Anokhy Desai, a law student at University of Pittsburgh School of law and information security policy masters student at Carnegie Mellon University, and Carina Mendola, a law student at University of Pittsburgh School of Law, discuss the privacy and publicity questions involved the hit Netflix show Bridgerton...
“Dear reader, if there is a scandal, I shall uncover it.”
Bridgerton, the newest hit show on Netflix, follows the Bridgerton family’s forays in high society Regency-era London, complete with debutantes, royal balls, steamy romance, and plenty of gossip. Key to the story is the mysterious Lady Whistledown and her salacious gossip column detailing the courting season of high society. Often, Whistledown’s column reveals intimate details about her elite subjects. As Lady Whistledown would put it, this leads these writers to wonder about the Fourth Amendment and tort rights to privacy in Bridgerton.
In Bridgerton, the handsome, mysterious, and newly titled Duke of Hastings arrives in the country during a courting season he would prefer to avoid. Careful with his reputation and not wanting to be rude, he attends one ball at his aunt’s request, starting a domino effect to his ultimate marriage to Daphne Bridgerton. Daphne impressed the court so much upon her entry into society that the Queen dubbed her the “diamond of the first water.” Both the Duke and Daphne were relatively unknown without their titles, each respectively noted in Whistledown’s papers.
Once it was reported that the Duke had returned to his family town with a title and land, and that Daphne was quite literally the belle of the ball that only the finest of the society’s men might have a chance with, both were essentially “converted” into public figures overnight. Any semblance of privacy they may once have had was now gone. While Daphne was prepared for and strove for that kind of attention, the Duke felt quite the opposite, but neither had control over what was reported about them. It was their status as public figures that led to their marriage, despite multiple family and personal sacrifices. Even when they did not consent to it, they had to keep up the public appearance that they were thriving, as anything Whistledown wrote to the contrary would cause both their families shame and likely ostracization in the society.
The legal history of privacy in the U.S. is not a direct path from trespassing on a neighbor’s property to clicking through cookie banners online. In 1890, Samuel Warren and Louis Brandeis, the latter before his Supreme Court days, wrote the law review article, “The Right to Privacy,” advocating for such a right. At the time of publication, privacy primarily meant wanting to live one’s life free from public intrusion. The article discusses how the common law “right to life” without interference upon one’s life and property evolved into torts like assault and battery, both involving intrusions upon one’s body. Citing then-modern technologies like photography and newspapers as invasions of individual privacy, the authors lamented that neither assault nor battery charges were enough to protect individual privacy, especially when society gossip was its own currency.
Seventy years after that influential article, William Prosser delineated the four torts of privacy: intrusion upon seclusion, public disclosure of private facts, false light publicity, and appropriation of name or likeness. Prosser’s third tort does not come into play in Bridgerton, as all the Whistledown publications are factual. However, these private facts are publicly disclosed, which could arguably give the Bridgerton socialites a private right of action through the second tort. The socialites should keep in mind, though, that as public figures in their society, their actions are of genuine public interest, unlike in Catsouras v. Department of California Highway Patrol; other men and women of courting age would find it important to know what behaviors would make them the next season’s most eligible suitors and help them obtain a viable spouse. In Catsouras, highway patrol officers disseminated photographs of the decedent’s corpse via email out of sheer morbidity or gossip, and not for reasons of public interest or law enforcement business procedures. Additionally, the public would have found the photographs offensive and objectionable, whereas the Whistledown papers contained no such offensive language or images.
The Fourth Amendment provides individuals the right to be secure in their persons from unreasonable searches and seizures. While Lady Whistledown is not a government official and is thus free from Fourth Amendment considerations, the Amendment’s implied right to privacy provides a useful history to build our fictitious socialites’ case. This implied right to privacy and Prosser’s first tort come into play in Katz v. United States, in which the Court held that the Fourth Amendment protects against unreasonable searches and seizures by police who have not obtained a warrant to wiretap a public payphone. Katz famously produced the Fourth Amendment ideology of protecting people rather than places, and the concept of the reasonable expectation of privacy. In 1988’s Florida v. Riley, however, the Court held that a police officer who gathered evidence of an individual growing marijuana in his backyard by flying 400 feet over his house in a helicopter did not violate the man’s reasonable expectation of privacy, despite the fact that the marijuana was in an enclosed greenhouse in a fenced backyard that was not accessible to the public. The Court returned to its individual privacy roots in Riley v. California in holding that evidence admitted through a warrantless search of an individual’s cell phone violates the Fourth Amendment right to privacy.
While there certainly were no cell phones in the Regency era, Bridgerton has similarities to modern privacy concerns. Today, gossip magazines, websites, and tabloids invade the private lives of public figures. Social media can make non-public figures into public ones overnight, much like Lady Whistledown’s pamphlets would do to the show characters. Paparazzi aggressively follow and photograph celebrities, adding to the never-ending stream of gossip. Although photography did not exist in the Regency era, Lady Whistledown’s columns included such great detail that they evoked imagery of the royal fête’s.
Specific to public figures is the right of publicity, which is a jurisdictionally limited branch of Prosser’s fourth privacy tort. Modern application of the publicity right, like in Miller v. Glenn Miller Productions, is broader than the fourth right as proposed by Prosser, extending beyond protection of only name and likeness, to protect a celebrity’s pecuniary interest in commercial exploitation of his or her identity. In Carson v. Here’s Johnny Portable Toilets, the right of publicity extended not to name or likeness, but to catchphrases known to be used by a celebrity. Consequently, in later episodes of Bridgerton, we see coins collected for the pamphlets, indicating that Lady Whistledown was making a commercial gain off of her exploitation of the publicity of others. Her tales revealed names and other intimate personal information about the courtiers. Thus, she could be liable in the U.S. for infringing on others’ right of publicity under today’s law.
Similar to actors who have since left the profession but are still harangued by the press due to their public figure status, Daphne and the Duke lost their reasonable expectation of privacy the moment they became the diamond and the duke, respectively. It is not just their expectation that matters here, however. Katz gave us the two-pronged reasonable expectation of privacy test: (1) the affected person should have a reasonable expectation of privacy about an incident, and (2) society should hold the same reasonable expectation of privacy about that incident. The pair definitely felt their privacy should have been protected, but as the center of courting season and thus an example for all of high society, it is highly unlikely that the second prong would be met. Based on how Bridgerton treated public figures’ diminished right to privacy in the first season, we expect to see an even greater struggle between members of Daphne’s still somewhat private family and their soon-to-dissolve private lives.
Anokhy Desai is a law student at the University of Pittsburgh and an information security policy masters student at Carnegie Mellon University.
Carina Mendola is a JD student at the University of Pittsburgh School of Law.
Suggested citation: Anokhy Desai and Carina Mendola, From Society Papers to Paparazzi: Public Figure Privacy Expectations in Netflix’s Bridgerton, JURIST – Student Commentary, February 13, 2021, http://www.itbkb.cn/commentary/2021/02/desai-mendola-bridgerton-privacy-rights/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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