Authored by Jenn Behrens, Partner and Executive Vice President of Privacy<\/p>\n
The conflict between individual privacy and the explosion of the media\u2019s invasion into personal lives was emphasized over the last several months again through several incidents involving celebrities. First, the public witnessed the release of an athlete\u2019s personal medical records on Twitter and national television earlier this summer. Adam Schefter, a reporter for ESPN, tweeted an image of NFL player Jason Pierre-Paul\u2019s medical records in July of 2015. The image showed the medical details of a procedure resultant from an injury that happened during Pierre-Paul\u2019s private time, and provides explicit information about the procedure and associated identifiers. Making the issue worse, there appears to be another record from a different individual highlighted in the publicized image.<\/p>\n
Several issues arise with this incident. First and more narrowly construed, there are clear HIPAA (Health Insurance Portability and Accountability Act)<\/a> violations by someone in the health system releasing Pierre-Paul\u2019s medical records without his consent. HIPAA was codified in 1996, and further updated and enforced by the passage of the HITECH Act (Health Information Technology for Economic and Clinical Health Act)<\/a> in 2009 and the final omnibus rule in 2013. Pierre-Paul\u2019s injury occurred during his personal time and not during any official exercise or practice related to his NFL position. The medical care to repair the injury happened with a health care provider, which utilized electronic means of processing the protected health information. Schefter did not have the right to receive the information without the consent of Pierre-Paul, and the healthcare organization providing the treatment had neither the obligation nor the right to release any of the protected health information to the media. The healthcare organization is recognized under HIPAA as a \u201ccovered entity\u201d with special restrictions about the distribution and disclosure of medical information to people not performing treatment, operations or payment of health services for Pierre-Paul. Investigations into this will proceed and someone will be held accountable for violating Pierre-Paul\u2019s right to medical privacy.<\/p>\n As the summer came to a close last year, basketball\u2019s Michael Jordan offers another disturbing illustration of media in advertisement and marketing overreaching into a celebrity\u2019s privacy.\u00a0 Specifically, a grocery store was accused of using of Jordan\u2019s name for profit by a grocery store chain. In reaction, Jordan stated that \u201cI felt like it was a misuse of my likeness, my name,\u201d illustrating the disruption of the athlete\u2019s privacy for someone else\u2019s profit.\u00a0 The case was brought before a jury with Jordan highlighting that he felt violated on both a personal and professional level. Jordan emphasized that he needs \u201cto protect my likeness, my image \u2013 something I value very precisely.\u201d The misuse of Jordan\u2019s likeness in association with this advertisement without his knowledge, much less consent, is another example of an area of privacy that should be protected.<\/p>\n And, just this past weekend, the privacy of celebrities was again violated through the exploitation of their usage of media.\u00a0 Kim Kardashian West\u2019s physical privacy was jeopardized by malicious actors exploiting her digital information represented on one of her social media accounts. Various personalities have commented on whether Kardashian West invited the attack upon herself by using her media account with such frequency or with such fervor, however this places the fault of the attack back on Kardashian West \u2013 which smacks of blaming the victim for the actions of the actual criminals.\u00a0 Kardashian West agreed to share certain parts of her life and information with the public via this media technology \u2013 but specifically did not consent or authorize access to or rights to know about her private location.\u00a0 Using a social media account is not an open invitation for physical attacks, regardless of how splashy the content.<\/p>\n These privacy invasions of Jason Pierre-Paul, Michael Jordan, and Kim Kardashian West \u00a0highlight a new era of privacy concerns that may be even more severe and fundamental to a person\u2019s right to personal privacy than in the past. These cases of gross negligence for the boundaries between personal and private information and public information illustrate our lack of social norms in keeping private matters private. The perceived importance of a media story on an individual\u2019s private life outweighed the right for and intention of Pierre-Paul to keep his personal business private and serves as a prime example of how posting personal information and pictures on social media has become a prevalent practice by media and layperson, alike. The immediacy of potential privacy violations has grown overnight. Privacy scholars and practitioners are now scrambling to keep up in providing a framework of standards and practices for modern technological advances. There is a \u201cnew era of privacy risks and legal implications due to new \u2018instantaneous\u2019 media publications,\u201d of which we all need to be aware.<\/p>\n