Defamation and Invasion of Privacy - Essay Example

First Amendment al Affiliation Defamation and invasion of privacy are intentional torts. This is because those who commit defamatory acts and illegally invade into the privacy of others need to be proven to have committed these acts intentionally. As a result of this, the acts are viewed as civil crimes and are punished through monetary punishment. Both defamation and invasion of privacy have long histories of being crimes and civil offenses. Defamation can be committed through oral means and is known as slander or through written means and is known as libel. However, libel qualifies as a more serious offense that slander despite the fact that false statements made orally may involve a lot of audience. This is because written words remain longer and have the capability of reaching far much more audience. There are various forms of privacy, while tort actions for invasion of privacy fall under four categories. These include the appropriation of identity, intrusion into a person’s affairs or seclusion, false light, and public disclosure of private facts. Due to the fact that privacy is an issue of international concern, various models of privacy protection have been adopted. These include comprehensive laws, sectoral laws, self-regulation, and technologies of privacy. International standard to privacy have also been established. This paper discusses defamation and privacy and legal issues surrounding them. Keywords: Defamation, Criminal Defamation, Privacy, Invasion of Privacy, International Standards, Laws Defamation and Invasion of Privacy Defamation Defamation is an intentional tort. This is because those who commit defamatory acts are proven to have done it deliberately, and are taken to have committed civil crimes that are punished through monetary compensation. Although its history is somewhat obscure, defamation has been a crime and civil offense for over seven hundred years in law. Civil actions taken for damages caused by defamation date back as far back as the thirteenth century in England. According to Gardner and Anderson (2010), “as early as 1275, the English Parliament enacted a libel statue that forbade false news and tales” (p. 227). Defamation was not only concerned with the way language was used, but also how it was perceived. This is because this reflected the intent of the speaker. Shuy points out that “a defamation claim cannot rest only on the receiver’s feelings about being defamed, but also (or even more so) on the way the sender’s message was said or written” (2010, p.11). Ancient societies, church courts, local courts, and king’s courts had laws against slander. The original thirteen states and colonies in America had laws regarding slander and libel. The defamation, libel, and slander laws that exist today have their origin in the ancient laws of England and the United States. Defamation consists of oral and written offenses referred to as slander and libel respectively, and it “is the offense of injuring the character or reputation of another by oral or written communication of false statements” (Gardner & Anderson, 2010, p. 227). However, for statements to be defamatory, they must be communicated to another individual other than the defamed individual. This is because statements made directly to an individual without involving a third person cannot damage his or her reputation. In the case of which defamatory act is more serious than the other, libel is more serious than slander. This is because written statements last longer than spoken ones despite the fact that spoken ones could sometimes involve a lot of audience. Courts often refer to slander as publication of information that is defamatory and that harms the reputation of a person in his or her community. For individuals who file lawsuits for actions of defamation, they are required to show that they were the targets of defamatory statements. Members of groups cannot file lawsuits for defamatory statements against their groups because such statements address more than one person. Heath (2001) supports this by stating that “for those who practice public relations, this element is essentially irrelevant because most of our communications are directed to groups and, therefore, almost always address more than just the person who might be defamed” (p. 251). To win a lawsuit in a defamation case, a plaintiff needs to prove a number of facts called elements of a defamation case. These include a defamatory statement, absence of truth, communicated statements, and damage. A defamatory statement carries the likelihood of harming the reputation of another person. To be defamatory, statements are required to be false and communicated to another individual other than the plaintiff, and in cases of slander, the plaintiff is required to show some form of damage caused a defamatory statement. Sometimes proof of malice is required. However, proof of injury by the plaintiff is sometimes not required due to the fact that some statements are considered too harsh by the society. These kinds of statements are referred to as slander per se. Beatty and Samuelson point out that “accusing the plaintiff of committing a serious crime, having a sexually transmitted disease, incompetence in her profession, or being an unchaste woman” (20007, p.131) are examples of kinds of slander where prove of damages is not required. Publication. It is one of the elements of defamation. The element of publication is achieved when a defamatory statement is communicated to a third party. According to Jennings, “an accountant who addresses a group of lawyers at a luncheon meeting and untruthfully states that another accounting firm has been involved in a securities fraud has met the publication element” (2010, p. 288). A statement directed at a specific person. False statements made about substantially small groups or specific individuals qualify as defamations. However, generalizations do not qualify as defamation. For example, a statement that all accountants are liars does not qualify to be defamatory. Jennings (2010) points out that the statement “all the Andersen audit partners who worked on the Enron accounts were dishonest” (p. 289) is categorical enough to be defamatory. Defamatory statements can also be made against a product. However, this kind of defamation is known as product disparagement. Injury or damages. Defamed individuals are required to prove injury or damages caused by defamatory statements made against them for example, loss of reputation or business. Malice. Proof of malice is required in defamation cases concerning public figures. Examples of public figures include politicians, actors, recording artists, and media personalities. In defamatory cases involving the element of malice, balance between protection offered to the media and the rights of the public figure is required. “Malice requires proof that the information was published or broadcast knowing that it was false or with reckless disregard for whether it was true or false” (Jennings, 2010, p. 290). Defenses to Defamation Truth, privileged speech, and opinion and analysis are the main defenses to defamation. Truth. Despite the fact that they are damaging or cause some level of injury, true statements are not defamatory. Privileged speech. Some speech, regardless of whether true or false, has substantial public interest making it privileged. An example of a privileged speech is a speech made by a member of Congress on the floor of a House or Senate. This is because free debate on issues is encouraged by a strong public policy. Criminal Defamation In the past, defamation was treated as a criminal offense in most countries. For example colonies and states in eighteenth and nineteenth century America treated defamation as a criminal offense. The strict defamation laws in America were adopted from England’s infamous Court of the Star Chamber. According to Zelezny (2010), “the Star Chamber, sitting without a jury, punished defamation by ordering money payments to the defamed party and by maiming and imprisoning the guilty. That the defamatory statements were true was no defense” (p. 118). Some countries however still treat it as a criminal offense although the trend is changing. In recent years, various countries have completely abolished criminal defamation laws and replaced them with civil defamation laws. This is because the criminal laws and consequent punishments were regarded as being too harsh and interfered with people’s freedom of expression to some extent. Many European nations still have written criminal defamation laws, although redress for defamation is carried out through civil defamation laws. This however does not mean that penalties for defamation today are not harsh; most of them are still harsh financially. What has been eliminated is the possibility of imprisonment or accused individuals undergoing harsh forms of punishment. Criminal defamation laws have been completely abolished in Ghana, Togo, Sri Lanka, Ukraine, Bosnia-Herzegovina, Georgia, and the Central African Republic (Raboy et al, 2008). Albania still imposes criminal defamation laws although it is about to decriminalize it. Special criminal law defense for public officials has been abolished in Honduras, Chile, Argentina, Peru, Paraguay, and Costa Rica. The government of Cambodia plans to soon decriminalize defamation. Most states in the United States hold criminal defamation laws as unconstitutional and for many years, no prosecutions have been conducted on the basis of defamation. Raboy et al (2008) points out that “in other countries, criminal defamation laws have fallen into virtual desuetude. There has been no successful attempt to bring a criminal prosecution for defamation in the United Kingdom for many years” (p. 111). Defamation and Freedom of Speech In ancient systems of government, speech was not as free as it is today in most nations. Freedom of speech was written as basic law in America in 1971, when the United States constitution was first amended (Magee, 2002). The aim of the freedom of speech was to protect certain types of speech and enable people to express themselves freely without fearing punishment. The law of defamation on the other hand is imposed to ensure that, despite the fact that people are allowed to freely express themselves through the freedom of speech, it should not dominate their interests. Reynolds points out that “the right to freedom of expression is restricted when the expressions, whether spoken or written, are untrue and cause harm to another person” (2009, p. 169). In certain circumstances, the freedom of speech is restricted by the government. This is in cases of content-based and content-neutral speech. According to Scaros, “content-based speech is speech where the actual content is what the government is trying to prevent from being uttered or written. Content-neutral speech is not about the content, but about its effect on people” (2011, p. 116). Invasion of Privacy The legal rights to privacy have evolved over the past one hundred and fifty years. Today, the rights to privacy are recognized by national constitutions and international treaties. Privacy falls into different categories namely: Bodily privacy. This is the power of an individual over his body, “to decide what goes into it and who can touch it, search it, take things from it, and make decisions affecting it” (Keenan, 2005, p. 4). Associational privacy. Everyone holds the right to associate with people and have relationships with them without others interfering or knowing about it. Data privacy. Keenan points out that this is “one’s power to determine who can collect and access information about oneself” (2005, p. 4). Communication privacy. This is a person’s power to make communications through mail, telephones, computers, in person, or through other means without others having to know what is communicated. Spatial privacy. This is the power of a person to control who can see, hear, or know about the happenings in a physical zone, for example a vehicle, home, or a hotel room. Just like defamation, invasion of privacy is an intentional tort. Everyone has a right to privacy and freedom from intrusive public eyes. Maxwell states that “invasion of privacy deals with the right of individuals to withhold themselves or their property from public scrutiny, if they so chose. It is the right to be let alone” (1993, p. 75). Tort actions for invasion of privacy fall under four categories. These include the appropriation of identity, intrusion into a person’s affairs or seclusion, false light, and public disclosure of private facts. Appropriation of identity. The use of a person’s picture, name, or likeness for business purposes without the permission of the individual qualifies as invasion of privacy. Intrusion into a person’s affairs or seclusion. Illegally searching someone’s things or home is invasion of privacy. According to Miller and Jentz (2010), “the tort has been held to extend to eavesdropping by wiretap, the unauthorized scanning of a bank account, compulsory blood testing, and window peeping” (p. 91). False light. Publicizing information that leaves a wrong or negative impression about a person also qualifies as invasion of privacy as well as defamation. Public disclosure of private facts. Despite the fact that information about an individual might be true, some of it is private and no one has the right to publicly disclose it. Therefore those that disclose such information interfere with the privacy of the affected party. Examples of such information include a person’s financial affairs or sex life. The reason behind this is because the facts might be embarrassing or objectionable. International privacy Privacy issues are a concern all over the world. Every nation is interested in protecting data about its citizens and the rights of those citizens. Marcella and Stucki point out that “the greatest concern for a given country that interacts for business with other countries, is how their citizen’s data and privacy is going to be protected by another country” (2003, p. 70). However, there are differences in the kinds of protection and application of privacy among nations. It is for this reason that internationals privacy policies and administration is required. The right to privacy began in America and was later adopted in Europe. This was mainly due to technological advances such as the use of the Internet that created concerns on privacy. Today, almost all nations in the world implicitly or explicitly identify privacy as a basic human right. Particular rights to access and manage one’s personal information are now included in recently drafted constitutions. Extensive privacy and data protection acts are supported by nearly all industrialized nations, while others are in the process of enacting laws regarding them. According to Marcella and Stucki, nations “are adopting these laws in many cases to address past governmental abuses, to promote electronic commerce, or to ensure compatibility with international standards developed by the European Union, the Council of Europe, and the Organization for Economic Cooperation and Development” (2003, p. 70). With the arrival of information technology in the 1960s and 1970s, concerns over privacy increased. The need for specific rules controlling the collection and management of personal information was brought about by the supervision capability of powerful computer systems. Although the expression of data protection in different declarations and laws differs, they all have the same requirements on personal information. This is in their requirements that personal information must be obtained in a lawful and fair manner, should be used only for the primary specific purpose, should be relevant, adequate, accurate, and accessible to the concerned party, as well as securely held and destroyed once purpose is accomplished. To ensure privacy protection, nations implement models of privacy protection. The models can however be contradictory or complementary depending on their application. Examples of models of privacy protection include comprehensive laws, sectoral laws, self-regulation, and technologies of privacy. Comprehensive laws. According to Marcella and Stucki, “in many countries around the world, there is a general law that governs the collection, use, and dissemination of personal information by both the public and private sectors” (2003, p. 71). Compliance is then established by an oversight body. The European Union and most countries using the data protection laws prefer this model. Sectoral laws. In favor of certain sectoral laws, some nations do not enact general data protection laws. An example is the United States, which has certain sectoral laws controlling financial privacy and video rental records. Different mechanisms are thus applied to administer such laws. However, this approach requires that each new technology gets its own legislation, and this slows down protections. “The lack of legal protections for medical and genetic information in the United States is a striking example of the limitations of sectoral laws” (Marcella & Stucki, 2003, p. 72). The lack of an oversight agency also imposes a problem. In most nations, sectoral laws offer more detailed protections for specific types of information, such as consumer credit records, police files, and telecommunications, thus complementing comprehensive legislation. Self-regulation. This is achieved through different modes of self-regulation established by companies and industries through self-policing and codes of practice. The chief problems with self-regulation are adequacy and enforcement. This can be seen through industry codes in various countries where there is either lack of enforcement or weak protections provided. Self-regulation is the model of privacy protection endorsed in Singapore, Japan, and the United States. Technologies of privacy. Different levels of privacy and security of communications can now be implemented through different programs and systems by users of both physical applications and the Internet. This is done through the use of smart cards, digital cash, encryption, proxy servers, and anonymous re-mailers. Privacy and data protection laws are adopted by nations for various reasons. The three main reasons are for the promotion of electronic commerce, guaranteeing that laws are compatible with Pan-European laws, and solutions for past injustices. Promotion of electronic commerce. Comprehensive laws ensure privacy of consumers’ information. With their personal information being transferred worldwide, most consumers feel uneasy about this fact. By establishing uniform rules, privacy laws promote electronic commerce. “Many countries, especially in Asia, have developed or are currently developing laws in an effort to promote electronic commerce” (Marcella & Stucki, 2003, p. 73). Guaranteeing that laws are compatible with Pan-European laws. The European Union Data Protection Directive and the Council of Europe Convention have established laws on privacy and data protection. The directive by the European Union demands an obligation to member states to safeguard the personal information of European citizens even in cases where “it is exported to, and processed in, countries outside the EU” (Marcella & Stucki, 2003, p. 73). This has placed pressure on nations outside Europe to pass privacy laws, while nations that fail to adopt these laws experience limitations in carrying on specific kinds of information flows especially if they comprise of sensitive data. Solutions for past injustices. In most nations, violations of privacy occurred in the past under authoritarian regimes. In order to solve such injustices, affected nations are adopting privacy and data protection laws. Examples of such nations are South Africa, and nations in South America and Central Europe. International Legal Standards of Privacy Over the past years, western legislatures have made numerous efforts looking for ways to control and create guidelines for protection of privacy. These efforts have been made at both international and national levels. Wang points out that “at the international level, initiatives have been taken in relation to the privacy aspects of changes in information handling practices, spurred on by new technological developments” (2011, p. 77). The right to privacy is acknowledged by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, although there is no universal standard of privacy in the mode of a universal legal instrument. Various international accords connected to privacy have established international agreements and national laws policy structures all over the world. These include the Council of Europe, the European Data Protection Directive, the Organization for Economic Cooperation and Development, the International Conference of Data protection and Privacy Commissioners, and the Asia Pacific Economic Cooperation, and other international instruments. Council of Europe. It includes the European Free Trade Area and the European Community. The Council of Europe through a convention of different states outlined a number of agreements to protect the rights of citizens. According to Walters, “the Council of Europe convention seeks to restrict the free flow of information across borders only to the extent strictly justified for the protection of other individual rights and freedoms” (2001, p. 119). European Data Protection Directive. This command was enacted in 1995 by the European Union in order to institute the protection of data privacy. According to the act, companies in nations with no strict data protection laws cannot be involved in handling consumer data. Organization for Economic Cooperation and Development. According to the DIANE Publishing Company, “the OECD guidelines were drafted in 1979 and adopted in September 1980 as the Guidelines on the protection of Privacy and Trans-border Flows of Personal Data” (1994, p. 88-89). This was in order to control trans-border data flows due to growing movements among nations. International Conference of Data Protection and Privacy Commissioners. This is a forum established in 1979 by data protection authorities. The authorities hold annual meetings each year. Gellman and Dixon point out that “the commissioners’ work together to enhance the independence, status, and powers of DPAs around the world. In recent years, the assembled commissioners passed resolutions on current privacy issues and on organizational issues” (2011, p. 92). Asia Pacific Economic Cooperation. This agreement was adopted in 2005. It provides a system for management of data flows across borders in the Asian pacific region and direction to economies that are cultivating privacy systems. International agreements on privacy standards hold a number of benefits. This is mainly because they promote self-regulatory privacy management and greater accord on legislation. Uniform contractual arrangements, easy resolution of disputes, and third party references of information management processes are possible with international privacy standards. Lehr and Pupillo “an international standard would also help guide the development of technologies, so that privacy concerns are an early design consideration, and not a hasty fix following a costly public relations mistake” (2002, p. 123). International standards on privacy also provide the foundation for promotion of awareness and educational tools. Conclusion In conclusion, defamation and invasion of privacy are intentional torts. This is because those who illegally invade into the privacy of others, and those who commit defamatory acts and proven to have done it deliberately are taken to have committed civil crimes that are punished through monetary compensation. It is for this reasons that defamation laws and international privacy rights have been established. 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