A closer look at privacy

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A closer look at privacy

• How Brandeiss theorieshave affected media law

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Four types of privacy law
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Four types of privacy law

• Commercial appropriation of name or likeness

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Four types of privacy law

• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts

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Four types of privacy law

• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts
• False light

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Four types of privacy law

• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts
• False light
• Intrusion upon physical seclusion

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Appropriation

• Dustin Hoffman case shows there can be a fine
  line between commercial and editorial use

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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
  doesnt pertain to contents

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Not protected
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Protected

• Bush, Cheney, and Rumsfeld

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Protected

• But is Warhols art truly transformative?

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Disclosure of private facts
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Disclosure of private facts

• Embarrassing private facts

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Disclosure of private facts

• Embarrassing private facts
• Not newsworthy

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Disclosure of private facts

• Embarrassing private facts
• Not newsworthy
• Highly offensive

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Disclosure of private facts

• Embarrassing private facts
• Not newsworthy
• Highly offensive
• To a reasonable person

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False light
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False light

• Libel Jr.

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False light

• Libel Jr.
• Individual represented in a false and highly
  offensive manner before the public

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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

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Intrusion
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Intrusion

• Intentional invasion

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Intrusion

• Intentional invasion
• Of a persons physical seclusion or private
  affairs

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Intrusion

• Intentional invasion
• Of a persons physical seclusion or private
  affairs
• In a manner that would be highly offensive

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Intrusion

• Intentional invasion
• Of a persons physical seclusion or private
  affairs
• In a manner that would be highly offensive
• To a reasonable person

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Newsgatheringand publication

• Intrusion pertains solely to newsgathering

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Newsgatheringand publication

• Intrusion pertains solely to newsgathering
• Similar to trespassing Miller v. National
  Broadcasting Co.

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Newsgatheringand 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

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Other privacy torts

• Fraud
• Food Lion v. ABC

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Other privacy torts

• Fraud
• Food Lion v. ABC
• Emotional distress
• Hustler Magazine v. Falwell

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Other privacy torts

• Fraud
• Food Lion v. ABC
• Emotional distress
• Hustler Magazine v. Falwell
• Outrage
• Armstrong v. HC Communications

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Other privacy torts

• Fraud
• Food Lion v. ABC
• Emotional distress
• Hustler Magazine v. Falwell
• Outrage
• Armstrong v. HC Communications
• Wiretapping
• One-party states and two-party states

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Hoffman v. Capital Cities/ABC

• Los Angeles Magazine crossed the line between
  editorial and commercial use

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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?

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McNamara v. Freedom Newspapers

• Soccer player photographed with genitals exposed

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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

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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?

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The Florida Star v. B.J.F.

• Highlights difference between ethics and the law
• The Florida Stars own ethics policy was violated
  by publishing name
• Victim suffered serious harm from Stars actions

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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)

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The Florida Star v. B.J.F.

• Highlights difference between ethics and the law
• Media cannot be punished for naming rape victims
  and juvenile
• Marshalls three grounds
• Information was lawfully obtained
• Information was publicly available
• Timidity and self-censorship could result

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Diaz v. Oakland Tribune

• Was Toni Ann Diazs transgender status newsworthy
  or not? Three-part test
• Social value of facts published
• Depth of intrusion into private affairs
• Extent to which person voluntarily courted
  notoriety

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Diaz v. Oakland Tribune

• Was Toni Ann Diazs transgender status newsworthy
  or not?
• Judge Barry-Deal says Diazs status was not
  newsworthy, citing attempt at humor

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Diaz v. Oakland Tribune

• Was Toni Ann Diazs transgender status newsworthy
  or not?
• Judge Barry-Deal says Diazs status was not
  newsworthy, citing attempt at humor
• Entirely true story about the president of a
  colleges student body

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Diaz v. Oakland Tribune

• Was Toni Ann Diazs transgender status newsworthy
  or not?
• Judge Barry-Deal says Diazs status was not
  newsworthy, citing attempt at humor
• Entirely true story about the president of a
  colleges student body
• Is Judge Barry-Deal playing editor?

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Shulman v. Group W Productions

• Shulman sues on two grounds
• Disclosure of private facts
• Intrusion

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Shulman v. Group W Productions

• Shulman sues on two grounds
• Judge Werdegar throws out private-facts claim on
  grounds that judges cant act as superior
  editors

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Shulman v. Group W Productions

• Shulman sues on two grounds
• Judge Werdegar throws out private-facts claim on
  grounds that judges cant act as superior
  editors
• Allows intrusion claim to move forward

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No special protectionfor newsgathering

• Miller v. National Broadcasting Co.
• Intrusion into a private place
• In a manner that is highly offensive to a
  reasonable person

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No special protectionfor newsgathering

• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v. Cowles Media
• Judge Werdegar The press in its newsgathering
  activities enjoys no immunity or exemption from
  generally applicable laws

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No special protectionfor newsgathering

• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v. Cowles Media
• Judge Werdegar Group Ws story is
  constitutionally protected, but not its reporting
  techniques

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No special protectionfor newsgathering

• Miller v. National Broadcasting Co.
• Branzburg v. Hayes and Cohen v. Cowles Media
• Judge Werdegar Group Ws report is
  constitutionally protected, but not its reporting
  techniques
• Should such reporting be protected?

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Hustler Magazine v. Falwell

• Libel claim rejected, Supreme Court considers
  claim of emotional distress

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Hustler Magazine v. Falwell

• Libel claim rejected, Supreme Court considers
  claim of emotional distress
• Justice Rehnquist cautions against trying to play
  editor

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Hustler Magazine v. Falwell

• Libel claim rejected, Supreme Court considers
  claim of emotional distress
• Justice Rehnquist cautions against trying to play
  editor
• Recourse?

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Armstrong v. HC Communications

• A literally outrageous case

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Armstrong v. HC Communications

• A literally outrageous case
• Florida law against outrage punished a true
  report about a newsworthy story

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Armstrong v. HC Communications

• A literally outrageous case
• Florida law against outrage punished a true
  report about a newsworthy story
• What do you think?