Does the Right to Privacy Exist in Your Social Media DMs?

When a direct message is sent via social media, there’s a general assumption that only the intended recipient will view the message. However, that is not always the case. Recently, Adam Levine, the lead singer of the band Maroon 5, was caught “sliding into” the direct messages (“DMs”) of several women.¹[1]Ryan Schocket, Adam Levine Denied Having An Affair But Said He “Crossed” The Line With Model Sumner Stroh, After She Leaked Their Alleged DMs (Sep. 20, 2022), https://www.buzzfeed.com/ryanschocket2/adam-levine-sumner-stroh-dms-tiktok One of the alleged recipients, Sumner Stroh, used TikTok to expose Levine’s private messages sent to her via Instagram.²[2]Joyann Jeffrey, Adam Levine’s alleged flirty Instagram messages have become a viral meme (Sep. 23, 2022, 12:01 PM), https://www.today.com/popculture/popculture/adam-levines-alleged-flirty-instagram-messages-meme-rcna49146. Suddenly, the messages between Levine and Stroh became headline news and an internet meme.³[3]Id. Levine is not alone in having his messages revealed. This past summer, artist Doja Cat reached out to Stranger Things star, Noah Schnapp, about the potential of dating his co-star, Joseph Quinn, via Schnapp’s DMs.⁴[4]Hanna Lustig, The Doja Cat and Noah Schnapp Drama Explained (Jul. 14, 2022), https://www.glamour.com/story/doja-cat-noah-schnapp-beef. Schnapp revealed these messages on his TikTok page, which created a social media storm.⁵[5]Id.

These messages were sent via direct message on Instagram with the assumption they would never be seen by anyone but the recipient. Instagram intends that messages sent via the DM feature will only be seen by the sender and intended recipient.⁶[6]Instagram Features, Direct Messaging, https://help.instagram.com/1750528395229662/?helpref=related_articles. This raises the question, was a legal right violated when these “private” conversations were made public?

Revenge porn statutes & copyright law might provide a right to privacy for explicit images

Currently, forty-eight states plus Washington D.C. and Guam have enacted laws regulating revenge porn.⁷[7]Chance Carter, An Update on the Legal Landscape of Revenge Porn, (Nov. 16, 2021), https://www.naag.org/attorney-general-journal/an-update-on-the-legal-landscape-of-revenge-porn/ Content deemed “revenge porn” generally involves images or videos that are explicit in nature, sometimes sent between two consenting adults, that have subsequently been shared without the sender’s consent.⁸[8]Id. Victims of revenge porn often suffer mental health consequences such as “significant emotional distress, social impairment, and suicidal thoughts, while others have been driven to commit suicide.”⁹[9]Id.

In Doe v. Elam,¹⁰[10]Doe v. Elam, 2:14-cv-09788-PSG-SS (C.D. Cal April 4, 2018) a California Central District Court case, the plaintiff, a revenge porn victim received a $6.4 million judgment ($450,000 for copyright infringement, $3 million for severe emotional distress and $3 million for other damages, including stalking and online impersonation with intent to cause harm).¹¹[11]Christine Hauser, $6.4 Million Judgment in Revenge Porn Case Is Among Largest Ever, (Apr. 11, 2018), https://www.nytimes.com/2018/04/11/us/revenge-porn-california.html After the plaintiff and her boyfriend ended their relationship, he shared explicit photographs and videos of her on pornographic websites and over text message.¹²[12]Id. In response, the plaintiff quickly registered the content (an “original work of authorship”) with the U.S. Copyright Office and subsequently received the protections conferred upon copyright owners.¹³[13]Id. She then prevailed on her copyright infringement claim, and the photos were promptly taken off the websites they were posted on.¹⁴[14]Id. The defendant was also charged under California’s nonconsensual photography law,¹⁵[15]Cal. Pen. Code §647(J)(4) (West 2021) which makes posting explicit photos of someone online without their consent a misdemeanor.¹⁶[16]Id. While the state decided to drop this charge,¹⁷[17]Supra, note 11. many jurisdictions have criminal statutes that provide alternate means of recourse for a victim of revenge porn.¹⁸[18]States with Revenge Porn Laws, https://www.cagoldberglaw.com/states-with-revenge-porn-laws/

If the direct messages sent by Adam Levine or Doja Cat were explicit images, there could be a potential cause of action under federal copyright law or certain state revenge porn statutes.¹⁹[19]What Does Copyright Protect, https://www.copyright.gov/help/faq/faq-protect.html However, their messages were rather innocent and used common phrases. Therefore, they would not be protected by revenge porn statutes.

Public disclosure of private facts statutes might provide a right to privacy unless your messages are newsworthy

A potential claim that Adam Levine or Doja Cat can assert is for public disclosure of private facts, which is a statutory tort in certain states.²⁰[20]Richard E. Kaye, Invasion of Privacy By Public Disclosure of Private Facts*103 Am. Jur. Proof of Facts 3d 159 (Originally published in 2008) This tort, available in California, ensures that a party entrusted with private information cannot make that information public.²¹[21]Supra, note 18. Generally, the elements for a cause of action under a public disclosure of private facts statute are: (1) the public disclosure, (2) of a private fact, (3) that would be offensive and objectionable to a reasonable person, and (4) that is not of legitimate public concern.²²[22]Id.

Unfortunately for Levine and Doja Cat, this claim would likely fail due to the newsworthiness exception for public figures, which is expressed in the fourth element above.²³[23]Id. The newsworthiness exception for public figures dictates that individuals who by “virtue of [their] accomplishments, fame, or mode of life that gives the public legitimate interest in the person’s activity or character” are considered to be public figures.²⁴[24]Id. This exception does not include individuals who do not actively seek to be in the public eye, unless they are a part of an event that is “newsworthy,” such as criminal activity, notable marriages, or sale of a landmark.²⁵[25]Id. Even then, those who do not actively seek to be a part of newsworthy discourses and are unwillingly thrust into the public eye due to a newsworthy event out of their control are given the right of privacy when the newsworthy event is no longer happening.²⁶[26]Id. Under this exception, individuals who assent to being involved in public discourse, due to their accomplishments or to their career, will have almost no right to privacy under this statute.²⁷[27]Id. Here, both individuals are “a-list” celebrities who by virtue of their fame are public figures, which makes the messages they sent newsworthy.

The exception to the newsworthiness doctrine for a public figure has been held inapplicable when the public figure participates in something like a sex tape or the sharing of private photos. In Michaels v. Internet Entertainment Grp., Brett Michaels and Pamela Anderson (both celebrities) brought a claim under the California public disclosure of private facts statute against a Dutch website that disseminated a sex tape created by the couple.²⁸[28]Michaels v. Internet Entertainment Grp.., 5 F. Supp. 2d 823 (C.D. Cal. 1998), 840 The court held that Michaels and Anderson had a right of privacy because the “visual and aural details of their sexual relationship” are considered private for everyone regardless of their fame.²⁹[29]Id. However, if it were not for the explicit nature of the video, the video’s newsworthy status, as a result of the celebrities’ fame, may have permitted the video to remain public.³⁰[30]Id. Similarly in Bollea v. Gawker Media,³¹[31]Bollea v. Gawker Media, LLC, No. 12012447-CI-011 (Fla. 2d DCA 2016). a Florida appeals court held for Terry Bollea (better known as “Hulk Hogan”) that the distribution of his sex tape was not protected by the newsworthiness doctrine.³²[32]Kayla Lombardo, The Hulk Hogan vs. Gawker legal saga, explained (May. 3, 2018) The court stated that even though his on-screen personality was very open about his sex life, the dissemination of the sex tape by Gawker media violated Bollea personal’s right of privacy.³³[33]Id.

Overall, Adam Levine and Doja Cat likely have no right to privacy in their respective situations because there was no explicit content released, and the content is likely to be deemed newsworthy. Even though social media sites like Instagram have made attempts to prevent leaked DMs on their website via tools like “Vanish Mode,”³⁴[34]Siena Gagliano, Can You Screenshot Someone’s Instagram DMs Without Notifying Them? (Jul. 7, 2022), https://www.bustle.com/life/can-you-screenshot-instagram-dms-notification. social media users, especially celebrities, must ensure that private messages are directed towards trustworthy recipients. According to Andrew Rausa, Adjunct Professor of Law at Brooklyn Law School, “it doesn’t matter whether the message was sent via snail mail, telephone, or an app, any right to privacy will come down to the relationship between sender and receiver, the content of the message, and their understanding around the privacy of the message.”³⁵[35]Zoom Interview with Andrew Rausa, Adjunct Professor of Information Privacy, Brooklyn Law School (Oct. 14, 2022).

Written by: Richa Choubey
Richa is a 2024 J.D. Candidate at Brooklyn Law School