Chapter Five
Objectives
• To define invasion of privacy.
• To define the four types of invasion of
privacy.
• To explain the defenses for invasion of
privacy.
Privacy
• A legal action to compensate persons
whose right of privacy has been
interfered with.
General stuff about privacy law
• The word “privacy”
doesn’t appear in the
Constitution!
– A “derived” right
– State statutory rules or
common law
• In media law, privacy is
a tort (civil suit)
– Four privacy torts
identified by William
Prosser in California Law
Review article in 1960
Judicial origins of privacy
• 1890 Harvard Law Review article by Louis
Brandeis and Samuel Warren
– “Gossip is no longer the resource
of the idle and of the vicious, but
has become a trade, which is
pursued with industry as well as
with effrontery”
– Argued for zone of privacy
Early ROP cases
• Roberson v. Rochester Folding Box Co., 1902
--New York passes first statutory law on ROP
• Pavesich v. New England Life Insurance Co.,
1905
--First case that recognized ROP as a tort
--New York passes first statutory law on ROP
• Griswold v. Connecticut, 1965
--Real beginning to ROP
--State can’t interfere in sexual relations in marriage
• Roe v. Wade, 1973
--Abortion private matter between woman and her doctor
Early ROP cases
• Roberson v. Rochester Folding
Box Co. (NY App. 1902):
Abigail Roberson sued when
her image was used to sell
flour without her permission
– She lost because no right of
privacy yet
• NY legislature responded with
first privacy statute
– “Name, portrait or picture of
any living person cannot be used
for advertising purposes…
without first obtaining that
person’s written consent”
Early ROP cases
• Pavesich v. New England Life Insurance
Co. (1905)
• Artist Paolo Pavesich sued England Life
for using his likeness in an ad without his
permission.
• Georgia Supreme Court upheld his right
to sue.
Early ROP cases: Alternative
lifestyles
• Bowers v. Hardwick, 1986
--State can regulate sodomy between consenting
adults
• Lawrence v. Texas, 2003
--State cannot prohibit homosexuals from
engaging in sexual activities legal for
heterosexuals
The four privacy torts
• Appropriation/Misappropriation/Right of publicity:
unauthorized use of image or personal attributes
(protection of property rights)
• Intrusion: trespass into solitude
• Private facts: publication of embarrassing private
facts, particularly if true
• False light: portraying someone in a fictionalized
or distorted way
• Governed by individual state law!
• California recognizes all four torts
Misappropriation/Appropriation/
Right of publicity
• Is it illegal to appropriate an individual’s name or
likeness for commercial or trade purposes without
consent?
Misappropriation/Appropriation/
Right of publicity
• Right to privacy protects only the
exploitation of the individual’s
name and likeness. Use of someone
else’s identity (name, image, voice,
etc.) for commercial gain
– Recognized in nearly every state
– Difference between appropriation and
right of publicity: ROP deals with
commercial value of image (and
survives after death as property
right); misappropriation doesn’t care
(and doesn’t survive as personal
right)
Misappropriation/Appropriation/
Two types of grievances
• Feeling of shame, humiliation, or even damaged
reputation associated with one’s name or photo
disseminated widely in way over which we have
no control
• Lost income
Misappropriation/Appropriation/
Right of publicity
• Actions that are commercial uses.
– Photo in a photographer’s window
– Use of a person’s name or photograph in an ad
– False testimonials
– Use of someone’s likeness or identity in a
commercial entertainment vehicle like a
feature film or novel
Misappropriation/Appropriation/
Right of publicity cases
• Johnny Carson v. “Here’s Johnny
Portable Toilets, Inc.,” 1983
• Sinatra v. Goodyear, 1970
• Bette Midler v. Young & Rubicam,
1989
• Vanna White v. Samsung, 1992
Use of identity
• Carson v. Here’s Johnny Portable
Toilets (6CA 1983):
– “Here’s Johnny!” used to advertise
toilets!
– Carson sought injunction, appeals court
granted on basis that slogans could be
part of identity
• Sinatra v. Goodyear (9CA 1970):
– Nancy Sinatra sued Goodyear for using
actresses dressed like her singing “These
Boots Are Made for Walkin’”
– Lost since clear that she was not singing song
or endorsing product
Misappropriation/Appropriation/
Right of publicity and the news
• Cher v. Forum, 1982
• Zacchini v. Scripps-Howard
Broadcasting, 1977
Supreme Court case
• Zacchini v. Scripps-Howard
Broadcasting Co. (1977):
Zacchini’s circus act was to be
shot out of a cannon; entire 15
sec. of act shown on evening
news in Cleveland over his
objections
– Zacchini alleged in right of
publicity case that broadcast had
deprived him of revenue;
Supreme Court agreed
Misappropriation/Appropriation/
Right of publicity in deceased cases
• Lugosi v. Universal
Pictures, 1979
• Comedy III Productions v.
Gary Saderup, Inc., 2001
California case/law
• Astaire v. Best Film and Video (9CA
1998): Robyn Astaire, Fred’s
widow, sued under CA Celebrity
Rights Act to stop Best Film from
using stock public domain footage
of him in documentaries or NFP
instructional tapes
– Court said no, she could not control
non-commercial use of his old films
• Astaire Celebrity Image Protection
Act of 1999: duration of right of
publicity extended from 50 to 70
years after death
Defenses to appropriation
• Consent: strongest—written is best
• Newsworthiness: clear second best; rarely
works for media defendant
• Fair use/fair comment: weak, but protect
derivative uses of celebrity identities—
famous open themselves up to comment,
making fun of celebrities is important to
popular culture
Intrusion
• Is it illegal to intrude, physically or otherwise,
upon the seclusion or solitude of an
individual?
Intrusion
• Like tort of trespass: right
against unconsented entries into
private spaces
– In common law, defined as
“offensive, physical, electronic, or
mechanical invasion of another’s
solitude or seclusion”
• No need to prove publication;
act of intrusion is the tort
– Telephoto lenses and boom
mikes, or unlawful recording
of phone conversations or via
hidden cameras
Intrusion Cases
•
•
•
•
•
•
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Dietemann v. Time (9CA 1971
Galella v. Onassis, 1973
Deteresa v. ABC, 1997
Food Lion v. ABC, 1999
Wilson v. Layne, 1999
Shulman v. Group W. Productions, 1998
Sanders v. ABC, 1999
Early cases
• Dietemann v. Time (9CA 1971): reporters for Life
magazine got into Dr. Dietemann’s home under
pretense that they wanted to be clients
– Really reporting on story (with hidden recorder)
about “quack” doctors practicing without license
– Court said 1A not license to intrude
• Galella v. Onassis (2CA 1973, ‘82):
Jackie Onassis got restraining
orders against Ron Galella,
stalker-photographer
– Court recognized emotional
distress: small zone of privacy
– Unusual case
Hidden cameras
• Deteresa v. ABC (9CA 1997): Beverly Deteresa
was flight attendant on OJ Simpson’s flight to
Chicago after murders
– ABC went to her house and talked to her in plain
view on her porch, secretly taped it, and aired some
of it even after she demanded they not
– 9CA said no reasonable expectation of privacy on
her porch, where she knew she was talking to media
• But see Food Lion v. ABC (4CA 1999), where
ABC hit with $5.5 million damages for two
PrimeTime Live staffers went undercover with
hidden cameras to tape alleged food prep
hazards at FL (award later reduced)
Ridealongs: “newsgathering
tort” (behavior vs. content)
• When journalists ride with
police officers or enter areas
police go with warrants
• Wilson v. Layne (1999): Wash.
Post journalists entered home of
Charles Wilson with police when
police arrived to arrest son (who
was not there); Wilson in
underwear fought with officer
– Court said that it is 4A violation for
journalists to enter home without
resident consent, even if with
officers who have warrant
California intrusion
developments
• Shulman v. Group W Productions (CA SC 1998):
Ruth Shulman flipped her minivan and was
tended by paramedics; video production
company secretly taped her conversations with
paramedics as they pulled her out of wreck
(medics were wired)
– CA Supreme Court said
Shulman could sue TV
production company for
intrusion (“spying”),
even though accident
was newsworthy
Recording phone conversations
• Bartnicki v. Vopper (2001): Frederick Vopper aired
illegally-made tape of union members discussing
controversy over salaries; tape had been given to
him
– Court said that when even
illegally-made tape concerns
issue of public concern and
media lawfully obtains from
3rd party without participating
in illegal taping, 1A gives media
right to air tape
– Relied on Pentagon Papers case
California 1998
anti-paparazzi law
• Invasion of privacy to trespass in attempt to
“capture any type of visual image, sound recording
or other physical impression of (anyone) engaging
in a personal or familial activity (if) the physical
invasion occurs in a manner that is offensive to a
reasonable person”
– Also includes attempting to capture such info where
there is a reasonable expectation of privacy even when
there is no physical trespass if a “visual or auditory
enhancing device” is used!
• Can sue for 3x general and special damages—eek!
– No penalty for publication under this law
Defenses to intrusion
• Consent: best defense; inviting a reporter into
one’s home or office implies consent
– But don’t carry it too far—Dietemann
– Consent exceeded when prying into desks or files
when alone
• Plain view: anything that can be seen in or from
public place can be reported upon because
nothing extra is needed to obtain information
(but some disfavor due to abuses of tech)
• Newsworthiness: not strong defense, although
has been applied; strongest when on public
property; weakest on private
Publication of private facts
• Is it illegal to publicize private information about
a person if the material that is publicized:
– Would be highly offensive to a reasonable
person, and
– Is not legitimate public concern or interest?
Publication of private facts
• Most common form of
invasion of privacy
• More prominent people
get less protection
• “Private facts”—
information “highly
offensive to a reasonable
person” and “not of
legitimate public concern”
– Doesn’t matter if the facts
are true—in fact, more
damaging if they are!
Early private facts cases
• Melvin v. Reid (CA App. 1931): movie made of
former prostitute who had been acquitted of
murder; maiden name used in ads
– She moved on and rehabbed; court
said she could sue for privacy
– “Social utility” test: if facts have little
social utility, may not be newsworthy
• Sidis v. F-R Publishing (2CA 1940):
reporter wrote “what ever happened
to” story on William Sidis, child
prodigy, found him poor and
underemployed, wrote sympathetic article
– He avoided publicity, but continued newsworthy
because of early publicity (once newsworthy, always newsworthy)
Private facts cases
• Supreme Court Cases
– Cox Broadcasting v. Cohn, 1975
– Florida Star v. B.J.F, 1989
• California cases
– Times Mirror v. Superior Court of SD, 1988
– Briscoe v. Readers Digest, 1971
– Diaz v. Oakland Tribune, 1983
Supreme Court cases
• Cox Broadcasting v. Cohn (1975)
– Georgia TV station reported the name of
the victim of a vicious gang rape and
homicide, information its reporter obtained
from the official indictment.
– Deceased’s father brought privacy suit
against station.
– Ruled for the station but did not decline to
rule on central question of whether truthful
publications may ever be subjected to civil
or criminal liability.
Supreme Court cases
• Florida Star v. B.J.F.
– Reported rape victim’s name, but two differences from
Cohen case:
• Rape victim was still alive
• Got information from government source but was told the
information was being given to him by mistake.
– Victim’s name was obtained lawfully.
– Court said it has not closed door on possibility that a
future public disclosure plaintiff might prevail against
the press for its reporting of true information.
California cases
• Times Mirror v. Superior Court of San Diego
(CA App. 1988): appeals court held that LA
Times could be held liable for publication of
woman who could identify murderer still at
large, even though her name was public record
• Briscoe v. Reader’s Digest (CA SC 1971):
Reader’s Digest published truck hijacker’s
name after 11 years when he had rehabbed and
started new life; CA SC said basis to sue (even
though he lost eventually)
California cases
• Diaz v. Oakland Tribune (1983):
• Toni Ann Diaz was a male but underwent
surgery to change her sex. Enrolled at
community college where she was elected
student body president.
• Oakland Tribune revealed sex change. She sued
for invasion of privacy.
– She won verdict at $75,000, but was
overturned.
– She dropped the case.
How do plaintiffs win?
• Plaintiff must show facts are private
– Sipple v. Chronicle Publishing (CA App. 1984): Oliver
Sipple saved President Ford, and he was was gay;
court ruled that info not private because of his active
status in SF gay community
• Highly offensive?
– Virgil v. Time (9CA 1975):
Mike Virgil, CA bodysurfer
who boasted of eating spiders
and biting a cheek off in SI
interview—consented, but
revoked; facts held to be
newsworthy in understanding high-risk sports
Defenses to private facts
• Consent: written is still best; can be revoked if
done reasonably (Virgil)
• Qualified privilege (public record/public
proceeding): coverage of gov’t proceedings or
documents is inherently newsworthy—everything
in public records presumably “in the public”
therefore not private facts—but have to report
truthfully!
• Newsworthiness: judges don’t want to secondguess journalist’s determination of
newsworthiness
– Truth is not a defense!! unlike in libel
False light
• Is it illegal to publicize material that places an
individual in a false light if:
– A the false light in which the individual was
placed would be offensive to a reasonable
person, and
– The publisher of the material was at fault
when the publication was made?
False light
• Being portrayed in erroneous and offensive
manner; similar to libel, but without
defamation
– Different from libel: Info need not be defamatory
(damaging to reputation), only “highly offensive to a
reasonable person”
– Person “portrayed” in a offensive manner—implied
rather than explicit
• “False portrayal of a person’s characteristics,
conduct, or beliefs that casts a person in a false
light”
False light cases
• Time Inc. v. Hill, 1967
• Cantrell v. Forest City Publishing, 1974
Supreme Court cases
• Time v. Hill (1967): story about how
Hill and family held hostage by
escaped convicts—Time reported
some fictions in play review
– Applied actual malice: Matters of
public interest were not knowingly
falsely portrayed, so Hills lost
• Cantrell v. Forest City Pub. Co. (1974): “interview”
with woman about how she and children survived
after husband killed never occurred—never met
reporter
– Court found actual malice standard met in made-up
interview
Two kinds of false light
• Distortion: omitting or using
facts out of context so that
reasonable person might think
ill of distorted person
– Duncan v. WJLA-TV (DDC 1984):
Linda Duncan walking down
street in Washington DC with
voiceover talking about millions
of Americans infected with
herpes— reasonable person
might think her infected
• Fictionalization: Hill and
Cantrell
Defenses to false light
• Truth: show that basic claims made by story
are accurate
• Consent: person may not like results of
interview once it’s done and may revoke, but
can argue consent given
• Newsworthiness: in conjunction with
constitutional defense, not useful alone
• Opinion and fair comment: info must be
understood by reasonable people as opinion;
obvious parody protected
Legislative ROP laws
• Privacy Act of 1974
• Children’s Online Privacy Act of 1998
Privacy Act of 1974
• Congressional law which recognizes the
individual’s right to be left alone.
• Gives all citizens the right to inspect most
of the government files maintained on
them to prevent improper distribution of
those records, and to challenge errors.
• Prohibits indiscriminate government
snooping and prying.
Online privacy
• Children’s Online Privacy Protect Act of 1998:
companies cannot collect info about kids under
13 without parental consent
• Limits ability of children under 13 to have
email accounts.
• Requires those who
gather data to deal with
parents before dealing
with their children.
Internet cases
• TBG Insurance
Services v. Superior
Court, 2002
• Intel Corporation v.
Hamidi, 2003
Conclusions: Appropriation
• Appropriation is the unauthorized
commercialization of another.
• No one has a right to use someone’s name
or likeness or, in the case of celebrities,
looks, voice or talents (sometimes
inheritable property interest) without his or
her permission.
Conclusions: Intrusion
• Intrusion is the physical or technological
violation of another’s privacy.
• Generally, the media can record or take
pictures of what is easily seen or heard in
pubic and quasi-public places, but they are
not permitted to engage in harassment,
assault, or overzealous surveillance, even in
public places.
Conclusions: Private facts
• Private-facts tort is the highly offensive
revelation of true, private information that
is not newsworthy.
• Publication of private information
contained in court records is protected as
well as lawfully acquired information in
government records.
Conclusions: False light
• False-light tort is the knowing dissemination of
highly offensive false publicity.
• A person may be placed in a false light through
highly offensive distortion resulting from
omissions and from the use of pictures and
broadcast footage out of context.
• He or she also may be cast in a false light
through embellishment of news and
fictionalization in books, short stories,
docudramas, and other media.