TACIR Releases Report on Civil Remedies for Invasion of Privacy

Nashville, TN – New technologies that make it easier to intrude on a person’s privacy without setting foot on their property are becoming cheaper and more pervasive, and traditional legal remedies for physical invasions of privacy do not explicitly protect against them.  Legislation proposed in Tennessee last year by state Representative Ryan Williams would have created a new right to sue someone who captured or attempted to capture an image, recording, or impression using high-tech camera lenses or audio recording equipment, regardless of whether the image or recording was published.

Other than this new right to sue, much of the conduct covered by the bill is already illegal in Tennessee, but the bill would have provided greater penalties against those who profit from the conduct prohibited by the bill if committed for a commercial purpose and would have created an explicit right to sue third parties that use the illegally made image, recording, or impression under certain circumstances.  The bill would also have required that a person who profited from selling an image or recording obtained in violation of the bill pay the money received to the person whose privacy was invaded.  A state public policy group, the Tennessee Advisory Commission on Intergovernmental Relations, which studied the bill, has released a report saying legislation may be necessary to ensure that damages can be recovered in those situations.  The report also says the bill would need to be changed to explicitly cover the use of drones to obtain photos or recordings.

The report discusses two constitutional concerns with the bill.  The first is that the bill included an amendment that would have exempted “established news media.”  This would likely be found unconstitutional based on Fourteenth Amendment equal protection issues as well as First Amendment “identity of the speaker” issues.  A second concern is that the bill would allow for penalties against publishers of truthful matters of public concern, which the Supreme Court has never allowed.  Although a lawsuit brought under those circumstances would likely fail on constitutional grounds, that possibility would not render the bill as a whole unconstitutional.

The full report is available on TACIR’s web site at http://www.tn.gov/tacir/PDF_FILES/Other_Issues/2015CivilRemediesforInvasionofPrivacy.pdf.  For more information, contact David Lewis, Research Manager, by email or by phone (615) 532-9713.

TACIR Mission

The Tennessee Advisory Commission on Intergovernmental Relations (TACIR) serves as a forum for the discussion and resolution of intergovernmental problems and provides high quality research support to state and local government officials to improve the overall quality of government in Tennessee and to improve the effectiveness of the intergovernmental system to better serve the citizens of Tennessee.