However, a Japanese woman is reportedly so incensed by seeing private items on her washing line appear on the very public Google Street View that she has decided to sue the company.
The Telegraph references Japan’s Mainichi newspaper, which quoted the woman from district court proceedings: “I was overwhelmed with anxiety that I might be the target of a sex crime. It caused me to lose my job, and I had to change my residence.”
While this reaction might seem slightly drastic, the woman claims that she suffers from obsessive-compulsive disorder. She claims that the exposure of this underwear forced her to consider that Google was actually following her everywhere she went.
This story raises a few issues I addressed in Omniveillance.
First, one of the most famous privacy-in-public cases deals with underwear. In Daily Times Democrat v. Graham, 162 So. 2d 474, 477 (Ala. 1964), the Alabama Supreme Court held that in a case where a woman’s underwear was photographed while a compressed air jet in a fun-house blew up her skirt, that the photograph had “nothing of legitimate news value . . . [and] disclose[d] nothing as to which the public is entitled to be informed.” So Marilyn Monroe. However, in this case, the woman was wearing underwear, so this is obviously distinguishable 🙂
Second, while photographing underwear may not seem highly offensive to many (including the Japanese woman in this suit) it may seem simply offensive. That is why I proposed lowering the level of offensive from the Restatement’s “highly offensive” standard to “offensive.
The tort of public disclosure of private facts utilizes the “highly offensive to a reasonable person” standard.280 Since this standard was promulgated, society has become somewhat accustomed and desensitized to privacy invasions in light of reality television programs and celebrity gossip magazines.281
What was once highly offensive may now only be offensive, and what was once offensive, may not be anything out of the ordinary today. The “highly offensive” standard is simply “a difficult standard to satisfy.”282 In order to rise to the level of highly offensive, the conduct must be so intrusive that it would cause “mental suffering, shame or humiliation to a person of ordinary sensibilities.”283 Applying the current understanding of “highly offensive” to omniveillance, very few adjudicators would be able to find liability under the tort of public disclosure of private facts, as very little is highly offensive these days.284 Justice Carter’s fear in his dissent in Gill that “the blameless exposure of a portion of a naked body of a man or woman in a public place as the result of inefficient buttons, hooks or other clothes-holding devices could be freely photographed and widely published with complete immunity”285 has come to fruition.
A more realistic understanding of offensiveness is highly relevant in light of omniveillance, since often people are caught at their most embarrassing moments in the camera’s lens. Short of a person being photographed without clothes, or engaged in a lewd position, there is not much that is considered highly offensive in today’s society. However humiliating circumstances may be, if they fail to rise to the highly offensive level, no remedy is available. A photograph of a person inappropriately scratching himself in public may not qualify as highly offensive. But it would more likely satisfy an offensive standard. Similarly, a photograph of a couple passionately kissing may not be considered highly offensive, as this is standard fare on prime-time network television. But it may be considered offensive. If a person is readily identifiable, the level of offensiveness must increase. In the event that an omniveiller blurs a person’s face so that the individual is unidentifiable, the level of offensiveness drops to a nullity. By changing this standard for omniveillance to offensive, the trier of fact will be able to properly assess liability based on what is offensive to a reasonable person. The finder of fact would not be constrained by such a high threshold, as it is quite an unworkable standard in light of modern day insensitivity to grossly offensive images that are repeatedly broadcasted throughout the media. As a result, a victim of omniveillance has a legitimate chance at obtaining a remedy if the nature of the photograph is simply offensive.
This suit also adresses the inadequacy of remedies. Simply removing the photograph, which Google did, did not obviate the harm and injury the plaintiff suffered. Further, if this image was downloaded, it can live on in perpetuity on the web. The Internet never forgets.