Topic Overview
Today’s privacy concerns deal
with online, smart phone and digital activity. Another important concert is
protecting minors against identity theft, online stalking and other serious
attacks. There is little privacy on the Web and in the workplace. Privacy
protection diminished after 9/11/01 with the US Patriot Act.
The work “liberty” in the
Fourteenth Amendment includes personal privacy. Beyond the bedroom, the U.S.
Constitution does not protect against government, media, or private snooping
into people’s personal lives. There are federal laws attempting to protect
privacy like anti-spam and telemarketing regulations as well as the Video
Privacy Protection Act which prohibits stores from revealing information about
what videos or DVDs an individual rents or buys.
Using tort law and the notion
that courts should protect privacy right are relatively new ideas. Warren and
Brandeis’ “The Right to Privacy” was an article for the Harvard Law Review
published in 1890 that proved influential when the Supreme Court recognized a
right to privacy based in the constitution. In 1960, Prosser divided privacy
law into four categories: false light, appropriation, intrusion and private
facts. Privacy laws vary. Like a person’s reputation in a libel case, only
living individuals may sue for three of the privacy torts: intrusion, private
facts and false light. The dead, businesses, associations, unions and other
groups do not have personal rights. Appropriation lawsuits depend on state law.
False light is very similar to
libel but not all false light statements are defamatory, but still false. False
light tort includes disparaging and flattering statements. It compensates for
emotional distress a false report causes. Courts say it should not be a
separate tort because it is similar to defamation and it is so vague it
encroaches on FA rights. 30 states allow false light suits while 13 reject
them. Most states that allow it require a plaintiff to prove the material was
published, the plaintiff was identified, the published material was false or
created a false impression, the statements or pictures put the plaintiff in a
false light that would be highly offensive to a reasonable person and the
defendant knew the material was false or recklessly disregarded its falsity.
Publication: An
oral comment to a few people does not amount to publicity (some states accept
it), but anything published in a mass medium will meet the publicity test.
Identification:
sufficient if one or more persons say the material identified the plaintiff (in
some states), but a large segment of the public must reasonable the material
refers to the plaintiff.
Falsity:
published material must be false or imply false information (some courts hold
that true facts lead to false implications if the defendant intended that
result).
Highly
offensive: the jury or the judge must determine whether the material would be
highly offensive to a reasonable person. There are no definite standards but
there are three categories: embellishment (false information added to true
facts), distortion (facts are omitted or the context in which material is
published makes an accurate story appear false) and fictionalization (some
truth is part of a largely fictional piece).
Fault: some
courts do not agree with the Supreme Court to require private persons to prove
actual malice in false light cases. These courts require a private individual
to prove negligence, not malice.
Many courts say that if a false
light plaintiff proves all elements of his case, a media defendant may use
libel defenses to defeat the claim. If sued for libel, people with absolute
privilege are absolutely privileged in false light suits. Consent and truth can
be defenses. A defendant can prove truth by showing the story is substantially
true. States agree about the appropriate statute of limitations. They can use
shorter statute of limitations applied to libel cases, or the longer
limitations period for other torts.
Appropriation includes two torts:
commercialization and the right to publicity. Both prevent the use of someone’s
name, picture, likeness, voice or identity for advertising or other commercial
purposes without permission. Commercialization protects and individual’s
dignity connected with personal privacy, while the right of publicity protects
the monetary value of using well-known individuals’ name sand pictures. Courts
consider commercialization a personal right but the right to publicity may be
considered a property right. Courts generally find that everyone has both a
right to protect their privacy and a right to decide when his or her name or
picture may or may not be used commercially by others. Right of publicity can
be transferred. Right to privacy cannot.
Name
or likeness: appropriation occurs when a person’s name, picture or likeness is
used in an ad without permission. Having the same name is not enough to show identification.
Something must show the ad was of and concerning the plaintiff.
Look-alikes may not be used without permission or a disclaimer.
Voice:
individual’s voices are protected against use for commercial or trade purposes.
Advertisers may not use sound-alikes without permission or a disclaimer. Courts
have said the voice is as distinctive and personal as a face and is one ways
identity can be manifested.
Identity:
It is possible to appropriate ones identity by impersonation without the use of
name, likeness or voice. Identity may be implies based on a unique vocal style,
body movement, costume, makeup or distinguishing setting. Figures like robots
or animatronics could sufficiently appropriate identities. Actors impersonating
celebrities in nonadvertising situations like satire or parody are not
appropriating likeness or voices. The FA protects such expression.
Plaintiffs can be awarded monetary
damages for injured feelings or for unwillingly helping another gain
financially. The latter will be greater for well-known individuals than others.
There are several defenses
against appropriation. Newsworthiness is most often used. Newspapers and other
media publish newsworthy material despite having a commercial purpose. Some
courts see commercial and trade use on one side and everything else on the
other, including newsworthiness. Others do not. The US Supreme Court heard only
one appropriation case and considered it a right-of-publicity case weighing the
financial interest of a performer over a TV station’s FA rights. Public domain
is another defense. The FA can protect the satirical use of personal
information. Posters are not protected by the FA, but posters with pictures of
newsworthy individuals or events are. The Rogers artistic relevance test is
used to determine whether the use of a celebrity’s name, picture, likeness,
voice or identity is relevant to a disputed work’s artistic purpose. Titles
usually have no artistic relevance t o a work’s content and can be brought to
court. Some courts use a transformative test to decide if a work has FA
protection against a right-of-publicity suit; whether protected artistic
expression about celebrities from expression that encroaches on a personality’s
right of publicity. The FA protects work that adds new elements to an original
to transform it, producing a differing meaning. Transformative works are
satires, news reports, fiction or social criticism pieces. Celebrity’s rights
outweigh FA protections when artistic expression uses literal depiction or
imitation for commercial gain with no discernible transformative elements.
Artists must create something unique and recognizably his own. The predominant use
test is used to determine if a person’s name or picture was used for commercial
purposes or substantive expression. Books, news stories, movies and TV programs
add transformative elements by putting the names in a context. No person, or
deceased person’s relative, has the right to prevent anyone from writing about
another’s life. The FA usually protects fictionalized biographies but may not
protect biographies that are more fiction than fact. Another FA-based defense
says mass media may run ads for themselves that use names and likenesses they
have include in their coverage without having to attain permission if they are
just illustrating content. The best appropriation defense is having the
person’s consent to use his or her name or likeness in contracts. Oral consent
is hard to prove, consent is limited to the agreement’s terms, minors and those
not mentally or emotionally capable of consenting, or implied consent. The use
of a person’s name or likeness may be incidental to a work’s purpose and is not
appropriation. A court could rule
that one’s name or likeness was used so briefly that it was not for a commercial
purpose.
Invasive newsgathering techniques
may amount to intrusion or intrusion upon seclusion (physically or
technologically disturbing another’s reasonable expectation of privacy).
Journalists can be sued if they intentionally interfere with another person’s
solitude or private concerns that would highly offend a reasonable person.
Intrusion tors intend to ensure retention of dignity by preventing unwanted
encroachment into physical space and private affairs (NY and Viginia no not
recognize this tort). Cameras are usual methods of intrusion. Courts hold that
there is no reasonable expectation to privacy in public records. Intentionally
entering private property to obtain information is intrusion, close to
trespass. A plaintiff must prove that the defendant acted intentionally intrude
in a way a reasonable person would find highly offensive. Intrusion can only
occur if a person has a reasonable expectation of privacy; not entering private
property like a house without consent. There is not a reasonable expectation of
privacy on public streets, sidewalks and public parks. The Supreme Court upheld
a Colorado law that created an eight-foot bubble around individuals entering a
health care facility and a 100-foot radius around the entrance. Offensively
trespassing to photograph or record a person’s personal or family activities is
an invasion of privacy. People involved in a news event occurring on public
property have a reasonable expectation of privacy. Determining public and
private can be hard; government land, naval base, businesses, and restaurants.
Consent is the only defense for an intrusion suit based on trespass. A story’s
newsworthiness may reduce the intrusion’s offensiveness. Consent can be
implied. Courts are not in agreement, but reporters can use deceit to gain
entry. Deception does not negate a restaurant owner’s consent to let unknown
critics enter but does not apply to someone using false pretenses to enter with
no substantive reason to be there. Newsworthiness is a rare defense because a
story’s newsworthiness is irrelevant to the harm that occurs when information
is gathered for the story. The legitimate motive of gathering news could negate
an intrusion’s offensiveness in some cases.
Journalists can be sued for a
private facts tort if they publish truthful private information that is not a
legitimate public concern and if it would be highly offensive to a reasonable
person. This tort is mean to protect a person’s dignity and discourage
publication of intimate facts. Monetary damages compensate for emotional
injury. Plaintiffs must show the facts were private, dealt with intimate and
highly personal matters, and were not of legitimate public concern. Intimate
facts are those that one would not want the community to know and can relate to
financial conditions, medical information, and domestic difficulties among
others. Facts have to be more than embarrassing, outrage the community’s notions
of decency, not in public record or release by the person himself or herself, or
information already publicly known.
A plaintiff cannot win a private
facts lawsuit if the information is newsworthy or of legitimate public concern.
Stories about crime, suicides, divorces, catastrophes, diseases and other
topics may include private information. Courts find very intimate facts are not
newsworthy if publishing the information would outrage the community. If a
reasonable person would have no interest in knowing the information, a court
could find it was published for morbid and sensational reasons. Some courts say
if there is no logical connection between the news event and private facts, the
information is not newsworthy. A plaintiff must prove that the defendant gave
publicity to the intimate information. Unlike libel, most courts require
widespread publicity—not just a third party. Some courts hold that small groups
who have a special relationship to the plaintiff such as a church group,
colleagues or neighbors are sufficient for publicity; a few people with close
ties to the plaintiff may prove publicity.
FA defenses consist of public
significance, lawfully obtained, public record, and passage of time. The
Supreme Court focusses on the story’s subject, not on individuals named to
determine whether publication is a matter of public significance. The press can
legally obtain truthful information from public records and are not liable for
publishing private facts. Publicly available facts are not private. Some
plaintiffs have argued that information is no longer of legitimate concern to
the public, but courts have rejected this contention because newsworthiness
does not disappear over time.
Key Definitions
1.
Privacy- the right of people to lead their lives
in a manner that is reasonably secluded from public scrutiny
2.
Tort- an injury on person or entity inflicts on
another
3.
Appropriation- using a person’s name, picture,
likeness, voice or identity for commercial or trade purposes without permission
4.
Commercialization- the appropriation tort used
to protect people who want privacy
Important Cases
Cox Broadcasting corp. v. Cohn- public record/rape victim name
release- first time stating that truthful information lawfully obtained from a
public record could not be the basis of a private facts lawsuit
City of Ontario v. Quon- sext messaging on work pagers- employees
have limited privacy rights; Court held that audits of police officer pagers
was not unconstitutional
Relevant Doctrine
The Four Privacy Torts
1.
False
light: Intentionally or recklessly publicizing false information a
reasonable person would find highly offensive
2.
Appropriation:
Using another’s name or likeness for advertising or other commercial purposes
without permission
3.
Intrusion:
Intentionally intruding on another’s solitude or seclusion
4.
Private
facts: Publicizing private, embarrassing information
False Light
Plaintiff’s Case
-
Publicizing
-
False facts
-
About someone who is identified
-
That would be highly offensive to a reasonable
person
-
Acting intentionally or recklessly (according to
the Supreme Court), or negligently if the plaintiff is a private person
(according to some courts)
Defense
-
Libel Defenses
Appropriation
The appropriation tort may be
divided into two torts:
1.
Commercialization: Applying to someone who wants
to remain private and unknown except to family and friends Using this person’s
name, picture, likeness or voice for advertising or other commercial purposes
without permission is commercialization. It is invading this person’s privacy,
causing emotional distress.
2.
Right of publicity: Applying to someone who
wants to be known far and wide, to be a celebrity—a musician, athlete, movie
star, television personality. Using this person’s name, picture, likeness,
voice, identity—or a look-alike or sound-alike—for advertising or other
commercial purposes without permission invades this person’s right of
publicity. It diminished the person’s economic value.
Commercialization
Plaintiff’s Case
-
Using
a person’s name, picture, likeness (such as a drawing), voice or
identity
-
For advertising or other commercial uses
-
Without permission
Defenses
-
News
-
Incidental Use
-
Advertising for a mass medium
-
Consent
Intrusion by Trespass
Plaintiff’s Case
-
A reasonable expectation of privacy
-
Intentional intrusion on the privacy
-
The intrusion would be highly offensive to a
reasonable person
Defense
-
Consent
Issues/Controversies
Technology is a main issue
regarding privacy. Smartphones, computers and other digital media store and
transmit private and personal information. Online users must try to ensure
their own privacy as current federal and state privacy laws do not sufficiently
protect American consumers. Privacy online is almost impossible as companies
and websites access personal and private information to track online activity
in order to take advantage of that information to build profiles and compile
data about users for various reasons—usually for commercial gain. The ease and
accessibility of information and the willingness of the public to place their
information online does little to help with their privacy protection. Most
private information is already being seen by hundreds of people online, in
medical offices, insurance providers, workplaces, and stores. Individuals are
responsible for their own privacy and need to be careful about their personal
information. Minors are a large issue as well as they are more at risk for
identity theft, online stalking and serious attacks. Generally, we do not have
much privacy today. Privacy law is very uncertain with different rules and
tests, inconsistent application among the courts and states, and the growth of
technology that blurs the lines of legal obtainment and privacy
altogether.
Questions/Concerns
What happens if the case
distinction changes in the middle of the hearing (from false light to libel or
intrusion to trespassing)? Does the hearing start from the beginning? Is there
a new jury? How long do the plaintiff and defendants have to prepare evidence
for new tests?
References:
Trager, R.,
Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass
communication. Thousand Oaks, CA: Sage Publications.Image: https://protect.iu.edu/sites/default/files/img/privacy_pah.jpg
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