While nothing new by now, the practice of recording images or video of others without their knowledge and then disseminating the content on a worldwide basis has come under particular scrutiny over the past week.  The tragic story of the Rutgers University student (as reported by ABC News here, where I first learned of it) has become the basis of a worldwide conversation regarding privacy and civility.   Also in the news this week was the story reported by Jon Yates of the Chicago Tribune of a Chicago woman who discovered a photo of herself on a website called People of Public Transit and the woman’s efforts (and Jon Yates’ efforts) to get the photo removed from the site.

While videotaping someone in their own living quarters behind locked doors may seem a clear invasion of privacy, the capturing of someone’s image while that person is in a public space is generally not an invasion of privacy, as someone on a sidewalk or on a public transit bus would not have an expectation of privacy.  Given the modern day implications of that lack of a right to privacy–witness the People of Public Transit website and many others like it–one could argue that there is something missing in the law.

This issue was well framed by the Chicago woman in that story noted above when she said,  “Most people walking around just want to be left alone. That’s the nature of living in cities. It seems kind of peculiar to hold people up for ridicule.”

In other words, while we might expect to wind up in the background of someone else’s vacation video of a tourist site, some might argue that it seems improper if the video winds up going viral because it happened to catch us tripping and injuring ourselves.  While those who knowingly post their own foolish exploits for the world to see may garner less sympathy, any list of the most viral videos of all time (such as MSNBC’s, here) seems to have a Star Wars Kid for every Numa Numa Guy.

Another element of this discussion is the right of publicity and the potential for a new federal law.  Traditionally, the right of publicity–which varies from state to state–addresses an individual’s right to control the exploitation of their image, name, and identity.  In some states the right of publicity is limited to situations in which the misappropriation of the individual’s identity has value–meaning that the individual (usually a celebrity of some kind) has previously commercially exploited his/her identity.  Given the public’s apparent thirst for People of Public Transit, People of Walmart, FAILBlog, and similar sites, perhaps the time is right for a discussion about the expansion of privacy rights, through a federal law or expanded state laws, to address unintentional and unwanted celebrity.