Communications Law.
THE RIGHT OF PRIVACY
CHAPTER 5
Penumbra
Is there a right to privacy?
Griswold v. Connecticut (1965)
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Specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those
guarantees that help give them life and substance.
Various guarantees create zones of privacy.
The right of association contained in the penumbra of the
First Amendment is one.
The Third Amendment in its prohibition against the
quartering of soldiers "in any house" in time of peace
without the consent of the owner is another facet of that
privacy.
Is there a right to privacy?
Griswold v. Connecticut (1965)
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The Fourth Amendment affirms the "right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
seizures."
The Fifth Amendment in its Self-Incrimination Clause
enables the citizen to create a zone of privacy which
government may not force him to surrender.
The Ninth Amendment provides: "The enumeration in
the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
The Right of Privacy
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Birth Control (Griswold case 1965)
Abortion (Roe v. Wade, 1973)
Sodomy laws (Lawrence v. Texas, 2003)
Same-sex marriage (Obergeffel v Hodges, 2015)
Four Torts (Civil Wrongs):
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Intrusion upon physical seclusion
Public disclosure of embarrassing private facts
Placing an individual in a false light
Commercial appropriation of name or likeness
Intrusion upon physical seclusion
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Four Torts (Civil Wrongs):
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Intrusion upon physical seclusion
Public disclosure of embarrassing private facts
Placing an individual in a false light
Commercial appropriation of name or likeness
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Intrusion
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It is illegal to intrude, physically or otherwise,
upon the seclusion or solitude of an individual in a
manner that would be offensive
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Purpose of the information gathering
Means of information gathering: cameras, hidden
recording devices, false pretenses
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Protection from unwanted observation
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The main issue here is not the publication, but the
process of gathering information
Intrusion and Expectation of Privacy
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A reasonable expectation of privacy exists in a
private residence, hospital, hotel room, private
office etc.
No Expectation of Privacy in Public or in full
view (sidewalks, parks, beaches, stores,
restaurants, etc.)
An intrusion suit cannot be based on the recording
of activities that took place in public
Dietemann v Time 1971
(U.S. Court of Appeals)
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Life Magazine reporters entered Dietemann’s house under
false pretenses of being in need of medical help. Their true
intention was to investigate Dietemann who was a quack
(minerals, herbs, etc.).
They published an article titled: “Crackdown on
Quackery.”
Dietemann sued for invasion of privacy.
Dietemann won mostly because of expectation of privacy
in his own home. Especially because the reporters used
eavesdropping devices in his private den.
Miller v NBC 1986
(California Court of Appeals).
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Paramedic arrived at Mr. Miller’s home. Camera crew
followed all the way to the bedroom filming the
resuscitation without obtaining consent from Miller’s wife
or anyone else. Later that night NBC aired the film.
Mrs. Miller sued for Invasion of Privacy and infliction of
Emotional Distress
She lost in the trial court
The Court of Appeals REVERSED
CONSIDERED INTRUSION / Invasion of Privacy
Miller v NBC 1986
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“One seeking emergency medical attention does not
thereby “open the door” for persons without any clearly
identifiable and justifiable official reason who may wish to
enter the premises where the medical aid is being
administered…the clear line of demarcation between the
public interest served by public officials and that served by
private business must not be obscured.”
Shulman v. Group W Productions 1998.
(California Supreme Court)
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In a case settled before it could reach the Supreme
Court, the California Supreme Court determined
in Shulman v. Group W Productions that a caraccident victim had a reasonable expectation of
privacy once she was inside a medical
helicopter.
CONSIDERED INTRUSION
Wilson v. Layne 1999 (U.S. Supreme Court)
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The court held that while a search warrant gives
officers the right to enter a private home,
this right does not extend to journalists
Mark v King Broadcasting 1980.
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A television station followed a story about
criminal charges against a local pharmacist and
filmed him through the window during the usual
business hours.
NO INTRUSION. The person could have been
seen by any passerby.
Hidden cameras and secret taping
Food Lion Inc v. ABC (1997)
(see Chapter 4)
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ABC employees trespassed at Food Lion stores to obtain
hidden-camera footage aired later on “Primetime Live”
alleging food mishandling
The business was hurt by the report
Sued ABC for trespass and fraud
Initially the Food Lion stores were awarded $5.5 by a jury,
reduced to $315,000 by the judge, and eventually
awarded only a nominal damage $2 for trespass by the
U.S. Court of Appeals
Desnick v. ABC (1995)
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Two ABC employees posed as patients and requested eye
examinations at Desnick's eye clinics. They used hidden
cameras and recorded the eye examinations which were
subsequently used for a news story about Desnick's eye
clinics.
Despite the ABC employees' misrepresentation of
themselves as patients, the court declined to hold ABC
liable for trespass because the eye clinics were open to the
public, and the ABC employees did not interfere with
Desnick's ownership or possession of his property.
Deteresa v. ABC 1997
(U.S. Circuit Court of Appeals)
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The Court interpreted California privacy law to allow a TV
network to secretly tape a conversation between a producer
and a reluctant news source on her front porch
(see more page 207)
Intrusion and the Internet
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There is no expectation of privacy when
information is voluntarily made accessible to
another person or placed in the flow of commerce
Public disclosure of embarrassing
private facts
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Four Torts (Civil Wrongs):
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Intrusion upon physical seclusion
Public disclosure of embarrassing private facts
Placing an individual in a false light
Commercial appropriation of name or likeness
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Public disclosure of embarrassing
private facts
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The interest protected is that of reputation. It is in
reality an extension of defamation ... with the
elimination of the defense of truth
Defamation laws do not apply because the facts
are true
Public disclosure of embarrassing
private facts
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First, the disclosure of the private facts must be a
public disclosure, not a private one.
Second, the facts disclosed to the public must be
private facts, not public.
Third, the matter made public must be one that
would be offensive and objectionable to a
reasonable man of ordinary sensibilities.
Fourth, the facts are not considered newsworthy
Expectation of Privacy
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A reasonable expectation of privacy exists in a private
residence, hospital, hotel room, private office etc.
No Expectation of Privacy in Public or in full view
(sidewalks, parks, beaches, stores, restaurants, etc.)
Public view is usually a fair game
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Public records and proceedings
Disclosure of private facts
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Private:
Facts from the Past
Legitimate Public Interest
The Newsworthiness Standard
The Highly Offensive Disclosure Standard
Humiliation for Its Own Sake
Facts from the Past: The "Red Kimona"
case (Melvin v Reid 1931)
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Red Kimona film (1925)
was written and produced
by Dorothy Davenport
Reid, a feminist filmmaker
during the silent movie
period. It presented the
true story of a former
prostitute Gabrielle Darley
who was charged with
murder and found
innocent.
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The "Red Kimona" case (1931)
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In 1918, Darley married and she abandoned her old life.
When the movie came out in 1925, Mrs. Melvin (Darley)
sued for $50,000 and won in California court.
The movie producers argued that all the facts of the case
were true and open in court records.
The court said: "Any person living a life of rectitude has
that right to happiness which includes a freedom from
unnecessary attacks on his character, social standing, or
reputation."
The "Red Kimona" case
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Important: the case shows earlier approaches
of the court. Today the plaintiff would not
prevail.
1. Information for the movie taken from public
records
2. There was other material widely available
3. The Darley case would be considered
newsworthy
Information obtained from public
record
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Gates v Discovery Communications 2004 (California
Supreme Court)
Cox Broadcasting v Cohn 1975 (U.S. Supreme Court):
The States may not impose sanctions on the publication of
truthful information contained in official court records
open to public inspection."
Since Cox, through its reporter, had legitimately obtained
the name in open court, the later publication of the name
was held to be an activity protected by the 1st Amendment.
“Highly Offensive” standard
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Physical disorder
Unusual sexual practices
Bizarre personal habits
Virgil v. Time Inc. 1976
(U.S. District Court)
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“The Closest Thing To Being Born” article in
Sports Illustrated
Mike Virgil: I guess I used to live a pretty
reckless life. I think I might have been drunk most
of the time. . . . I'm not sure a lot of the things I've
done weren't pure lunacy.
(see more in the book page 216)
a matter of legitimate public interest /
NEWSWORTHINESS
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Account must be taken of the customs and conventions of
the community: what is proper becomes a matter of the
community mores.
The line is to be drawn when the publicity ceases to be
the giving of information to which the public is entitled,
and becomes a morbid and sensational prying into private
lives for its own sake
Virgil v. Time Inc. 1976
(U.S. District Court)
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Ruling:
Disclosure of these private facts and the identity of
Mike Virgil are privileged as newsworthy under
the First Amendment.
Despite the fact that newsworthiness is an issue
dependent on the present state of community
mores and, therefore, particularly suitable for jury
determination, reasonable minds could not differ
on this conclusion
Free speech, Ethics,
and the right to privacy
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Nicole "Nikki" Catsouras
The accident and the photos
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Nikki Catsouras was traveling her father’s Porsche 100
mph near Lake Forest, Calif., when she clipped another car
and lost control, slamming into a concrete tollbooth, killing
her instantly.
The pictures, taken by California Highway Patrol officers
and e-mailed outside the department, spread around the
Internet, making their way to about 1,600 Web sites,
according to an investigator hired by family.
The case: The Superior Court
(County of Orange, CA)
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Catsouras family sued the California Highway Patrol for
invasion of privacy.
In 2008, A Superior Court Judge dismissed the case: the
CHP officers were not under any responsibility for
protecting the privacy of the Catsouras family.
In 2010, the California Court of Appeal had reversed the
lower court and ruled that the Catsouras family did
have the right to sue the defendants for negligence and
intentional infliction of emotional distress.
The appeal and settlement
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On May 25, 2011, the California Court of Appeal for the
Fourth District ruled that the CHP failed to prove that emailing the photographs is covered by the First
Amendment.
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On January 30, 2012, the CHP reached a settlement
with the Catsouras family, under which the family
received around $2.37 million in damages.
Placing an individual in a false light
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Four Torts (Civil Wrongs):
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Intrusion upon physical seclusion
Public disclosure of embarrassing private facts
Placing an individual in a false light
Commercial appropriation of name or likeness
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Placing an individual in a false light
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Distortion (out of context)
Embellishment (changing the context)
Fictionalization
Distinguished from defamation by the “damages:”
False Light damages are not to reputation, but
personal embarrassment and anguish
Distortion (out of context)
Leverton v. Curtis Publishing Co., 1951,
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The plaintiff in 1947, when she was a child of ten, was
involved in a street accident in the city of Birmingham,
Alabama. A motor car nearly ran over her.
The photograph of the child being lifted to her feet by a
woman bystander appeared in a newspaper the day
following.
Twenty months later it was used by the Curtis Publishing
Co. as an illustration for an article on traffic accidents,
with emphasis on pedestrian carelessness, under the title,
"They Ask To Be Killed"
Embellishment (changing the context)
Cantrell v. Forest City Publishing Co 1974
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When a reporter pretended to have interviewed
widow of man killed in bridge collapse, describing
her face and talking about her courage in refusing
charity, and yet had never bothered to interview
her, the court said he had acted with malice, that
is, knowingly publishing something false.
Fictionalization
Time, Inc v. Hill 1967
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Is a publication, containing misrepresentations about the
subject of its coverage, protected under the First
Amendment's freedom of speech guarantees?
Yes. The Court ruled that press statements are protected
under the First Amendment even if they are otherwise false
or inaccurate. Unless it can be proven that they were made
knowingly or with reckless disregard for the truth (actual
malice standard)
Misappropriation
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Four Torts (Civil Wrongs):
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Intrusion upon physical seclusion
Public disclosure of embarrassing private facts
Placing an individual in a false light
Commercial appropriation of name or likeness
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Appropriation
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It is illegal to appropriate an individual’s name
or likeness for commercial or trade purposes
without consent.
It is a property right – protects the economic value
of the name or likeness
It is a personal right—protects an individual from
the embarrassment and humiliation that can occur
when a name or picture is used
Commercial use
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What are advertising and trade purposes?
For profit or other interest
Use of someone’s name or likeness in an
advertisement in any media outlet including
websites (includes manuals, recruiting material,
etc.)
Use of someone’s name or likeness in a media
product (television show, movie)
Name Or Likeness
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Names?
Not limited to full names
Can be nicknames, stage names, pen names
A likeness?
Photographs, paintings, sketches, cartoons
Fictional characters
Look alikes / imitations (e.g.,Vanna White case)
Sound alikes
Celebrities and advertising
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Carson v Here’s Johnny Portable Toilets (1983)
Midler v Ford Motor Company (1988)
News Exception
Individuals cannot sue for appropriation in
a news story. “News” has been widely
interpreted by the courts to include anything
that is not an explicit advertisement.
However:
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the Zacchini case (fair use)
Zacchini v. Scrips-Howard Broadcasting 1977
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Muhammad Ali case (relevance)
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978)
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978)
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Appropriation: The man clearly resembled
former heavyweight champion Muhammad Ali.
Playgirl was found liable for appropriating Ali's
likeness without his consent.
The court held: "Ali has established a
commercially valuable proprietary interest in his
likeness and reputation, analogous to the name of
successful business entity.“
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978)
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Would the case be the same if the magazine had
shown Ali wearing boxing trunks?
As a public figure, his likeness and name
obviously could be used with legitimate news and
feature articles.
However, there was no legitimate news value to
a depiction of Ali's nudity
News v. commercial use controversies
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Incidental use
News Promos
The use of a person’s name or likeness in an
advertisement for a media product is usually not
regarded as an appropriation if the name or
likeness has been or will be part of the content
Privacy Defenses (summary)
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Newsworthiness
Truth
Plain View
Public Records
Consent
Consent as a Defense
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Written consent is generally uncontestable
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When Consent Won’t Work
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Consent today may not be valid in the distant future
Some persons (minors, wards of the state) cannot give
consent
Consent to use a photograph does not apply if the image is
materially altered or changed
Consent not in exchange for money
The Internet and Privacy
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Social Networks
Employment
Advertisement
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A Right to be Forgotten
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