Broadcast Law Week 6

1
Broadcast Law - Week 6

• Right of Privacy
• Recognized in the U.S. for only a little over 100
  years.
• By the end of the 1800s, with the proliferation
  of mass media, scholars started thinking about
  the right to be left alone, as a protection
  against what was seen as yellow journalism.

2
Broadcast Law - Week 6

• Right of Privacy
• Origin credited to the article The Right of
  Privacy, written by Samuel Warren and Louis
  Brandeis and published in Harvard Law Review in
  1890.
• A slight majority of state, including Illinois,
  recognize all four privacy torts, either by
  statute or common law.

3
Broadcast Law - Week 6

• Right of Privacy
• 4 separate torts
• Tort a wrongful act, other than a breach of
  contract, for which the law gives the injured
  party some legal remedy, usually money, against
  the wrongdoer in civil, not criminal court.
• There may be some criminal liability, such as
  trespass.

4
Broadcast Law - Week 6

• Right of Privacy
• 4 separate torts
• Commercial appropriation of name or likeness (or
  simply Appropriation)
• Public disclosure of embarrassing private facts
  (or simply Disclosure)
• Placing an individual in a false light (or simply
  False Light)
• Intrusion upon physical seclusion (or simply
  Intrusion)

5
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• The use of an individuals name, likeness, or
  identity for trade or advertising purposes
  without consent.
• Oldest and best-established form of invasion of
  privacy.

6
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Individuals should have the sole right to control
  the exploitation of their persona.
• Not necessarily related to celebritiesanyone can
  control their image. Similar to a property
  right.
• 3 Elements 1) commercial use 2) name or
  likeness and 3) without consent.

7
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Commercial use
• Exploitation directly for trade or
  self-enrichment purposes.
• Some direct self-serving link between the
  individuals identity and the promotion of a
  product, service, or organization.
• Exception legitimate news coverage, unless the
  celebrity depicted is used just to promote that
  media outlet without any content on that
  celebrity.

8
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Zacchini v. Scripps-Howard (1972)
• Exception to news coverage safe harbor.
• Hugo Zacchini performed as the human
  cannonball.
• He was showcasing his act in Burton Ohio at a
  county fair.
• A reporter from a Scripps-Howard owned TV station
  carried a small camera, which was spotted by
  Zacchini.

9
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Zacchini v. Scripps-Howard (1972)
• He asked the reporter to not film the performance
  and the reporter complied.
• But on the instruction of the news producer, the
  reporter returned the next day and filmed the
  entire performance.
• The entire act was broadcast during that
  evenings newscast.

10
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Zacchini v. Scripps-Howard (1972)
• Zacchini sued for appropriation and won.
• Rule 1A privilege does not apply to broadcasting
  someones entire act on a newscast without
  consent.

11
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Name or likeness
• ? must readily identifiable from the improper
  use.
• Ex name, photograph, nickname, voice, or any
  other identifiable characteristic.
• Special problem used of celebrity look-alikes
  and sound-alikes.

12
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Carson v. Heres Johnny Portable Toilets (1983)
• Company referred to its product as the worlds
  foremost commodian.
• The Tonight Show Host Johnny Carson was
  introduced each night with the phrase Heres
  Johnny, and the phrase became associated with
  Carson.
• Johnny Carson sued believing his identity was
  being wrongfully capitalized upon.

13
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Carson v. Heres Johnny Portable Toilets (1983)
• Federal appeals court agreed.
• The right of publicityis that a celebrity has a
  protected pecuniary interest in the commercial
  exploitation of his identityCarsons identity
  may be exploited even if his name, John W.
  Carson, or his picture is not used.

14
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Midler v. Ford Motor Co. (1988)
• ? was approached by ad agency Young Rubicam for
  a series of commercial for Ford Motor Co.
• Midler refused, so the agency, without her
  consent, hired one of Midlers former backup
  singers to imitate Midlers voice for the
  commercials.
• The imitation was convincing and so Midler sues
  for appropriation and won. ? 400K for Midler.

15
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• White v. Samsung (1992)
• ? ran ads depicting a robot dressed in a wig,
  gown, and jewelry.
• The robot was posed next to a game show board
  resembling that of Wheel of Fortune.
• White sued for appropriation and won. Court
  agreed that the ad clearly evoked the identity of
  Vanna White.

16
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Name or likeness
• Traditional rule it is not considered commercial
  appropriation to feature in advertising someone
  who looks or sounds like a particular celebrity,
  without the celebritys consent.
• But when the look-alike or sound-alike is used in
  a manner likely to confuse the public, some
  courts have allowed the celebrity to recover
  damages.

17
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Name or likeness
• CA and NY laws are the most stringent in this
  area.
• So if contemplating any national ad campaign, it
  is wise to make sure that you follow CA and NY
  laws even if you are not located in those states.

18
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Consent
• In short, when in doubt, get consent through a
  written model release, image license agreement,
  or endorsement deal.
• Releases can protect against appropriation
  lawsuits and makes the material more marketable.

19
Broadcast Law - Week 6

• Right of Privacy
• Appropriation
• Review Questions
• Is the context commercial, such as a product
  advertisement or promotion?
• Is someone identified by name, photo, voice, or
  otherwise?
• Is the person being exploited for commercial gain
  rather than appearing incidentally?
• Was proper consent obtained?

20
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Public disclosure of non-newsworthy, embarrassing
  private facts that would be offensive to a
  reasonable person.
• In effect, allowing the media to be sued for
  dissemination of truthful information.

21
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• If applied broadly, could have a potential
  chilling effect on legitimate news activities.
• So, the tort is confined to extraordinary
  circumstances and successful lawsuits are
  infrequent.
• 3 Elements 1) disseminated, private facts 2)
  non-newsworthy and 3) highly offensive.

22
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Disseminated, Private Facts
• At the heart of the tort is the dissemination of
  accurate information, so truth is not a defense.
• Information must be truly private, not further
  publicity of information that is already
  generally available.
• ? must prove that the information was private
  until the media came along and let the cat out
  of the bag.

23
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Neff v. Time (1976)
• A photog for Sports Illustrated took a picture of
  some Steelers fans hamming it up for the camera
  for a news story.
• One of the pictures used for the story was a
  close-up of one of the fans with his trousers
  unzipped.
• Fan sued claiming his embarrassing behavior was a
  private matter.

24
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Neff v. Time (1976)
• Court denied ?s claim because the photo didnt
  reveal anything that was private.
• The fans embarrassing behavior had been
  observable by the public.
• Rule With a few exceptions, events in public
  places are fair game.

25
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Cox Broadcasting v. Cohn (1975)
• Public record privilege case.
• Rule information obtained from trials, trial
  transcripts, and public proceedings can be
  disseminated w/o fear of a disclosure lawsuit. ?
  1A protection.
• Applies to all branches of government.
• Watch out! Not all government records are public.

26
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Non-newsworthy
• A legal acknowledgement that the public has a
  right to know, in some cases even at the expense
  of an individuals privacy.
• One might broadcast facts that are both private
  and highly objectionable, but the dissemination
  is safe from liability if the facts are
  reasonable related to a newsworthy event.

27
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Non-newsworthy
• Where is the line drawn? Courts ask juries to
  consider whether the disclosure was in line
  w/customary news content.
• Courts also consider whether the ? voluntarily
  sought a position of notoriety.
• Public figures are more likely to be considered
  w/in the scope of legitimate public concern.

28
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Non-newsworthy
• That is not to say that public figures are not
  allowed a private life--they are.
• General rule non-newsworthy information that
  represents a morbid or sensational prying into
  private lives for its own sake.
• Tort does not rest on the inaccuracy of
  statement, but rather on the unwanted publicity.

29
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Non-newsworthy
• Where is the line drawn? Courts ask juries to
  consider whether the disclosure was in line
  w/customary news content.
• Courts also consider whether the ? voluntarily
  sought a position of notoriety.
• Public figures are more likely to be considered
  w/in the scope of legitimate public concern.

30
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Highly Offensive
• Even if the private information is disclosed, no
  privacy claim can exist unless the disclosure
  would highly offensive and objectionable to a
  reasonable person.
• In other words, the jury determines whether the ?
  overstepped prevailing notions of decency.
• Hinges greatly upon prevailing mores of society,
  what are subject to change and interpretation.

31
Broadcast Law - Week 6

• Right of Privacy
• Disclosure of Private Facts
• Review Questions
• Has publicity been given to the private of
  anothers life?
• Is the disclosed information of no legitimate
  public interest?
• Would the publicity be highly offensive or
  embarrassing to a reasonable person?

32
Broadcast Law - Week 6

• Right of Privacy
• False Light
• Representation of an individual in a false and
  highly offensive manner before the public.
• Elements 1) publication of false information
  and 2) highly offensive.

33
Broadcast Law - Week 6

• Right of Privacy
• False Light
• Cases generally falls into 3 categories
• Distortion material used out of context or
  mismatched.
• Embellishment adding false information or taking
  liberties with the news.
• Fictionalization involves use of real people or
  characters born out of imagination. ? Ripped
  from the headlines.

34
Broadcast Law - Week 6

• Right of Privacy
• False Light
• Disclaimers such as any similarity to real
  people are purely coincidental wont necessarily
  relieve liability.
• If a piece begins with real people but shifts
  into fiction, the audience must be aware of this.

35
Broadcast Law - Week 6

• Right of Privacy
• False Light
• Similar to defamation in that both torts involve
  the dissemination of false information.
• False light ? compensates for embarrassment or
  anguish.
• Defamation ? compensates for damage to
  reputation.
• Some states have not adopted false light b/c of
  its similarities to defamation.

36
Broadcast Law - Week 6

• Right of Privacy
• False Light
• Review Questions
• Has a person been placed before the public in a
  false light?
• Did the communicator act with negligence or, if
  the subject is a public person, with reckless
  disregard for the truth?
• Would the false portrayal be highly offensive to
  a reasonable person?

37
Broadcast Law - Week 6

• Right of Privacy
• Intrusion
• Intentional invasion of a persons physical
  seclusion or private affairs in a manner that
  would be highly offensive to a reasonable person.
• Elements 1) intentional invasion 2) of
  anothers seclusion and 3) highly offensive.
• Does not involve publication, the mere intrusion
  is the basis of the tort.

38
Broadcast Law - Week 6

• Right of Privacy
• Intrusion
• Threshold question was the individual in a place
  where he/she could reasonable expect privacy?
• In other words, is there are reasonable
  expectation of privacy?
• Rule a reasonable expectation of privacy does
  not exist on public sidewalks, parks, beaches,
  dept. stores, or in open dining rooms of
  restaurants.

39
Broadcast Law - Week 6

• Right of Privacy
• Intrusion
• Review Questions
• Does this person have a reasonable expectation of
  solitude or seclusion, such as would be found in
  a private residence?
• Is the seclusion intentionally intruded upon,
  either physically or otherwise?
• Would the intrusive conduct be highly offensive
  to a reasonable person?

40
Broadcast Law - Week 6

• Right of Privacy
• Companion Torts
• Typically, privacy lawsuits involve 2 or more
  privacy torts
• Also involve other torts such as fraud, trespass,
  and intentional infliction of emotional distress.

41
Broadcast Law - Week 6

• Right of Privacy
• Intentional Infliction of Emotional Distress
• Outrageous conduct that is calculated to cause,
  and in fact does cause, severe mental or
  emotional distress.
• ? must prove severe emotional distress.

42
Broadcast Law - Week 6

• Right of Privacy
• Intentional Infliction of Emotional Distress
• Hustler v. Falwell (1988)
• Hustler published a parody interview liquor ad
  wherein the Rev. Jerry Falwell was supposedly
  discussed losing his virginity to his mother in
  an outhouse while drunk on Campari liquor.
• Falwell sued for libel, invasion of privacy, and
  I.I.E.D.

43
Broadcast Law - Week 6

• Right of Privacy
• Intentional Infliction of Emotional Distress
• Hustler v. Falwell (1988)
• The first 2 claims were dismissed, but the jury
  gave Falwell 200k on the I.I.E.D. claim.
• SC, applying the NY Times v. Sullivan actual
  malice standard, reversed the I.I.E.D. claim.
• 1A protection for some forms of satire.

44
Broadcast Law - Week 6

• Right of Privacy
• Special Areas
• Electronic Eavesdropping
• 2 types 1) all parties must consent or 2) at
  least one party to the conversation must consent.
• IL both parties must consent, except in cases of
  criminal surveillance.

45
Broadcast Law - Week 6

• Right of Privacy
• Special Areas
• Broadcast of Phone Calls
• FCC Rule 73.1206 must gain permission from
  caller before recording telephone conversations
  for broadcast or broadcasting a live phone call.
• Permission implied if caller calls into a program
  that typically broadcasts phone calls.