In a now-infamous wardrobe malfunction in the course of the half-time entertainment for Super Bowl XXXVIII (2004), during a duet between Janet Jackson and Justin Timberlake, Timberlake fleetingly exposed Jackson’s right breast, which was adorned with a large nipple shield (the pair are pictured left immediately after the incident). In an exciting game, the New England Patriots beat the Carolina Panthers 32-29, but Jackson got all of the post-game media exposure (sorry!). She insisted afterwards that Timberlake removed more clothing than he should have done and that it was not her intention that it go as far as it did; but, in the face of public outrage, the Federal Communications Commission condemned it as a stunt, and the matter has even – briefly – reached the US Supreme Court (pdf).

Other wardrobe malfunctions can be even more embarassing. In Sinnott v Carlow Nationalist (already discussed on this blog here, here, here, here, here, and here), the Circuit Court and the High Court held that the publication by the Carlow Nationalist newspaper of a photograph of Mr Sinnott involved in a football match in which his private parts were exposed constituted an invasion of his privacy. On the one hand, this is counter-intuitive, since this exposure occurred in a public place, and it may be argued that there can be no reasonable expectation of privacy in public, since the fact of being in public constitutes consent (express or implied) to disclosure of what happens in public. On the other hand, there is an equally strong intuition that, notwithstanding that it occured in public, the unintended and embarrassing display of an intimate matter does not amount to consensual disclosure.

The decision in Sinnott illustrates that in Irish law, no less that in England (Theakston v MGN [2002] EWHC 137 (QB) (14 February 2002); Campbell v MGN [2004] 2 AC 457, [2004] UKHL 22 (6 May 2004)) and under the European Convention on Human Rights (Peck v UK 44647/98, (2003) 36 EHRR 719, [2003] ECHR 44 (28 January 2003); von Hannover v Germany 59320/00, (2005) 40 EHRR 1, [2004] ECHR 294 (24 June 2004)), it is no longer an answer (if it ever was) simply to say that the disclosure concerned something which took place in public. In other words, the law is increasingly recognising and protecting some right of privacy in public places. In Kane v Governor of Mountjoy Prison [1988] IR 757, Finlay CJ accepted for the purposes of argument that a “right of privacy may exist in an individual, even when travelling in the public streets and roads”. The law has now sufficiently evolved for any doubts Finlay CJ had on that score to be scotched.

In ‘Privacy in Public Places’ [2006] Cambridge Law Journal 606, Dr Nicole Moreham sought to give content to the right to privacy in public. In her view, the cases demonstrated four main factors to be considered when deciding whether a reasonable expectation of privacy exists in any particular case:

1. the plaintiff’s location: in Peck, the applicant sought out such seclusion as was possible, but was picked up by cctv; the falsification of a belief that a plaitiff or an aspect of a plaintiff’s person would be imperceptible to others explains why the use of devices to seek people out or to penetrate their clothes or other self-protection barriers, explains why cctv or the new US airport body scanners are so controversial, and certainly covers the situation in Sinnott;
2. the nature of the plaintiff’s activity; see Peck again; in Theakston, it mattered that the activity was sexually intimate, even though also caught on cctv; matters might go the other way if the plaintiff were seeking attention seeking attention; in particular, Moreham argues that a plaintiffs should be presumed to have a reasonable expectation of privacy if they are involuntarily experiencing an intimate, humiliating or traumatic experience in public, and this would plainly cover Sinnott:
   

   … people should therefore be presumed to have a reasonable expectation of privacy if they become physically exposed in a public place against their wishes (if, for example, Y’s skirt is suddenly blown up, her clothes are removed by medical officers or she is involved in an accident) or if they have to go into public spaces in order attend a traumatic event (such as a funeral of a loved one or the identification of a body) or to undertake some intimate procedure …

3. the way in which the information or photograph was obtained, especially if it were obtained surreptitiously, as in Creation Records v News Group Newspapers [1997] EWHC Ch 370 (25 April 1997), though this is not always determinative, as in Cogley v Radio Telifís Eireann [2005] 4 IR 79, [2005] IEHC 180 (8 June 2005); and
4. the extent to which the disclosure specifically focused on the plaintff; in Aubry v Editions Vice-Versa Inc, a photographer was held to have breached a young woman’s right privacy by publishing a photograph of her sitting on a step in front of a public building in Montreal becuase she was recognizable in the photograph.

This is a strong argument, but it is not unanswerable. So, for example, Heidi Reamer Anderson “The Mythical Right to Obscurity: A Pragmatic Defense of No Privacy in Public” (va SSRN) puts the contrary case. From the abstract:

… For decades, the answer has been: “There can be no privacy in that which is already public.” However, given recent technological developments (e.g., cell phone cameras and YouTube), some scholars suggest that the law sometimes should restrict the exposure of truthful information shared in public. Like the police who claim to need privacy to do their job, these scholars claim that people need privacy in public in order to feel dignified and to feel comfortable developing new ideas. In their pragmatic balance, these privacy-related needs trump exposure-related benefits.

In this Article, I argue that these scholars have overstated privacy-related harms and understated exposure-related benefits. After documenting and correcting these errors, I show how the proper balance favors exposure over privacy in all but a few special cases. Ultimately, I conclude that the law should continue to protect the mass exposure of truthful yet embarrassing information via the “no privacy in public” rule. Otherwise, we risk sacrificing the many benefits of exposure – including those resulting from exposure of police misconduct – on the altar of a mythical right to obscurity.