Privacy Law for Copy Editors

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Privacy Lawfor Copy Editors

• By Arati Bechtel

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Privacy

• The right to be left alone
• Four types (or torts) of invasion of privacy
• Private facts
• Intrusion
• Appropriation
• False light

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Private Facts

• Publication of non-newsworthy, private facts that
  would be highly offensive to a reasonable person.
• Examples details about medical, psychological
  condition or treatment

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Private Facts

• Important notes for news media
• If theyre newsworthy, you can report private
  facts.
• Anything in a public record, proceeding, place or
  event isnt usually private.
• This type of privacy violation is not recognized
  in all states, such as North Carolina.

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Is it an invasion of privacy under the private
facts tort?

• to write that Robert Downey Jr. has bipolar
  disorder?
• to write that Angelina Jolie adopted her
  children?
• to write that baseball player Moises Alou
  urinates on his hands to toughen them?

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Images Privacy Barber Case

• Time magazine took a picture of Dorothy Barber in
  the hospital without permission and wrote about
  her unusual eating disorder that caused her to
  lose weight despite eating a lot of food, calling
  her the starving glutton.

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Images Privacy Bridges Case
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Images Privacy Bridges Case

• In 1982, a Florida newspaper published a photo of
  a nude woman holding a small towel over her front
  and fleeing an apartment with a police officer.
  The womans estranged husband had held her
  hostage and then committed suicide.
• Court said the picture told a newsworthy story
  that took place in public.

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Intrusion

• Highly intrusive physical, electronic or
  mechanical invasion of a persons solitude or
  seclusion.
• Privacy violation occurs at the time of
  newsgathering, not publication.

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Intrusion

• Example using a hidden camera in someones home
  without permission breaking into voice mail or
  e-mail
• Important question to ask Does the person have a
  reasonable expectation of privacy in this
  particular place or area?
• Another one Did the journalist use deception to
  gain access?

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Common Custom

• It used to be that news media could go into
  private places (with officials) if it is common
  custom to do so in that state.

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Fletcher v. Florida Publishing

• A teenager was
  killed in a house
  fire. A Florida Times-
  Union photographer
  took this photo while
  accompanying fire
  officials at the private
  home.

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Common Custom is Uncommon

• The rule now is that news media may not accompany
  officials on raids and other official duties on
  private property without consent of property
  owners.

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Cincinnati Enquirer

• In 1998, the Enquirer fired a reporter for using
  unethical or illegal means of accessing voice
  mail for a series of stories on the Chiquita
  companys business practices.
• However, if someone else steals voice mail,
  intercepts cell phone call, etc., and shares it
  with a journalist, the media wouldnt be liable
  for intrusion.

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Shulman v. Group W

• Cameraman for On Scene Emergency Response
  taped scene of auto accident and then followed
  victims on board a rescue helicopter.

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Shulman v. Group W

• Court said Accident occurred on public highway,
  so victims had no reasonable expectation of
  privacy at accident scene.
• But they did have a reasonable expectation of
  privacy on the helicopter.

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Expectation of Privacy

• Do you have a reasonable expectation of privacy
  in your office?
• in your car?
• in your living room?
• in your bathroom?
• in your back yard?

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Images Privacy Barbras case

• Californiacoastline.org published an aerial photo
  of Barbra Streisands property in Malibu, labeled
  Streisand Estate, Malibu.
• Streisand sued for 50 million in May 2003 under
  private facts and intrusion, among other torts.
• Suit dismissed in December 2003.

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Barbras House
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Appropriation

• Use of a persons name, likeness or identity for
  trade or advertising purposes without consent.
• Example using a news photo in an ad, as in LSU
  student newspaper.
• This is the oldest of the privacy torts.
• Not usually relevant for professional news media.

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Appropriation

• What is a trade or advertising use?
• Ads
• Products, such as T-shirts, posters, mugs

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News, History Exemptions

• What about news, history, etc?
• Using an individuals name or picture in a news
  story, work of history, biography or other
  factual use is NOT a commercial use.
• Incidental use Using an individuals name or
  photo to promote a news use is not commercial use
  unless the promotion implies the individual
  endorses the publication.

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Images Privacy Tonya

• In 2002, a company was selling bottles of Tonya
  Hot Sauce that featured a cartoon of Tonya
  Harding and said, Guaranteed to assault your
  taste buds! and not for the weak kneed!
• Is this appropriation?

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False Light

• Publication of false and highly offensive
  information about a person.
• Example using a photo out of context so that it
  distorts the truth.

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False Light

• Not recognized in all states, including North
  Carolina, partly because its too similar to
  libel.
• If story involves public figure or public
  official, plaintiff has to prove actual malice.

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Images False Light

• Sat. Evening
  Post used
  newspaper
  photo of a
  child hit by a car
  (through
  no fault of her
  own) with story
  on pedestrian carelessness
  distortion.

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False Light Avoided

• Police had used surveillance video during our
  Mardi Gras Riots to arrest several rowdies. 
• We had an A1 above-the-fold refer, which was
  part of a frame grab from the video showing a man
  drinking beer. The headline said something like
  Police use video to make arrests, but that man
  was not a suspect.

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False Light Avoided

• I was proofing the page, and we were able to
  rewrite the hed to avoid characterizing the man
  as a drunk, disorderly criminal.

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Pop Quiz

• During collective-bargaining negotiations between
  a teachers union and the local school board, an
  unidentified person intercepted and recorded a
  cell phone conversation between the chief union
  negotiator and the union president. The
  negotiator suggested shooting off the front
  porches of school board members houses if they
  didnt agree to sufficient raises.

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Pop Quiz

• A tape of the call made its way to local
  newspapers, which published transcripts. Is the
  publication of transcripts an intrusion by the
  newspapers?

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Final Exercise Privacy Libel

• A people item comes over the AP wire E!Online
  reports that Jack Nicholson has
  obsessive-compulsive disorder.
• It explains that paparazzi hiding in trees
  adjacent to his property captured images of him
  engaged in repeated ritualistic behavior washing
  his hands, unplugging and replugging his air
  purifier over and over, walking around his pool
  three times before jumping in.

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Final Exercise Privacy Libel

• Nicholson denies he has OCD. He says hes just
  eccentric and old.

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Final Exercise Libel

• You consider publishing this brief. Analyze this
  hypothetical for libel problems for your paper
• Is it defamatory to say Nicholson has OCD?
• Would Nicholson have to prove falsity?
• What type of plaintiff is Nicholson?
• Would he be able to prove fault? How solid are
  the sources?
• Would the opinion defense apply?

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Final Exercise Privacy

• Analyze this hypothetical for privacy problems
  for your paper
• If he has the disorder Is it publication of
  private facts to report that Nicholson has OCD?
• If he doesnt have the disorder Does the brief
  potentially place Nicholson in a false light?

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Questions?

• What questions do you have?
• Any comments?