Com360: Invasion of Privacy

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Com360 Invasion of Privacy
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The Right to Be Left Alone

• Four Torts (Civil Wrongs)
• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts
• Placing an individual in a false light
• Intrusion upon physical seclusion

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Appropriation

• It is illegal to appropriate an individuals name
  or likeness for commercial or trade purposes
  without consent.
• It is a property right protects the economic
  value of the name or likeness
• It is a personal rightprotects an individual
  from the embarrassment and humiliation that can
  occur when a name or picture is used

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Commercial use

• What are advertising and trade purposes?
• For profit or other interest
• Use of someones name or likeness in an
  advertisement in any media outlet including
  websites (includes manuals, recruiting material,
  etc.)
• Use of someones name or likeness in a media
  product (television show, movie)

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News Exception

• Individuals cannot sue for appropriation in
• a news story. News has been widely
• interpreted by the courts to include anything
• that is not an explicit advertisement.
• However
• the Zacchini case (fair use)
• Muhammad Ali case (relevance)
• Playgirl case (false depiction)

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News v. commercial use controversies

• Incidental use
• News Promos
• The use of a persons name or likeness in an
  advertisement for a media product is usually not
  regarded as an appropriation if the name or
  likeness has been or will be part of the content

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Art or commercial use?

• ETW Corp. v. Jireh Publishing, Inc. 2003

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Name Or Likeness

• Names?
• Not limited to full names
• Can be nicknames, stage names, pen names
• A likeness?
• Photographs, paintings, sketches, cartoons
• Fictional characters
• Look alikes / imitations (e.g.,Vanna White case)
• Sound alikes

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Consent as a Defense

• Written consent is generally uncontestable
• When Consent Wont Work
• Consent today may not be valid in the distant
  future
• Some persons (minors, wards of the state) cannot
  give consent
• Consent to use a photograph does not apply if the
  image is materially altered or changed
• Consent not in exchange for money

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Reminder Four Torts

• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts
• Placing an individual in a false light
• Intrusion upon physical seclusion

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Public disclosure of embarrassing private facts

• The interest protected is that of reputation. It
  is in reality an extension of defamation ... with
  the elimination of the defense of truth

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Public disclosure of embarrassing private facts

• First, the disclosure of the private facts must
  be a public disclosure, not a private one.
• Second, the facts disclosed to the public must be
  private facts, not public.
• Third, the matter made public must be one that
  would be offensive and objectionable to a
  reasonable man of ordinary sensibilities.

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Disclosure of private facts

• Disclosure of private facts (true information)
  that are embarrassing and not newsworthy.
  (Defamation laws do not apply because the facts
  are true)
• Public
• Public view is a fair game (but there are
  exceptions, e.g., fun house woman case)
• Public records and proceedings

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Expectation of Privacy

• A reasonable expectation of privacy exists in a
  private residence, hospital, hotel room, private
  office etc.
• No Expectation of Privacy in Public or in full
  view (sidewalks, parks, beaches, stores,
  restaurants, etc.)
• An intrusion suit cannot be based on the
  recording of activities that took place in public
  

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Disclosure of private facts

• Private
• The Highly Offensive Disclosure Standard
• The Newsworthiness Standard
• Legitimate Public Interest
• Humiliation for Its Own Sake
• Facts from the Past

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Highly Offensive

• Physical disorder
• Unusual sexual practices
• Bizarre personal habits

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Free speech and the right to privacy

• Nicole "Nikki" Catsouras

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The accident and the photos

• Nikki Catsouras was traveling her fathers
  Porsche 100 mph onear Lake Forest, Calif., when
  she clipped another car and lost control,
  slamming into a concrete tollbooth, killing her
  instantly.
• The pictures, taken by California Highway Patrol
  officers and e-mailed outside the department,
  spread around the Internet, making their way to
  about 1,600 Web sites, according to an
  investigator hired by family.

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The case and decision (so far)

• Catsouras family sued the California Highway
  Patrol for invasion of privacy.
• In 2008, Judge Steven L. Perk dismissed the case.
  He stated that the CHP officers were not under
  any responsibility for protecting the privacy of
  the Catsouras family.
• The family's legal team is appealing.
• See a report on ABC 20/20 at
• http//abcnews.go.com/Video/playerIndex?id3979266

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California Highway Patrol settles with family for
2.37m (L.A. Times Jan 31, 2012)

• The family of an Orange County teen killed in a
  2006 car accident has reached a 2.37million
  settlement in a lawsuit against the California
  Highway Patrol over graphic crash photos that
  were leaked by the agency.
• Pictures of the gruesome scene, never intended
  for public release, were leaked by two highway
  patrol dispatchers and quickly spread online.
• As part of the settlement the CHP agreed to
  cooperate with the family in fighting to remove
  the images that can still be found on the
  Internet.

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Facts from the PastThe "Red Kimona" case

• Red Kimona film (1925) was written and produced
  by Dorothy Davenport Reid, a feminist filmmaker
  during the silent movie period. It presented the
  true story of a former prostitute Gabrielle
  Darley who was charged with murder and found
  innocent.

• .

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The "Red Kimona" case

• In 1918, Darley married a high society figure
  Bernard Melvin and she abandoned her old life.
• When the movie came out in 1925, Mrs. Melvin
  (Darley) sued for 50,000 and won in California
  court.
• The movie producers argued that all the facts of
  the case were true and open in court records.
• The court said "Any person living a life of
  rectitude has that right to happiness which
  includes a freedom from unnecessary attacks on
  his character, social standing, or reputation."

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The "Red Kimona" case

• Important the case shows earlier approaches of
  the court. Today the plaintiff would not
  prevail.
• 1. Information for the movie taken from public
  records
• 2. There was other material widely available
• 3. The Darley case would be considered
  newsworthy

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Reminder Four Torts

• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts
• Placing an individual in a false light
• Intrusion upon physical seclusion

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Placing an individual in a false light

• Distortion (out of context)
• Embellishment (changing the context)
• Fictionalization
• Distinguished from defamation by the damages
• False Light damages are not to reputation, but
  personal embarrassment and anguish

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Distortion (out of context)Leverton v. Curtis
Publishing Co., 1951,

• The plaintiff in 1947, when she was a child of
  ten, was involved in a street accident in the
  city of Birmingham, Alabama. A motor car nearly
  ran over her.
• The photograph of the child being lifted to her
  feet by a woman bystander appeared in a newspaper
  the day following.
• Twenty months later it was used by the Curtis
  Publishing Co. as an illustration for an article
  on traffic accidents, with emphasis on pedestrian
  carelessness, under the title, "They Ask To Be
  Killed"

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Embellishment (changing the context) Cantrell v.
Forest City Publishing Co 1974

• When a reporter pretended to have interviewed
  widow of man killed in bridge collapse,
  describing her face and talking about her courage
  in refusing charity, and yet had never bothered
  to interview her, the court said he had acted
  with malice, that is, knowingly publishing
  something false.

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Reminder Four Torts

• Commercial appropriation of name or likeness
• Public disclosure of embarrassing private facts
• Placing an individual in a false light
• Intrusion upon physical seclusion

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Intrusion

• It is illegal to intrude, physically or
  otherwise, upon the seclusion or solitude of an
  individual in a manner that would be offensive
• Purpose of the information gathering
• Means of information gathering cameras, hidden
  recording devices, false pretenses

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Protection from unwanted observation

• The main issue here is not the publication, but
  the process of gathering information

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Intrusion and Expectation of Privacy

• A reasonable expectation of privacy exists in a
  private residence, hospital, hotel room, private
  office etc.
• No Expectation of Privacy in Public or in full
  view (sidewalks, parks, beaches, stores,
  restaurants, etc.)
• An intrusion suit cannot be based on the
  recording of activities that took place in public
  

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Miller v NBC 1986.

• Paramedic arrived at Mr. Millers home. Camera
  crew followed all the way to the bedroom filming
  the resuscitation without obtaining consent from
  Millers wife or anyone else.
• CONSIDERED INTRUSION

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Mark v King Broadcasting 1980.

•  A television station followed a story about
  criminal charges against a local pharmacist and
  filmed him through the window during the usual
  business hours.
• NO INTRUSION. The person could have been seen by
  any passerby.

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Shulman v. Group W Productions 1998.

• In a case settled before it could reach the
  Supreme Court, the California Supreme Court
  determined in Shulman v. Group W Productions that
  a car-accident victim had a reasonable
  expectation of privacy once she was inside a
  medical helicopter.
• CONSIDERED INTRUSION

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Dietemann v Time 1971

• Life Magazine reporters entered Dietemanns house
  under false pretenses of being in need of medical
  help. Their true intention was to investigate
  Dietemann who was a quack (minerals, herbs,
  etc.).
• Dietemann won mostly because of expectation of
  privacy in his own home. Especially because the
  reporters used eavesdropping devices in his
  private den.

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Intrusion and the Internet

• There is no expectation of privacy when
  information is voluntarily made accessible to
  another person or placed in the flow of commerce