A Retort to the
Challenges to the United
States Privacy Laws
BY: KELSON JENNINGS
MCOM 4371 01 | December 5th 2018
May it please the court, I come here today to address an issue that is central to our
nation's constitutional foundations: that is, the ongoing debate regarding Fourth Amendment
rights as they apply to unreasonable search and seizure by the state; and as they apply to the right
of citizens to be “left alone” by fellow citizens.
First off, as you, know, the 4th amendment in the U.S. Constitution guarantees freedom
from unreasonable search and seizures. For a person to be searched by law enforcement
agencies, they must have probable cause, and a warrant to search the person and their
belongings. If there is no probable cause for the search, it is then considered illegal, and any
evidence collected from that search will then be disqualified as evidence at the trial.
The right to privacy is an extension of the 4th amendment and is used to help protect the
public from the media. The right to privacy is the right to decide to engage in certain acts or have
certain experiences. There are four distinct privacy torts that have evolved in most of the United
States with different rules and purposes. I will explain each tort to the court and court cases of
the past as a review in how these torts have been applied in court of law.
The first tort of privacy is the misappropriation of name or likeness, which, Zelezny
(2011) defines it as the commercial use of a person’s name or likeness without consent. The civil
wrong in appropriation is that it is an infringement of an individual’s right of publicity.
Individuals have the sole right to control the marketing or exploitation of their own persona.
Individuals affected by appropriation are to be compensated for the infliction of embarrassment
or shame when their likeness is used. To win in these cases, the likeness of the person making
the claim must be clearly “identifiable” by photo, nickname, voice, or other marks of their public
“selfness”.
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A case that exemplifies the misappropriation of likeness is the case Midler v. Ford Motor
Co. (1986) In this case, Bette Midler pursued in the U.S. States Court of Appeals against Ford
Motor Company for a series of commercials in the 1980s which used a Midler impersonator. The
impersonator was a former backup singer of Midler and imitated Midler’s voice to a convincing
degree. This case brought up the question if a unique feature, such as a voice, can distinguish
someone then it must be authorized for impersonation. The appellate court ruled in favor of
Midler awarding her $400,000. The court stated that the voice of someone famous is a distinctive
part of their person and image and therefore, is a part of their identity and likeness. It was then
ruled unlawful to imitate their voice without express consent and approval.
The second tort of the right to privacy is the disclosure of private facts. Zelezny (2011)
defines this tort to be the disclosure of privates to be the public disclosure of embarrassing and
un-newsworthy private facts which, a reasonably person would find highly offensive. The tort
itself focuses its concerns on the dissemination of accurate information such as facts. It is
different from defamation, because truth is not a defense, it is part of the problem. The facts in
these torts must be considered truly private facts. Additionally, there is no liability for giving
further publicity on the information that has disclosed. The plaintiff has to prove that the
information that was disclosed was truly private up to the point the media shed light on the
information. Ultimately, the jury gets to define what is private and offensive.
A court case that is a great example of the tort of disclosure of private facts is Diaz v.
Oakland Tribune (1983). In this case Oakland Tribune columnist Sidney Jones wrote a degrading
paragraph about Antonio Diaz, a student at the College of Alameda, who had undergone sexchange surgery several years earlier. Diaz had gone to great length to conceal this fact from the
public so he could try and start a new life. Diaz sued the Oakland Tribune for the publication of
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embarrassing private facts and was awarded $775,000 as compensation for the damages. As
shown in this case, that the disclosure of these private facts were for shock and embarrassment
factor and not for newsworthiness.
Next up on the right to privacy, is the third tort: false lighting. False light is the
representation of an individual in a false and highly offensive manner before the public. In a
way, false light is similar to defamation. Though in contrast to defamation, a false light claim is
aimed to compensate the individual for personal embarrassment and anguish, not for damage to
reputation. In the states that do recognize false light, they generally have to fall under three
categories: distortion, embellishment, and fictionalization.
An example of the embellishment category of false lighting would be the U.S. Supreme
Court case of Cantrell vs Forest City Publishing Co. (1974). In 1967, a bridge collapsed and
forty-four people were killed, one of those victims was Cantrell. A few months later, a reporter
for the Cleveland Plain Dealer wrote a follow-up story on the disaster and thee impact it had. The
story greatly emphasized the poverty of the remaining Cantrell family members and the
weakening state of their, buy many of the facts stated in the article were clearly embellished. In
truth, only the children were home when the reporter had visited the Cantrell estate. The reporter
never met or spoked to their mother, despite saying so in the article. Many other false statements
were contained in the elaborate description of the Cantrell’s poverty. The Court ruled in favor of
the Cantrells, and they were rewarded $60,000.
Finally, the fourth and final tort of the right to privacy is intrusion. Zelezny (2011)
defines this type of invasion privacy as the intentional invasion of a person’s physical seclusion
or private affairs in a manner that would be high offensive to a reasonable person. This privacy
tort is different to its counter parts in that it take place during the information-gathering process,
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unlike the other torts that occur in publications or broadcasts. The goal of this law is to payback
the people affected by the intrusion of their privacy. Intrusions can include unreasonable search
and seizures, invasions of your private space, which often includes digital recording devices that
most people find offensive, and the intrusion of investigative reporting.
A court case that is an example of intrusion is the Food Lion vs ABC (1999) case. This
case is also considered a fraud case. In 1992, the producers of ABC’s PrimeTime Live had
received tips about Food Lion stores were engaging in unsanitary practices of handling meat,
such as re-labeling expired meat to make it appear that it is not out of date. ABC decided to
check out this tip and investigate it under cover by having two reporters obtain deli department
jobs within the grocery chain. The reporters submitted applications with false information to
create a character for the undercover investigation. These undercover reporters got the jobs under
the false applications and during their time at Food Lion, they used tiny concealed cameras to
record several instances of unsanitary actions committed by employees. Some of this footage
was used during a PrimeTime Live broadcast.
In this case Food Lion sued ABC and its reporters, not for the accuracy of the broadcast,
but rather by the means and methods by which the footage of the broadcast was obtained. A
federal jury found ABC liable for fraud and awarded $1,400 in compensatory damages and $5.5
million in punitive damages. The District Court judge ruled that the punitive awarded was rather
excessive and reduced it to $315,000. In 1999, the Court of Appeals eliminated the damage
award for fraud. According to the North and South Carolina law, the plaintiff can only collect for
damage resulting directly from reliance on the misrepresentations and the court found none of
that. Ultimately ABC won, but this case creates a debate about the ethics of how investigative
reporting can go about and if it is justified.
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Regarding the original four torts of the right to privacy laws, modern technology presents
a challenge to the existing torts and laws in finding a fine line. With the progression of modern
technology, a person’s privacy is also affected in the digital space. Their personal information
can be accessed by strangers and the government without their permission. Additionally, the
internet isn’t always traceable. Information can be pickpocketed quite easily and people’s
privacy can be taken from websites without their knowledge of it doing so.
Thus, there are four existing internet laws to help combat these concerns. These laws are:
the Electronic Communications Privacy, the Cyber Intelligence Sharing and Protection Act, the
Computer Fraud and Abuse Act, and Trans Pacific-Partnership Agreement. These laws are great
building blocks for combatting internet privacy breaches, but a big problem with internet privacy
is the use of viruses that are often untraceable and the anonymity a person can have sometimes
making them nearly untraceable. It is hard to tell when your privacy on the internet is actually
being breached. An example of technology breaching privacy laws is the Supreme Court case of
United States vs Jones (2012). In this case the police investigators asked and received a warrant
to attach a GPS tracking device to the underside of Jones’ car but then overstepped the warrant’s
boundaries in both geography and length of time. The Supreme Court justices ruled that this case
was a “search” under the Fourth Amendment. The verdict of this case is that police had
committed a trespass against Jones’ personal effects and trespassed in an attempt to gain
information via a search.
To conclude this address, freedom and the right to privacy is the foundation of our nation.
We must make sure we uphold these rights and laws accordingly to our founding fathers. So, in
conclusion, I implore you to uphold our rights as Americans. I thank the court for this
opportunity to contribute to this extremely important debate.
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Works Cited
Zelezny, J. (2011) Communications Law: Liberties, Restraints, and the Modern Media.
Wadsworth.
Midler vs Ford Motor Co., 849 F.2d 460 (9th Circ.1988).
Diaz vs Oakland Tribune, 188 Cal. Rptr. 762 (1983).
Cantrell vs Forest City Publishing Co., 419 U.S. 245, 248 (1974).
Food Lion, Inc. vs Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999).
United States vs Jones, 565 U.S. 400 (2012)
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