Should Google Street View blur cleavage now too?
A Canadian woman has successfully sued Google for including an image of her cleavage in Google Street View. A Montreal court ruled that this violation to Maria Grillo’s “modesty and dignity” should cost Google $2 250 (Grillo originally claimed $45 000 in compensation). Local publication, Le Journal de Montreal published the before and after images in its article:
Google invaded the privacy of a Montreal woman by showing her sitting outside of her house with “part of her breast exposed,” and must pay her compensation, a judge ruled this month.
According to a 17-page decision, Maria Pia Grillo suffered shock and embarrassment when she looked up her house using Google Maps’ Street View feature in 2009 and discovered an image that shows her leaning forward and exposing cleavage.
Grillo instituted proceedings against Google in 2011. Google agreed to blur the photo (as you can see from the image above) but refused to pay her compensation. Google’s argument was reportedly that Grillo was in a public space at the time. Google also denied that it was responsible for any emotional harm Grillo suffered as a result of the image.
In our terms, this case speaks largely to the question of whether Grillo had a legitimate expectation of privacy and whether Google exceeded that expectation she may have had by including this image in its Street View coverage. Although Google’s Street View cameras blurred out her face, the image retained enough detail to enable her to be identified. An interesting aspect of the court’s ruling, again according to GigaOm, is that the ‘judge also elected to adopt a “European approach” to deciding what should count as “personal information.”’ This suggests that the judge may have viewed Grillo’s physical features as personal information which would trigger privacy protections that protect disclosure of “personal information”.
The South African Constitutional Court case of Bernstein and Others v Bester NO and Others explored the idea of a “legitimate expectation of privacy”. Judge Ackerman said the following:
it seems to be a sensible approach to say that the scope of a person’s privacy extends a fortiori only to those aspects in regard to which a legitimate expectation of privacy can be harboured
A person’s legitimate expectation of privacy is contextual and circumstantial. A person may have a greater expectation of privacy in her home than she may have in a public square. A legitimate expectation of privacy has two components which were expressed in the same case as follows:
he or she has a subjective expectation of privacy and that the society has recognized that expectation as objectively reasonable.
The question here is whether Grillo would have had a legitimate expectation of privacy had this occurred in South Africa. I suspect not. Sitting on the steps of her home facing the street is hardly the ideal choice for someone who is concerned that members of the public may see Grillo’s cleavage and perhaps even share a photo of that with other people. Expanding a legitimate expectation of privacy to this image creates an unreasonable imbalance between Grillo’s subjective expectation of privacy and what would be objectively reasonable in the circumstances.
The situation would probably be different if, for example, a camera caught an image of Grillo in a state of undress inside her home where she had taken reasonable precautions to conceal herself or if a camera captured an image of someone exposed by an unexpectedly strong wind, perhaps. Grillo couldn’t reasonably claim that she couldn’t have considered the possibility that someone or some device may have captured an image of her sitting outside her home.
The judge’s argument was that simply being in a public space doesn’t negate your right to privacy and, to an extent, I agree, just not in this case.