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Part 1

The Hawaiian State Legislature recently considered a bill introduced by Senator Kalani English that would recognize the tort of constructive invasion of privacy.  The legislation is titled the “Steven Tyler Act” and has received an extraordinary amount of attention.  The bill borrows statutory language from a similar California law that targets photographers who aggressively follow and track celebrities with the aim of capturing their picture.  

The Hawaiian legislation is called the Steven Tyler Act because the Aerosmith singer pushed for the legislation after paparazzi photographed him from a boat while he was at his own house on Maui in a situation that most people would consider private.  

Maui is a paradise on earth and as a result many of the world’s wealthy and famous spend time here enjoying the sun, ocean and relaxed island attitude.  Local residents have always respected the privacy of visitors and celebrities alike and only recently have paparazzi begun to cause problems.  

The tort of invasion of privacy was originally introduced in 1888 in a treatise by Thomas M. Cooley when he identified a right “to be let alone.”  Two years later Samuel Warren and Louis Brandeis expanded the concept in a landmark law review article that indentified a right to privacy while criticizing aggressive media.  Within a few years, states began to recognize the cause of action and now many courts from jurisdictions around the country have validated privacy suits.  

The state of Hawaii recognized a right to privacy in a series of steps, beginning with the case of Fergerstrom v. Hawaiian Ocean View Estates.  Two Constitutional amendments followed in 1968 and 1978 that further delineated a right to privacy against both the government and individuals.  

The world was irate in 1997 after Princess Diana was killed in a high-speed car chase purportedly attempting to evade paparazzi.  Soon after, California introduced a law designed to create new privacy protections for celebrities.  The state introduced additional laws strengthening its anti-paparazzi stance three subsequent times and to date, has some of the strongest privacy laws in the nation.  

The effect of the newly proposed Hawaiian legislation would be two-fold.  The bill would confirm in statute the right to sue for an invasion of privacy and would also join California’s law at the forefront of privacy legislation by focusing the lens of the tort to address modern technology.  

The field of privacy torts gives us a rare and fascinating study of how new torts are created and adopted.  When the new privacy Hawaiian legislation was introduced, dire predictions erupted forecasting an avalanche of lawsuits.  With a careful look at the history of this tort and its interaction with the First Amendment, we will see why excessive litigation is unlikely to happen and why this area of law is ripe for legislation and clarification.  We will continue exploring this topic and the proposed Hawaiian law in a series of blog posts about the Invasion of Privacy.  

Part 2
The public’s endless fascination with the private details of the rich, the famous and the unusual has driven aggressive journalism tactics to extremes that the drafters of our Constitution would never have imagined when they contemplated freedoms of the press.  
 Modern photojournalism began in the United States in the 1880’s and it is no coincidence that privacy concerns started almost immediately.  In 1890, two lawyers, Samuel Warren and Louis Brandeis, published a law review article titled “The Right to Privacy” primarily to address concerns about aggressive journalists publishing information that people considered private.  The essay was directed at gossip and society sections of newspapers.  
 “Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops."
 The article was extremely influential and began the gradual recognition of a new privacy tort but 120 years later the tension between dueling freedoms of the press and individual privacy has never been greater.  
 Caselaw, scholarly analysis and legislation have defined the parameters of the now almost universally accepted tort of invasion of privacy and broken it field into four categories:  1) “intrusion of solitude”; 2) “public disclosure of private facts”; 3) “false light” and 4) “appropriation.”  For this series, we will focus on “public disclosure of private facts” which is the main area of this tort applicable to restricting modern paparazzi.  
 Hawaiian Privacy History
 In 1968, the Hawaii Supreme Court recognized the broad concept of “invasion of privacy” by allowing a lawsuit for the tort of appropriation while hinting that other aspects of the tort may exist.  Also in 1968, the Hawaii constitutional convention debated invasions of privacy and added new language in the Hawaii Constitution.  The intent of the language was not entirely clear, however and the Hawaii Supreme Court only extended the new protections to government intrusions and not those by private citizens.  
 In 1978, Hawaii held another constitutional convention and clarified the state’s intent to recognize the tort of invasion of privacy by adding a new provision specifically addressing the issue.  The convention language left no doubt as to its objective when it stated that “[i]n short, this right of privacy includes the right on an individual to tell the world to “mind your own business.”  Since 1978, Hawaiian case law addressing invasion of privacy has consistently confirmed the widely recognized four branches of the “invasion of privacy” tort.  
 It is worthwhile at this point to note that invasion of privacy by the government and invasion of privacy by another citizen are two entirely different matters.  Government intrusion is specifically addressed in the Fourth Amendment to the U.S. Constitution and pertains to situations in criminal cases when police are searching for evidence.  The term “reasonable expectation of privacy” was coined in the famous U.S. Supreme Court case of Katz v. United States while discussing a governmental search and seizure.  
 Invasion of privacy by a private person who is not acting for the government refers to the common law right to sue and recover damages.  The phrase “reasonable expectation of privacy” has often been borrowed from the criminal context and applied to civil cases because of its ability to concisely articulate an inherent right that we all feel.  
 The new privacy legislation introduced by Senator Kalani English this year is a new and fascinating chapter in the invasion of privacy story.  As we continue the privacy series, we will consider the tort of “constructive invasion of privacy” in more detail and its relationship to the current four-part privacy tort.