A closer look at privacy
How Brandeis’s theories
have affected media law
Four types of privacy law
Four types of privacy law
• Commercial appropriation of name or
likeness
Four types of privacy law
• Commercial appropriation of name or
likeness
• Public disclosure of embarrassing
private facts
Four types of privacy law
• Commercial appropriation of name or
likeness
• Public disclosure of embarrassing
private facts
• False light
Four types of privacy law
• Commercial appropriation of name or
likeness
• Public disclosure of embarrassing
private facts
• False light
• Intrusion upon physical seclusion
Appropriation
• Dustin Hoffman case shows there
can be a fine line between
commercial and editorial use
Appropriation
• Dustin Hoffman case shows there
can be a fine line between
commercial and editorial use
• A magazine cover may not be
protected if it doesn’t pertain to
contents
Not protected
Protected
“Bush, Cheney, and Rumsfeld”
Protected
• But is Warhol’s art truly transformative?
Disclosure of private facts
Disclosure of private facts
• Embarrassing private facts
Disclosure of private facts
• Embarrassing private facts
• Not newsworthy
Disclosure of private facts
• Embarrassing private facts
• Not newsworthy
• Highly offensive
Disclosure of private facts
•
•
•
•
Embarrassing private facts
Not newsworthy
Highly offensive
To a reasonable person
False light
False light
• “Libel Jr.”
False light
• “Libel Jr.”
• Individual represented in a false and
highly offensive manner before the
public
False light
• “Libel Jr.”
• Individual represented in a false and
highly offensive manner before the
public
• Unlike libel, false-light claims seek
compensation for personal anguish
and embarrassment
Intrusion
Intrusion
• Intentional invasion
Intrusion
• Intentional invasion
• Of a person’s physical seclusion or
private affairs
Intrusion
• Intentional invasion
• Of a person’s physical seclusion or
private affairs
• In a manner that would be highly
offensive
Intrusion
• Intentional invasion
• Of a person’s physical seclusion or
private affairs
• In a manner that would be highly
offensive
• To a reasonable person
Newsgathering
and publication
• Intrusion pertains solely to
newsgathering
Newsgathering
and publication
• Intrusion pertains solely to
newsgathering
• Similar to trespassing — Miller v.
National Broadcasting Co.
Newsgathering
and publication
• Intrusion pertains solely to
newsgathering
• Similar to trespassing — Miller v.
National Broadcasting Co.
• Material improperly gathered may
often be published or broadcast —
Shulman v. Group W
Other privacy torts
• Fraud
– Food Lion v. ABC
Other privacy torts
• Fraud
– Food Lion v. ABC
• Emotional distress
– Hustler Magazine v. Falwell
Other privacy torts
• Fraud
– Food Lion v. ABC
• Emotional distress
– Hustler Magazine v. Falwell
• Outrage
– Armstrong v. H&C Communications
Other privacy torts
• Fraud
– Food Lion v. ABC
• Emotional distress
– Hustler Magazine v. Falwell
• Outrage
– Armstrong v. H&C Communications
• Wiretapping
– One-party states and two-party states
Hoffman v. Capital
Cities/ABC
• Los Angeles
Magazine “crossed
the line” between
editorial and
commercial use
Hoffman v. Capital
Cities/ABC
• Los Angeles
Magazine “crossed
the line” between
editorial and
commercial use
• A reasonable
decision? Or is the
judge playing
editor?
McNamara v. Freedom
Newspapers
• Soccer player photographed with
genitals exposed
McNamara v. Freedom
Newspapers
• Soccer player photographed with
genitals exposed
• Judge Benavides: “[A] factually
accurate public disclosure is not
tortious when connected with a
newsworthy event”
McNamara v. Freedom
Newspapers
• Soccer player photographed with
genitals exposed
• Judge Benavides: “[A] factually
accurate public disclosure is not
tortious when connected with a
newsworthy event”
• Parallels to Dustin Hoffman case?
The Florida Star v. B.J.F.
• Highlights difference between ethics
and the law
– The Florida Star’s own ethics policy was
violated by publishing name
– Victim suffered serious harm from
Star’s actions
The Florida Star v. B.J.F.
• Highlights difference between ethics
and the law
• Media cannot be punished for
naming rape victims and juveniles
– Cox Broadcasting Corp. v. Cohn (1975)
– Oklahoma Publishing Co. v. District
Court (1977)
– Smith v. Daily Mail Publishing (1979)
The Florida Star v. B.J.F.
• Highlights difference between ethics
and the law
• Media cannot be punished for
naming rape victims and juvenile
• Marshall’s three grounds
– Information was lawfully obtained
– Information was publicly available
– “Timidity and self-censorship” could
result
Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender
status newsworthy or not? Threepart test
– Social value of facts published
– Depth of intrusion into private affairs
– Extent to which person voluntarily
courted notoriety
Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender
status newsworthy or not?
• Judge Barry-Deal says Diaz’s status
was not newsworthy, citing “attempt
at humor”
Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender
status newsworthy or not?
• Judge Barry-Deal says Diaz’s status
was not newsworthy, citing “attempt
at humor”
• Entirely true story about the
president of a college’s student body
Diaz v. Oakland Tribune
• Was Toni Ann Diaz’s transgender
status newsworthy or not?
• Judge Barry-Deal says Diaz’s status
was not newsworthy, citing “attempt
at humor”
• Entirely true story about the
president of a college’s student body
• Is Judge Barry-Deal playing editor?
Shulman v. Group W
Productions
• Shulman sues on two grounds
– Disclosure of private facts
– Intrusion
Shulman v. Group W
Productions
• Shulman sues on two grounds
• Judge Werdegar throws out privatefacts claim on grounds that judges
can’t act as “superior editors”
Shulman v. Group W
Productions
• Shulman sues on two grounds
• Judge Werdegar throws out privatefacts claim on grounds that judges
can’t act as “superior editors”
• Allows intrusion claim to move
forward
No special protection
for newsgathering
• Miller v. National Broadcasting Co.
– Intrusion into a private place
– In a manner that is highly offensive to a
reasonable person
No special protection
for newsgathering
• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v.
Cowles Media
– Judge Werdegar: “[T]he press in its
newsgathering activities enjoys no
immunity or exemption from generally
applicable laws”
No special protection
for newsgathering
• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v.
Cowles Media
• Judge Werdegar: Group W’s story is
constitutionally protected, but not its
reporting techniques
No special protection
for newsgathering
• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v.
Cowles Media
• Judge Werdegar: Group W’s report is
constitutionally protected, but not its
reporting techniques
• Should such reporting be protected?
Hustler Magazine v. Falwell
• Libel claim
rejected, Supreme
Court considers
claim of emotional
distress
Hustler Magazine v. Falwell
• Libel claim
rejected, Supreme
Court considers
claim of emotional
distress
• Justice Rehnquist
cautions against
trying to play
editor
Hustler Magazine v. Falwell
• Libel claim
rejected, Supreme
Court considers
claim of emotional
distress
• Justice Rehnquist
cautions against
trying to play
editor
• Recourse?
Armstrong v. H&C
Communications
• A literally outrageous case
Armstrong v. H&C
Communications
• A literally outrageous case
• Florida law against “outrage”
punished a true report about a
newsworthy story
Armstrong v. H&C
Communications
• A literally outrageous case
• Florida law against “outrage”
punished a true report about a
newsworthy story
• What do you think?