The Celebrity Photo-Hacking Scandal Shows Why Old Privacy Laws Need a Serious Update

An 80-year-old ruling that has become a pillar of privacy law in the United States doesn’t hold up in the Internet age.
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An 80-year-old ruling that has become a pillar of privacy law in the United States doesn’t hold up in the Internet age.
(Photo: TACstock1/Shutterstock)

(Photo: TACstock1/Shutterstock)

If you take a photo of yourself and it goes on the Internet, who has a right to the image? The fact that the stolen and recently leaked nude photos purportedly of Jennifer Lawrence, Kate Upton, Ariana Grande, and other celebrities are now public is, unfortunately, not terribly surprising. Those who move in the darker corners of the social Web—4chan, sections of Reddit—have ways of making seemingly any information they want to find immediately accessible to the Internet at large.

The photos, which are said to come from a stockpile of outré celebrity images, might have come from intentional hacking or simply trading between accomplices. Either way, hacking private accounts to gain access to photos is demonstrably illegal. One offender, Christopher Chaney, was just sentenced to 10 years in prison for forcing his way into the accounts of Scarlett Johansson and Mila Kunis, then leaking nude photos he found.

"When the incidents of a life are so public as to be spread upon a public record they come within the knowledge and into the possession of the public and cease to be private."

Morally, it’s clear that individual hackers have no right to the data they access. Legally, however, it’s much more difficult to control the spread of information on the Internet after it has gone public. In fact, the century-old historic precedents of U.S. privacy law, which haven’t changed since the advent of the Internet, are not particularly friendly to celebrities, especially female ones.

GABRIELLE DARLEY MELVIN LIVED a quiet, respectable life with her husband, Bernard Melvin, after the two were married in 1919. Before that, however, her biography is another story entirely. The unattached Gabrielle Darley had been a prostitute in Arizona, traveling with her pimp and lover, a man named Leonard Tropp. Tropp and Darley eventually moved to Los Angeles with the intent of settling down; Darley even gave Tropp money to buy a diamond wedding ring. Tropp bought a ring, not for Darley, but a different woman he actually planned to marry. Upon discovering her companion’s betrayals, Darley shot Tropp down on the street and was promptly arrested for murder in 1918.

Darley hired a brilliant lawyer who sold her as an innocent victim; she was eventually acquitted, left to start her life anew with Melvin. But the past didn’t stay buried for long. In 1925, a silent movie called The Red Kimonadramatized Melvin, née Darley’s, life, even using her full maiden name for the prostitute character and advertising itself as a true story. In the film’s pivotal scene, a veiled Darley sees Tropp secretly buying a ring. She gasps behind him, her eyes wide. The Tropp character turns, eyes her with disgust, and resumes talking to the jeweler. Darley backs up, pulls a gun from her flapper dress, and shoots him.

Though the actress playing her collapses in remorse over Tropp’s prone body, the film doesn’t exactly reflect kindly on the real-life Melvin’s background, which she took pains to hide amongst her new friends, who turned on her when the film came out. Melvin sued the filmmakers for $50,000, alleging the directors unlawfully appropriated her past and exposed it, ruining her reputation in the process.

In 1931, however, the Supreme Court of Los Angeles ruled in favor of the defendants, noting in the verdict that Melvin’s murder escapade “is a public record open to the perusal of all”: “When the incidents of a life are so public as to be spread upon a public record they come within the knowledge and into the possession of the public and cease to be private.” In other words, once it was public knowledge, Melvin didn’t own her own story anymore, no matter how much she wanted to move on.

OF COURSE, WE CAN’T equate an actual murder case with the non-crime of celebrities privately taking their own photos. The significance of Darley’s case and its relevance today is what happens to information in the public sphere—when it ceases “to be private,” in the language of the 1931 ruling, which has become one of the pillars of privacy law in the U.S. Here, “privacy rights generally lapse in public places,” as University of Washington professor Adam D. Moore writes in Privacy Rights: Moral and Legal Foundations.

Today, the Internet has become an indelible public place where just about any kind of information can be accessed. This goes as much for our own Facebook posts as ill-begotten images of celebrities. Little is private, and legal structures don’t exist for us to claim ownership over the data we make public simply by being online.

It’s easy to illustrate this absence. Anyone Googling Melvin’s name today, as her post-marriage friends might have if the Internet existed, will discover the truth she was attempting to hide. The Melvin ruling suggests that, once information makes its way online and into the public view, it will stay there, forever. Those suggesting Jennifer Lawrence should “own” the images and absorb them via the strength of her good PR or “control the narrative,” as Anne Helen Petersen writes at BuzzFeed, are confronting a powerful irony: Lawrence literally doesn’t own the images anymore.

But that doesn’t mean she shouldn’t.

What can we do about this situation? The European Union is rolling out a set of laws that enshrine the “Right to Be Forgotten”—an ability to request that inappropriate information be removed from the Internet, or at least made harder to access via public listings. If this existed in the U.S., Lawrence and others would have recourse not only to go after the hackers who made their private data public but to fight their actual proliferation online as well. Until then, no one, celebrity or civilian, is particularly safe.

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