(Co-authored with Evan Selinger and cross-posted at Forbes).
According to NPR, 300 plus teenagers broke into former NFL player Brian Holloway’s vacation home, causing massive damage and showcasing their exploits on social media. In response, Holloway created a website,helpmesave300.com, that collects the alleged culprits’ social media posts. He claims this repository has enabled teens to be identified, and that the growing list of names is “being turned over to the sheriffs (sic) department to assist them to verify and identify the facts.”
Far from being penitent and wanting to make amends, the teens’ parents allegedly are outraged over this name and shame tactic. The NY Post reports some are “threatening to sue” Holloway for the public outing. (Now, there might be reasons to be skeptical of Holloway’s motives. But we’re bracketing those concerns to focus on the core privacy issue at stake.)
It’s possible that the parents are considering recourse through the tort of public disclosure of private facts. If so, they would have to allege that Holloway publicized private information that would highly offend a reasonable person and which isn’t a legitimate matter of public concern.
We doubt such a suit would have much merit.
The disclosure tort is a substantially constrained remedy. In this case, if the social media posts of the kids collected on helpmesave300.com are all publicly available, it’s doubtful they could be considered “private” for purposes of establishing liability under the tort.
Understandably, parents might wish the matter was kept quiet. But the interest in protecting a kid’s reputation from inquisitive colleges and jobs would not likely outweigh Holloway’s free speech rights in this context.
The most important question, here, is not legal, but ethical. Do the kids deserve to remain more obscure? That is, is it unfair of Holloway to draw attention to their exploits with his site? Indeed, the site can provide a digital Scarlett Letter long after the kids delete the evidence from their accounts.
We suspect many people would answer this question with a resounding, “No!” The kids showed no regard for public property. And, their Twitter brags demonstrated profoundly flawed judgment. Arguably, Holloway’s response isproportionate to the infraction. In his insightful 2007 book The Future of Reputation, Daniel Solove commented on the importance of proportionality in shaming as punishment:
Generally, we believe that punishment should be proportionate to the crime. The problem with Internet norm enforcement is that it often spirals out of control. Offenses that deserve a mild scolding are punished with digital equivalent to branding. When someone makes a grievous mistake, he or she ought to be punished. But disproportionate punishment risks creation of an oppressive society. Even desirable norms can be enforced to an excessive degree. Internet shaming has a tendency to become overzealous. Often punishments don’t fit the crime, and people’s lives can be ruined for relatively minor transgressions.
But even if the court of public opinion validates Holloway’s attempts to identify the wrongdoers, we believe a deeper discussion of similar situations is warranted. As time progresses, the question of how much obscurity people deserve will become an increasingly debated topic, both socially and legally.
As a thought experiment, let’s change the facts a bit and imagine that an uncle invites his teenage nephew and a bunch of his teenage friends for a weekend away in an expensive vacation home. For the most part, the kids act respectfully. They watch movies, play video games, and engage in various other commonplace activities.
Of course, since this is a 2013 scenario, the kids continually post images and descriptions of their gathering to social media. And herein lies the problem. All of the posts turn out to be boring, except for one unfortunate, game-changing outlier.
Let’s say one of the kids accidentally breaks the uncle’s treasured and highly expensive vase, and, embarrassed, disposes of the evidence. Inadvertently the disappearance act gets captured on one of the online videos posted on Twitter.
What if the uncle learns about the damage and the incriminating evidence? For starters, he might confront his nephew and ask for the offending kid’s full name. But if the nephew is loyal, he won’t rat out his friend, triggering the beginning of act two. The uncle could take a page from the Holloway playbook and create a help-me-find-the-perp website and broadcast the URL far and wide.
Should we feel differently about this case? Specifically, is the uncle’s responsedisproportionate to the damage? If so, why, and what metric can we rely on to answer this question? From whose perspective do we gauge proportionality? The uncle, the teens, or a hypothetical “reasonable person?”
If the uncle overreacted, what should happen next? Since legal options aren’t a good solution (even more pervasive legislation like California’s new “eraser law” wouldn’t help, as the issue doesn’t concern the teens’ own social media pages) should concerned citizens—the teens’ friends and family, or even the uncle’s friends and family—step in and try to get him to take the page down? Perhaps they could start by making a reasoned plea, but shift to tactics of shaming if that doesn’t work? And, what about the teens? Should they engage in a counter-shaming campaign as retribution, aimed at highlighting various obscure and potentially embarrassing aspects of the uncle’s life? Or, should the teens worry about the “Streisand Effect” and ignore the whole situation in the hopes that by doing so everyone loses interest and the information fades back into obscurity?
While legal remedies are hardly appropriate in every instance where one erodes the obscurity of another, we can look to the role proportionality plays in the law to guide us in analyzing the ethics of the situation. Proportional responses are a staple in various areas of the law, including tort damages, sentencing for crimes, the discovery process, the privilege of self-defense, and administrative fines. The goal of proportionality is to strike a balanced and correlated relationship between the severity of a response with the nature of a wrongful act. As individuals are increasingly able to shine a spotlight on what other people do, the concept of a proportional response will be more important than ever.
What do you think about proportionality and obscurity in cases like these? Please let us know in the Comments.