publicity given to private life, as outlined in §652D of the same Restatement. Presumably Ravi and Wei are likely to have breached both of these torts.

In addition to a tort of invasion of privacy, the US also has a well established tort of intentional infliction of mental suffering. In Giller v Procopets, Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm. Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that someone who deliberately films an intimate act with an intent to embarrass or humiliate a roommate may be sued for intentional infliction of mental distress if US law was to be adopted in Australia, but at the moment, it remains a mere possibility.

3. Australian criminal law on observing, communicating and recording private material

In most Australian states, it is an offence to take photos of the genital and anal region in circumstances where the person who is being photographed could not reasonably expect to have been photographed. I will use Victoria as my example. Section 41A(1) of the Summary Offences Act 1966 (Vic) provides:

A person must not, with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed.
Penalty: 3 months imprisonment.

Section 41B(1) covers visual capture of images of intimate images:

A person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.
Penalty: 2 years imprisonment.

Finally, s 41C of the same Act provides that it is an offence to distribute such images:

A person who visually captures or has visually captured an image of another person’s genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image.
Penalty: 2 years imprisonment.

Each section has a note which states ‘[t]he reasonable expectation test is an objective one-what would a reasonable person in the position of the person being observed have expected. Section 41D sets out the defences to the offences under ss 41B and 41C.

It is suggested that conduct such as Ravi and Wei’s would likely to form an offence under ss 41A(1), 41B(1) and 41C, as they observed images of intimate moments between Clementi and another man with the aid of a device, they captured those images and they intentionally distributed it.

Conduct such as that undertaken by Ravi and Wei would also be a breach of  s 7(1) of the Surveillance Devices Act 1999 (Vic), which provides that person must not “knowingly install, use or maintain an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity.” Section 11(1) provides that a person must not knowingly communicate or publish a record of a private conversation or private activity that has been made as a direct or indirect result of the use of a surveillance device. Each of these offences may be penalised by, at maximum, a 2 year imprisonment sentence, a fine, or both.

The Racial and Religious Tolerance Act 2001 (Vic) also criminalises certain ‘hate crimes’. However, as the name of the Act suggests, it deals with only racial and religious intolerance. Thus, s 24 establishes that serious racial vilification is an offence, and s 25 establishes serious religious vilification is an offence. Both are punishable with imprisonment for 6 months, a fine or both. Clearly, conduct such as that which Clementi suffered would not be covered by either of these provisions. It is still unclear why Ravi and Wei allegedly undertook the actions that they did, but if it was a hate-crime, it was likely to be so on the basis of sexual orientation, not race or religion. In any case, vilification offences are never prosecuted in Australia because they occupy an uncomfortable middle ground between anti-discrimination law and criminal law.

Then the question is whether the potential sanctions imposed by the criminal law would be enough to punish conduct such as Ravi and Wei’s which resulted in a person committing suicide, and potentially constituted a hate-crime.

4. Australian hate-crime additions?

As noted above, if Ravi and Wei’s conduct is proven to be a hate-crime, then under New Jersey law this may result in an increased jail sentence. In some Australian states, there are provisions which may result in harsher penalties for hate crimes. The regimes vary from State to State (for a comprehensive survey, see Gail Mason, ‘Hate crime laws in Australia: Are they achieving their goals?‘ Paper presented at Sentencing Conference 2010, Canberra, 6 – 7 February 2010).

Victorian law now gives discretion to judges to deal with hate-crimes in sentencing (as does s 21A(2)(h) of the Crimes (Sentencing Procedure) Act (NSW) and s 6A of the Sentencing Act (NT)). Section 5(2) of the Sentencing Act 1991 (Vic) has recently been amended to insert sub-section (daaa), which states that a judge must have regard to “whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated.” As Mason notes at 6:

The power conferred on the sentencing court is discretionary and although such an aggravating factor must be taken into account, the court is not required to increase the sentence if such a motive is established…

This is in contrast with penalty enhancement regimes such as those in the US which require higher sentences if certain motives are established. Western Australia is the only Australian State to have enacted US-style penalty enhancement provisions in relation to offences of assault, serious bodily harm and the like committed “in circumstances of racial aggravation” (see eg ss 313, 317, 317A, 338B and 444, Criminal Code Act 1914 (WA). This would not cover hate-crimes on the basis of sexual orientation.

5. Conclusion

The Australian law which would deal with a Clementi-like situation is presently uncertain in the case of tort law. As the VLRC has noted, there is a gap in the law where private individuals are concerned, and the legislation is patchy, applying to some entities more than others. The criminal law provisions are scattered. There may be a chance that the sentence would be increased if the crime was hate based, but this is at the discretion of the judge. I very much hope that a situation like this does not happen in Australia, but I fear that with modern technology such invasions of privacy will only increase. The law needs to move swiftly to play catch up.

16 Comments

  1. Posted October 21, 2010 at 12:04 am | Permalink

    This post is in many respects the legal take on the situation described in Kate Harding’s post on bullying, and is in some respects a commentary on the bullying issues I raise here.

  2. PAUL WALTER
    Posted October 21, 2010 at 3:14 am | Permalink

    Yes you’d really like to get the two dolts up against a wall and shake the living daylights out of them, for a start. What an idiot subculture.

    Now to the substance of LE’s piece which In my case gets a reread later on account of my headache – can only offer brief impressions. Privacy seems something most observed in the breach – LE introduces a raft of examples, ranging from broadsheet media pursuing subjects too hard, to adolescent pranks gone wrong in the youth subculture and its new technologies. It seems strange that US authorities state, federal or whatever would miss applying applicable laws in curbing the disgusting behaviour exhibited in the case of the young fellow at Rutgers. I’d have thought manslaughter might have been a possibility, if given a try.

    Certainly what came out of the incident seems to have an attempt at harm on a basis of nothing better than prejudice – it certainly doesn’t seem that the likelihood of probable harm to the young dead man worried them, probably the opposite – and a good dose of the humiliation they inflicted would be a fair outcome – a few months in the big house – ie might develop in them a different and previously unconsidered idea of what privacy is, as far as they are concerned, idiots that they have been.

  3. PAUL WALTER
    Posted October 21, 2010 at 7:37 am | Permalink

    I’ll take on board the comment about Ravi’s personal subjectivity.
    I look back to my own youth and wonder how I survived my subjectivity and the stupidities that emerged in growing up, as with cars, for example.

  4. Posted October 21, 2010 at 7:59 am | Permalink

    LE: The manslaughter point is tricky, unless they knew (as room/dorm mates almost certainly would) there had been signs of depression by the victim or the victim had complained about other hassling by homophobes. If they /did/ know such things, a reasonable person would know that further bullying could well push the victim over the edge.

    In Victoria, we have the unusual problem of annotated police surveillance (Names/addresses of protesters who have committed no crime, together with photos taken in public) to private consortia – the desalination plant most obviously, and who knows what other information is given to other consortia. This information movement was known and agreed to by the politicians, but quarantined possibly because it had been collected by law enforcement, and the laws had never considered the intentional transfer of information out of the custody of enforcement agencies.

  5. desipis
    Posted October 21, 2010 at 9:39 am | Permalink

    I have mixed feelings about the notion of privacy. I can understand the social and emotional harm of privacy being violated, however I also feel that distribution of all information is of general benefit society.

    There are a couple of key issues I see with the attempts to codify privacy into law:

    Firstly, I think that issues of public interest need to explicitly be seen as justifying privacy breaches, much in the way that it can be a defense against defamation. The difficulty here, is that a determination of public interest may only be attainable after the breach of privacy has occurred. Is suspicion of public interest enough to justify breaching privacy? Such laws could have a chilling effect on investigative journalism.

    Secondly, as with many laws that rely on “consider values and attitudes widely held throughout the community”, the objective tests proposed by the VLRC could result in poor protection of cultural minorities. For example, the view that a persons face is private is not widely held throughout the community, but would arguably revealing the face would be an invasion of privacy for some Islamic women. For criminal prosecution I think that it should be based on whether the accused could reasonably be expected to realise their actions would be consider a breach of privacy by the victim. I don’t think it’s a good idea to let the courts define a universal code of socially acceptable behaviour.

    As for the hate-crime legislation, I don’t mind the notion of including such motivations for consideration in sentencing. Hateful attitudes towards particular classes of people certainly provides potential for individuals to be more disruptive to society and more difficult to rehabilitate. I dislike the idea of mandatory sentencing adjustments where such motivations have been established. I don’t think the criminal justice system should be used to provide sacrificial lambs on the basis of thought crime for broader social engineering purposes.

    My approach would be to take the existing legislation and extend it along the lines of the tort of “infliction of mental suffering” mentioned in the post. A new offense based on the original except with the condition that the actions resulted in harm and with a greater punishment. I’d keep the harm as broad as possible to ensure it covers things such as incited violence, although the harm would need to be somehow significant to warrant it being a separate offense.

  6. PAUL WALTER
    Posted October 21, 2010 at 1:15 pm | Permalink

    DB and Desipis have actually linked this to a parallel issue, at least here, as to msm and invasion of privacy.

    How do you allow responsible media to chase up legitimate issues, whilst at the same time avoiding giving open slather to tabloid press and TT/ACA type intrusions-as-bloodsport where nonissues are raised in ways that allow for a ratings friendly spectacle, involving the scapegoating or pillorying of misrepresented people lacking the resources to fight back against slander and libel?

    As DB more or less says, we are just a bit close to a state best described as corporatist, already.

  7. Posted October 23, 2010 at 10:01 am | Permalink

    LE

    I think it would be a very long bow to make these young people (or similar hypothetical young people in Victoria) criminally responsible in even a manslaughter way for the victim’s death which seems to me to involve the interposition of further criminal acts by him, even if he is beyond the reach of any punishment now.

    As for any tort, it doesn’t seem like one which would survive the death of the plaintiff, save possibly indirectly in some compensation for death to relatives action.

    I see this as more of a privacy-abuse crime than a hate-based crime, because its sting is not really in any particular hatred harboured by the perpetrators against the victim as in the hurt and humiliation which the breach of privacy exposed the victim to (quite predictably, I might add) by reason of ambient hatred and scorn of homosexuality in society at large. In other words, privacy is of special value to a young gay man because he fears (quite reasonably, if disproportionately) the hatred he will attract if his (private) secret is out. That hatred could even, or so he might think, come from within his own family. Even then, it’s not particularly to do with the privacy of his genital and anal areas as per the Victorian statute you cite, but in his interest in preserving as private information about himself the gender of the person or people with whom he was sharing them.

    So, over all, without any real information about the particular facts of the case, I really see this as a prank (even if in fact a criminal prank) gone horribly wrong. Was it the perpetrator’s or perpetrators’ fault that societal attitudes to sexuality and gay sexuality in particular are so terrible that the risk of harm or the actual harm caused were so great?

    In terms of harm on the ground and concrete human rights abuse, I have long thought that the treatment of gay adolescents is by far the most pressing issue in at least westernised societies, and one where teachers, education bureaucracies, etc, must be made to take a more protective role. That’s hard because such people are part of society and manifest the same general social prejudices or even just incapacity to see the suffering caused by them.

  8. Posted October 23, 2010 at 10:11 am | Permalink

    I just want to clarify, when I said “by far the most pressing issue” I mean on the LBTGI etc front. For example, agitation of question of marriage rights or felationship recognition mostly involves issues where adults can with a little effort arrange their own affairs satisfactorily to themselves. The importance of the symbolism of the “default” positions on marriage and relationships is more the way in which the lack of such default positions helps reinforce and justify the ambient attitudes as a status quo (think about the Catholic Church’s obsession with what is natural, who may adopt, who can be a priest, etc etc) which, especially in adolescence (when people are not particularly free to determine their social milieu) can have such deleterious effects.

  9. Posted October 23, 2010 at 2:17 pm | Permalink

    Oh dear I just reread my last comment and I see I mistyped “relationship.” I feel obliged to disclaim any double-entendrish intent.

  10. desipis
    Posted October 23, 2010 at 2:45 pm | Permalink

    I think these guys hate it and try to marginalise it because they don’t want to think about it in case they actually find it arousing.

    I think you’re taking too much of a literalistic interpretation here. From my experience the vocabulary selection is ritualistic in nature, originating in hyperbolic expression of general (not sexual) frustration. It’s now so abstracted through regular use as to be completely disconnected from the literal meaning, in the same way the expressions “Bullshit” and “Fuck him!” only have an etymological relationship with faeces or sex respectively.

    That’s not to say an audience, particularly teens suffering as a result of their sexuality, couldn’t hold and be harmed by a more literal interpretation of what’s being said.

  11. Posted October 23, 2010 at 2:47 pm | Permalink

    In terms of harm on the ground and concrete human rights abuse, I have long thought that the treatment of gay adolescents is by far the most pressing issue in at least westernised societies, and one where teachers, education bureaucracies, etc, must be made to take a more protective role. That’s hard because such people are part of society and manifest the same general social prejudices or even just incapacity to see the suffering caused by them.

    Yes, this. I spent just long enough in a classroom (and on playing fields, I was a PE teacher) to realise it. I once had a stand up, knock-down, drag-out blue with a teacher of a particular religious persuasion about his view of a (in this case) lesbian teenager. His view manifested in the classroom (hence the blue).

  12. Posted October 24, 2010 at 9:35 am | Permalink

    Preaching that tells adolescents struggling with identity and sexuality that they are not “proper” manifestations of human beings, are outside “nature” and “against God” are emotionally vicious in their effects and a form of bullying cowardice.

  13. Posted October 24, 2010 at 10:16 am | Permalink

    “Hear hear” to [email protected] The indoctrination in desirability of material posessions, implicit (I reckon) in commerce courses, is much more against the message of both Jesus and Mohammed than encouraging tolerance.

    Mind you, I note the greatest objections to the notion of ethics and comparative religious studies in schools come from the more dogmatic religious communities. Conservative politics and religion are soooo hypocritical when considering their claims to being more “godly” or “god-fearing” than the rest of us liberal infidels.

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