to report on matters of public interest (FA: free press) 29

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Privacy, the Media, and the Law

• October 4, 2006

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How is privacy protected by the Constitution?

• This is a trick question!
• The word privacy appears nowhere in the
  Constitution
• And not at all in some languages!

3
What does privacy mean to you?

• Not in the legal sense
• In the everyday sense of the word

4
A famous quote about privacy

• Justice Louis Brandeis privacy is the right to
  be let alone

5
How does Constitution protect privacy?

• Courts have ruled that the Constitution does
  protect against government intrusions into
  privacy esp. as regarding property/home
• 3rd Amendment soldiers
• 4th Amendment search and seizure
• 14th Amendment deprivation of liberty requires
  due process
• Result common law re contraceptives, abortions,
  same-sex contact

6
Is there explicit Constitutional protection
against

• Government snooping into personal information?
• Media snooping into personal information?
• Media divulging personal information?

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No!

• And there are relatively few (and inconsistent)
  statutes
• Most of these prohibit government agencies from
  giving out private info
• But few if any that prohibit media from
  publishing such information

8
How, then, are individuals protected against
media disclosure?

• Tort law (civil law)
• Developed as result of court decisions (common
  law)
• Relatively new concept (cf. libel law)
• Tort law allowing suits against media dates only
  to 1890
• 4 separate categories of privacy law recommended
  only in 1960
• And not all states recognize all 4

9
What are the 4 categories of privacy tort?

• 1. Appropriation
• 2. Intrusion
• 3. Private Facts
• 4. False Light

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Whats a less kind synonym for appropriation?

• Stealing!
• Appropriation is
• Using a persons name, picture, or voice
• Without permission
• For commercial or trade purposes
• Youre making money by appropriating (taking)
  something associated with someone else

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What are the 2 types (sub-torts) of
appropriation? Why the distinction?

• Distinction who the plaintiff is
• Commercialization
• Plaintiff is private figure
• Right of publicity
• Plaintiff is public figure (celebrity)

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What do the torts protect?

• Commercialization protects private persons
  dignity
• (Ga. Supreme Court, 1905 privacy is important
  component of human dignity)
• But only while person is alive
• Right of publicity protects monetary value
• i.e., celebs ability to control how her public
  image is used and sold
• A property right can be controlled after death
  (like a will)

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What must plaintiff prove in order to win
appropriation suit?

• That the plaintiffs
• Name
• Voice, or
• Likeness
• Identity
• was used
• without permission
• for commercial purposes

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Whats a name?

• Persons actual name
• Persons former name/identity
• Kareem Abdul-Jabbar won suit against Oldsmobile,
  whod used his given name (Lew Alcindor) in
  advertising

15
Whats a likeness?

• Physical appearance what someone looks like
• Typically, face
• But if a person can recognize plaintiffs body,
  plaintiff might win
• Using look-alikes is problematic
• Courts have ruled against advertising using
  improperly exploiting the image of famous
  people

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Why voice?

• Ford used a Bette Midler sound-alike for a
  commercial
• And lost appropriation (right of publicity) suit
  to Midler
• Why?
• Court said Ford had appropriated part of Midlers
  identity (distinctive singing style)
• People might reasonably believe Midler had sung
  in the commercial

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Name, likeness, voice

• All seem pretty clear-cut
• But how can you appropriate someones identity?
• For that, we turn to Kelsey
• And the case of White v. Samsung

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White v. Samsung

• Samsungs commercial did not use Vanna Whites
• name
• likeness
• photograph
• voice
• But appropriated her identity
• In a way that was explicitly NOT parody or satire

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Key elements of White v. Samsung

• Reasoning
• Samsung didnt appropriate name, likeness, etc.
  (Ca. code)
• Didnt violate Lanham Act (impression that White
  was sponsor/endorser)
• Did appropriate identity, under general right of
  publicity tort
• Was not a parody (was a true ad)
• Dissents disagreed that identity was stolen

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How can media defend against appropriation suit?

• Newsworthiness
• First Amendment
• Consent
• Incidental Use

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Why is newsworthiness a defense?

• Newspapers have a commercial purpose
• But they also have another purpose
• To inform the public
• Speech in news media is protected even though
  it is carried in a form that is sold for profit
• Articles about matters of public concern (if
  court finds they are) are newsworthy

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How might First Amendment serve as appropriation
defense?

• Satire may be protected (free expression)
• Baseball cards, yes posters, no (unless they
  depict newsworthy people/events)
• Artistic relevance if celebritys name/photo is
  relevant to a works artistic purpose
• If title of work (including celebs name) is
  relevant to its content, artist may win
• Fellinis Ginger and Fred, Aquas Barbie Girl
  not Outkasts Rosa Parks

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Some other First Amendment defenses

• Transformativeness does the work transform the
  original by adding new creative elements? (If so,
  may be protected by FA.)
• Comments on celebrities
• Changes meaning of image
• Places image (of celeb) in new context
• Howeverchanging facts of a persons life into
  fiction might not be protected

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Why is consent a defense?

• Because the celebrity (or model) allowed likeness
  to be used!
• Thats why photographers and producers get signed
  releases (consent forms)
• Consent need not be explicitit can be implied

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What is incidental use?

• A court might rule that celebs name or likeness
  is only incidental to works primary purpose
  (commercial gain), thus protected
• On one page of a book
• A passing reference in Entourage

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What is the overarching issue of balance here?

• Celebrities rights to earn money from their own
  names likenesses vs.
• Medias right (FA) to free expression

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Do the appropriation torts seem like privacy
issues to you?

• Why? Why not?
• Well, if youre not satisfied, then consider the
  next group
• intrusion

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Whats the balance issue here?

• Individuals right to privacyand specifically,
  to retain ones dignityvs.
• Medias right (obligation?) to report on matters
  of public interest (FA free press)

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How might a journalist intrude?

• Physical entrance (unwelcome) upon private
  property
• Which might be both intrusion and trespass
• Intrude into private matters in a way a
  reasonable person would find highly offensive
  (beyond the limits of decency)

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Provide examples of such means

• Paparazzi often exceed acceptable means of
  getting information
• Offensively trespassing
• Causing accidents
• Reporters entering businesses not to buy products
  but to reportmay be intrusion

31
Intrusion and reasonable expectations

• Its intrusion only if person had reasonable
  expectation of privacy
• You dont expect privacy when walking down public
  street
• But you might expect to have privacy (within
  limits) while approaching an abortion clinic
• Colorado law 8-foot bubble around individuals
  100-foot radius around entrance

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How might media defend against accusation of
intrusion?

• Consent
• if person gave consent for journalist to enter,
  she cant expect privacy
• Implied consent
• If person continues to respond to journalists
  questions, consent is implied

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Can false pretenses (deceit) be used as a defense?

• Sometimes, yes!
• If consent to enter is granted, some courts will
  allow it (esp. when property is business, not
  private home)
• Just because the persons true identity was not
  disclosed doesnt nullify the permission to enter
• Restaurant critics, undercover reporters
• But impersonating a police officer or public
  official is usually not an acceptable defense

34
Why isnt newsworthiness a defense?

• Because the tort concerns not the publication of
  the information, but the intrusion of the
  newsgathering process itself
• Its all about the techniques used to get the
  story
• Publishing the information may bring about other
  torts (libel)

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The 3rd privacy tort private facts

• What is the private facts tort?
• Publicizing information that is
• Truthful
• Highly embarrassing to reasonable person
• But not of legitimate public concern (it is
  private, or intimate)
• And whose act of publishingthat is, not the
  facts, but the publication of themis highly
  offensive to a reasonable person

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What are intimate facts?

• Facts a person does not want the community to
  know
• Finances
• Medical condition
• Domestic issues
• Sexual activities
• The issue not that the facts are offensive, but
  their being published is offensive

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What personal facts are NOT private?

• Information in a public record
• E.g., criminal record
• Personal information that has already been made
  public elsewhere

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What is legitimate public concern?

• The media have tremendous latitude in determining
  what is newsworthy (which basically means of
  legit public concern)
• A typical test is the information
• Something the public is entitled to know?
• Or just something published for morbid or
  sensational reasons (to make a stir, to sell
  papers), as opposed to being merely embarrassing?

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What does publicizing mean here?

• Hint not the same as it does in a libel suit!!
• In private facts torts, publicizing means
  giving widespread publicity to (not just
  involving a third party)
• Revealing information in mass media is definitely
  publicizing
• Revealing info to small but relevant groups of
  people (e.g., fellow employees) may also be

40
How can the media defend themselves against PF
suits?

• First Amendment!
• Specifically, that freedom of the press covers
  freedom to publish a story of public significance
  if it involves
• Truthful information
• Legally obtained from public records
• Unless punishing media would serve compelling
  state interest
• (SCOTUS has not yet found such an interest!!)

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What determines public significance?

• If the storys topic (not the person named) is of
  public importance
• For example, the topic of violent crime
  (including rape)
• As was the issue in B.J.F. v. Florida Star
• Take it away, Amanda!

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BJF v. Florida Star reasoning

• Info was truthful
• Info was lawfully obtained from public records
• Forcing press to assess likelihood of (losing)
  suit would have chilling effect self-censorship
• Dissent while crime perpetrators names
  can/should be public record, crime victims must
  be seen differently

43
What does lawfully obtained mean?

• Information available in indictments in a
  courtroom
• Photographs lawfully taken during trials
• Truthful information from law enforcement
  officials
• What journalists see or hear (that others could
  also have seen/heard)

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Is information in the public record private?

• No!
• Names, addresses, and phone numbers are in phone
  books
• Facts presented at public meetings

45
But what government records are not publicly
accessible?

• Grand jury proceedings
• Peoples medical records
• Peoples tax filing records

46
The 4th (and last!) privacy tort false light

• What is false light?
• Making a person appear to be something he/she is
  not
• Even if this false light cast is positive!

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How do courts/states approach false light cases?

• With skepticism
• Only 25 states allow false light suits
• 12 others explicitly forbid them

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What must plaintiff show?

• Information was (widely) published
• Plaintiff was identified
• Information was false (duh!)
• Defendant was at fault (defined as actual malice)
• Material published (not the act of publishing!)
  would be highly offensive to a reasonable person

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What is highly offensive?

• Courts consider 3 types of falsity
• Embellishment false material is added to actual
  facts
• Distortion facts are omitted, or context makes
  otherwise accurate story seem false
• Fictionalization making stuff up

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How can media defend against false light charge?

• Usually by using libel defenses
• Fair and accurate report
• Truth (substantial truth)
• Conditional privilege (press has privilege to
  report on what public officials say)