Information Privacy Law - Privacy and the Media

Communications Decency Act (CDA), 47 U.S.C. 230(c)

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." - Immunizes ISPs, blogs, social network sites and others from liability for the content posted by users.

Appropriation of Name or Likeness

"One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy" Rst. 2nd of Torts

Intentional Infliction of Emotional Distress (tort)

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Rst. 2nd of Torts, 46. The tort of intentional infliction of emotional distress can also serve as a remedy for certain privacy invasions. Since privacy invasions can often result in severe emotional distress, this tort provides a remedy. However, it is limited by the requirement of "extreme and outrageous conduct."

Appropriation of Name or Likeness - Leading Cases: Raymen v. United Senior Association (DDC 2006)

Example of a state limiting its appropriation tort to apply only when someone's name or likeness is used for commercial purposes. Held using a person's name or likeness in a non-commercial smear ad does not give rise to appropriation liability.

First Amendment Restrictions on Defamation - Dun & Bradstreet, Inc. v. Greenmoss Builders (US 1985)

For matters of purely private concern, such as providing a report on one's financial condition for use by another person or company, actual malice is not required by the First Amendment, nor any other limitations on the defamation torts.

First Amendment Limitations on IIED - Snyder v. Phelps (US 2011)

Hateful speech at a protest that concerns matters of public interest, even if targeted at a private individual, is protected by the first amendment and therefore there is no ground for IIED liability.

First Amendment Limitations on Privacy Tort Liability - Leading Cases: The Florida Star v. BJF (US 1989)

If a newspaper lawfully obtains information about a matter of public significance, state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order. Florida Starr published the name of a rape victim obtained from a publicly released police report in violation of its own internal policy and a Florida statute prohibiting printing, publishing, or broadcasting the name of a victim of any sexual offense.

First Amendment Limitations on Privacy Tort Liability - Leading Cases: Cox Broadcasting Corp. v. Cohn (US 1975)

If the information is released in court records by the gov't, the tort of public disclosure cannot apply even if the information is private and not newsworthy. E.g., in Cox the court held a state cannot impose sanctions on the press from publishing information published in court documents or open to public inspection. A journalist had published the name of a murdered rape victim discovered in a public indictment record.

First Amendment Limitations on Intrusion upon Seclusion tort

Intrusion upon seclusion tort action used improperly to impose liability on protesting near a funeral violates the First Amendment. Snyder v. Phelps (US 2011). When the tort does not involve direct restrictions on speech, it will likely have no First Amendment problems.

First Amendment Restrictions on Defamation - New York Times Co. v. Sullivan (US 1964)

Libel law must be constrained by the First Amendment to ensure speech is "uninhibited, robust, and wide-open." A public official must prove "actual malice" to prevail in a defamation action relating to his official conduct. Actual malice involves making a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Reckless disregard for the truth means, for example, that the person may have harbored doubts about the truth of the statement, but did not bother to check before publication.

Other Privacy Laws of Note: State Video Voyeurism Statutes

Many states have laws prohibiting the capturing of photos or videos of people's private parts. Some of these include criminal penalties. See, e.g., Cal. Penal Code 647(k).

Public Disclosure of Private Facts - Leading Cases: Gill v. Hearst Publishing Co. (Cal. 1953)

Matters cease to be private when they occur in public. E.g., a voluntary assumption of a particular pose in a public place waives that individual's right to privacy so long as the pose is not beyond the limits of decency, and any photograph or recording is not an invasion of privacy because the individual becomes part of the public domain.

Appropriation of Name or Likeness - Leading Cases: Finger v. Omni Publications International, Ltd. (NY 1990)

NY and other states follow the real relationship test: There must exist a legitimate connection between the use of plaintiff's name and picture and the matter of public interest sought to be portrayed for the appropriation to be permissible. In Finger, a photograph of plaintiffs, used to illustrate a magazine article without their permission, does not violate their privacy interests so long as there is a "real relationship" between their photograph and the topic of the article.

First Amendment Limitations on Appropriation - Zacchini v. Scripps-Howard Broadcasting Co. (US 1977)

No actual malice required to prevail in an appropriation action. Court held a newscaster cannot publish a performer's entire act on air without compensation because unjust enrichment.

Other Privacy Laws of Note: Revenge Porn Statutes

Non-consensual pornography, known as "revenge porn," occurs when people post nude or sexual images or videos of another person without their consent (often motivated by vengeance). In 2004, NJ adopted the first criminal invasion of privacy statute prohibiting the disclosure of someone's sexually explicit images without that person's consent. See NJ Stat. Ann. 2C: 14-9. In the past few years, many states have passed similar laws. Currently, there are revenge porn laws in 34 states and DC. In 2013, CA led the way when it enacted legislation criminalizing the distribution of images of intimate body parts taken under circumstances where the parties agree or understand that the images would remain private. See Cal. Penal Code 647(j)(4).

Defamation: distribution

One who distributes, transmits, or broadcasts on television or radio defamatory materials is also liable if she knows or would have reason to know of its defamatory character. Rst. 2nd Torts 581

False Light (tort)

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if: A. The false light in which the other was placed would be highly offensive to a reasonable person, and B. The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed Rst. 2nd of Torts, 652E

Intrusion upon Seclusion - Leading Cases: Galella v. Onassis (2d. Cir. 1973)

Paparazzi's newsgathering techniques must be no greater than necessary to protect the overriding public interest (i.e., the legitimate social need for information on celebrity must be balanced with not harassing the celebrity). Physically touching the subject or their family, causing fear of physical contact in frenzied attempts to photograph the subject, following the subject and their family too closely in an automobile, or endangering the subject or their family is a tortious invasion of privacy. Paparazzi documenting minor children of public figures is a large thumb on the scale for invasion of privacy.

First Amendment Restrictions on Defamation - Gertz v. Robert Welch, Inc. (US 1974)

Private figures do not need to establish actual malice in order to prevail in a defamation lawsuit. The state can decide the appropriate standard of liability (e.g., negligence or actual malice). But private individuals may not recover punitive or presumed damages without a showing of actual malice. Also defines a "limited purpose public figure."

Other Privacy Laws of Note: Video Voyeurism Prevention Act (VVPA), 18 U.S.C. 1801 (2004)

Prohibits capturing images or videos of people's private parts. Provides protection when a reasonable person expects to be able to disrobe without being photographed or recorded as well as when a person expects his or her private parts not to be publicly visible "regardless of whether that person is in a public or private area." The statutory jurisdiction of this federal law is limited to the special maritime and territorial jurisdiction of the US.

First Amendment Limitations on IIED - Hustler v. Falwell (US 1988)

Public figures and public officials may not recover for the tort of intentional infliction of emotional distress without showing that the publication which contains a false statement of fact was also made with actual malice (i.e., knowledge the statement was false or reckless disregard for the truth).

First Amendment Restrictions on Defamation - Curtis Publishing Co. v. Butts (US 1967)

Public figures who are involved in issues in which the public has a justified and important interest must prove actual malice to prevail in a defamation case. Extends NY Times holding to apply to public figures, not just public officials.

Public Disclosure of Private Facts - Leading Cases: Shulman v. Group W Productions Inc. (CA 1998)

Recording a car accident scene, including the victim and words she said as be extricated from the car, is of legitimate public concern (portrays the importance of emergency workers) and the court will not inquire into whether the victim's depiction was necessary for the purpose of the newscast. [court is not superior editor to the press] Court applies logical nexus test.

First Amendment Limitations on False Light - Time, Inc. v. Hill (US 1967)

The First Amendment permits liability in false light cases only if the plaintiff publicly discloses the matter with a reckless disregard for the truth or with actual knowledge of falsity (i.e., actual malice required). It is likely that the same standards apply as defamation law.

First Amendment Limitations on Privacy Tort Liability

The First Amendment provides restrictions to tort liability for the disclosure of true and false information: - For content-based restrictions on the disclosure of true information, the First Amendment requires strict scrutiny when the data pertains to a matter of public significance. When the data involves a private matter, the Supreme Court has not indicated what, if any, First Amendment restrictions would be involved. - For false information, the First Amendment follows the rules set forth in its line of cases involving defamation, generally requiring actual malice for public figures. - For the enforcement of contract or promissory estoppel that involves restrictions on the disclosure of information, the First Amendment does not provide restrictions. ---> The First Amendment does not stop the enforcement of NDAs even though the information covered by them is likely to be newsworthy

Is Public Disclosure tort constitutional?

The Supreme Court has not yet decided this issue.

The Four Privacy Torts

1. Public Disclosure of Private Facts, 2. Intrusion upon Seclusion, 3. False Light, 4. Appropriation of Name or Likeness

Public Disclosure of Private Facts - Leading Cases: Sipple v. Chronicle Publ'g Co. (Ct. App. 1984)

A newspaper column that outed as gay the hero who thwarted an assassination attempt on President Gerald Ford was newsworthy. Among the reasons for such newsworthiness: The report revealed potential bias by Ford in not publicly thanking the hero. [Court adopted the Restatement approach to newsworthiness -- community customs approach: there is a line dividing information to which the public is entitled and morbid and sensational prying into private lives for its own sake, and the line is placed by looking to customs and conventions of community]

Other Privacy Laws of Note: "Peeping Tom" Laws

A number of states criminalize peeping into people's homes or other places where they expect privacy. Many state statutes require that the perpetrator trespass onto private property in order to peep or that the perpetrator see the victim wholly or partially nude. Other states lack such restrictions. For example, Hawaii makes it a crime when one "[p]eers or peeps into a window or other opening of a dwelling or other structure adapted fo sojourn or overnight accommodations for the purpose of spying on the occupant thereof or invading the privacy of another person with a lewd or unlawful purpose, under circumstances in which a reasonable person in the dwelling or other structure would not expect to be observed." Haw. Rev. Stat. 711-1111.

Defamation

A person is liable for defamation if he makes an unprivileged publication of a false and defamatory statement concerning another to a third party with the applicable fault standard (e.g., actual malice or negligence). A defamatory statement tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Rst. 2nd Torts 558-59.

First Amendment Limitations on Privacy Tort Liability - Leading Cases: Bartnicki v. Vopper (US 2001)

A provision in the federal Wiretap Act prohibits one from intentionally disclosing the contents of a communication "knowing or having reason to know that the communication was obtained" in violation of the wiretap law. The Supreme Court held that the First Amendment prevents the application of the statute when the illegally obtained communication involves a matter of public concern. A private call between two union leaders discussing the status of negotiations with the school board, including a violent remark about the board, was secretly recorded and then played on the talk show of a union critic while negotiations were ongoing. The tape was found in the mailbox of the leader of a union opposition group who then sent it to the talk show.

Appropriation of Name or Likeness - Leading Cases: Carson v. Here's Johnny Portable Toilets, Inc. (6th Cir. 1983)

A right of publicity protects against an unauthorized commercial exploitation of celebrity identity. An unauthorized use of a famous phrase, "Here's Johnny," that is associated with a celebrity appropriates his identity as celebrity and violates his right of publicity.

Intrusion upon Seclusion - Leading Cases: Desnick v. American Broadcast Co. (7th Cir. 1995)

ABC's Primtetime Live sent seven individuals posing as patients and wearing secret cameras to investigate whether Desnick was committing malpractice. This investigative technique did not give rise to an intrusion upon seclusion because no intimate details about anyone's personal life were revealed in the reporting and no PRIVATE activities were intruded upon. The interests trespass law is designed to protect were not implemented. Compare with: - In Food Lion, Inc. v. ABC, undercover reporters were found to have exceeded their consent by videotaping non-public spaces of Food Lion to expose harmful food practices (but did not exceed their consent by fraudulently obtaining a position with Food Lion). And note: - In Pearson v. Dodd (DC 1969), court held that intrusion tort liability does not extend to those who merely receive information even if know that information has been improperly obtained by intrusion.

Intrusion upon Seclusion - Leading Cases: Nader v. Gen. Motors Corp. (NY 1970)

Although generally people don't have an expectation of privacy in public, "overzealous surveillance" in public can be actionable when the "information sought is of a confidential nature" and the defendant's conduct is "unreasonably intrusive" (i.e., not available through normal inquiry or observation).

Public Disclosure of Private Facts - Leading Cases: Sidis v. F-R Publ'g Corp. (2d. Cir. 1940)

An article about a child prodigy who retreated from public spotlight for many years was newsworthy because it is of public interest to give a status report on people were once well known.

Appropriation vs. Right of Publicity

Appropriation is developed before right of publicity in case law by Prosser. Appropriation shields ppl who have NOT placed themselves in public eye. i. Protects dignity and peace of mind against emotional distress Right of publicity first recognized in Haelan Laboratories. i. Protects ppl who have placed themselves in the public eye ii. Right to exploit commercial value of their identity that derives from their celebrity iii. Property-like interest iv. Part of appropriation

Other Privacy Laws of Note: Blackmail Laws

Blackmail laws address threats to expose discreditable secrets unless a person pays money.

Communications Decency Act (CDA), 47 U.S.C. 230(c) as interpreted by Zeron v. AOL (4th Cir. 1997)

CDA 230 immunizes an ISP that fails to remove a defamatory posting by a user even after the ISP knows it's defamatory. Rationale? Liability upon notice of defamatory content would have a chilling effect on the freedom of internet speech, which is directly contrary to Congress's purpose with enacting 230 of CDA.

Intrusion upon Seclusion - Leading Cases: Dietemann v. Time (9th Cir. 1971)

Entering a person's home or home office under false pretenses and secretly recording his activities is actionable. The first amendment does not protect clandestine photography or secret recording in a person's home for purposes of newsgathering because these are not indispensable tools of newsgathering. Note it is not an invasion of privacy to repeat what one hears or sees.

Public Disclosure of Private Facts - Leading Cases: Bonome v. Kaysen (Mass. Sup. 2004)

[Concerning privacy issues in memoirs] Where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern. Takeaway: As long as you can find a larger theme that is detailed or relates to the private facts, you can survive the nexus standard

How to determine if someone is a public figure

o All-purpose Public Figures: people who have general fame or notoriety. Deemed a public figure for all issues. o Limited Public Figures: people who are involved in a particular controversy. They are deemed public figures with regard to stories about the context or controversy that makes them public figures, but for everything else, they remain private. See Gertz.

False Light vs. Defamation

o Defamation requires some form of reputational injury o False light, on the other hand, can compensate exclusively for emotional distress • A plaintiff could recover from false light even if the matter improves his or her reputation • False light concerns one's peace of mind o Another difference with defamation: • False light requires a wider communication of information False light requires publicity whereas defamation just requires publication

Public Disclosure of Private Facts (tort)

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (1) would be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public." Rst. 2nd of Torts 652D. Publicity requires widespread disclosure in most jurisdictions. Though sometimes public disclosure will be found if the plaintiff has a special relationship with the small group to whom the information was disclosed. See, e.g., Miller v. Motorola (medical facts disclosed to coworkers of plaintiff sufficient to establish publicity for public disclosure of private facts tort). The last element--"not of legitimate concern to the public"--is known as the "newsworthiness test" and is designed to protect free speech interests.

Intrusion upon Seclusion (tort)

"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." Rst. 2nd of Torts Section 652(B). "The intrusion itself makes the defendant subject to liability even though there is no publication or other use of any kind of the photograph or information outlined." Id. cmt. b.

Defamation: republication

"One who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it" Rst. 2nd of Torts 578

Intrusion upon Seclusion - Leading Cases: Shulman v. Group W Productions (Cal. 1998)

(1) Journalists recording a scene of an accident is not an unusual occurrence; a reasonable person should not expect privacy when being rescued from an accident scene. (2) However, recording conversations between the victim and the rescue workers without the victim's consent is an intrusion of the victim's privacy because a reasonable person would not have an expectation of privacy in those conversations that might concern medical information, etc. (3) Journalists recording and being present in an ambulance or air ambulance also intrudes on a victim's privacy because a reasonable person would expect that every person present in that space is there for the sole purpose of helping them (i.e., expect privacy). (4) While the constitution protects the publishing of private facts if such facts are newsworthy, the constitution does NOT protect news-gathering into private places of seclusion in pursuit of publishable material. (5) Are such intrusions highly offensive? Court in Shulman says yes

Essential Points

(1) Most states recognize privacy torts; (2) the privacy torts and other related torts have wide applicability in a variety of contexts; and (3) the first amendment creates significant restrictions on the privacy torts. These reach their apex when public figures or information of public concern are at stake.

Social Network Theory as it relates to the Publicity requirement in Public Disclosure of Private Facts tort

- Case law differs regarding the number of people who are told information to make such information public, one theorist argues for a social network theory. o Network theory seeks to assess the probability that information disclosed to one member of a particular group or community will be disseminated to others outside of that realm o Information should be deemed private so long as it remains in a confined group -- no matter how large the group Law should recognize that a particular person expects information to stay within those boundaries Three factors that affect likelihood of data staying within a particular group: 1. How interesting the information is (the more interesting, the more likely it is to spread beyond the group) 2. The norms that a particular group has with regard to spreading the kind of information at issue 3. And the way the group is structured and how information generally flows within and beyond the group NOTE: if the court in Sipple had applied the social network theory to whether the information had already been disclosed, the case may have come out differently

Approaches to Newsworthiness Test for Public Disclosure of Private Facts

Courts use at least three newsworthiness tests to decide if the matter is of legitimate public concern: 1. The "Leave it to the Press" Approach - defer to editorial judgment 2. The "Community Customs" Approach - focus on social norms The line is drawn when publicity ceases to be giving information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. See Sipple (adopting the Restatement's newsworthiness test). 3. The "Nexus" Approach - require a "logical nexus" between the person whose privacy was invaded and a matter of legitimate public interest. - This is the restatement test plus a search for a logical nexus/relationship between matter reported about plaintiff and a matter of legitimate public interest - See, e.g., Shulman W (held recording a car accident scene, including the victim and words she said as being extricated from the car, is of legitimate public concern (portrays importance of emergency workers) and the court will not inquire into whether the victim's depiction was necessary for the purpose of the newscast) - See also, e.g., Bonome (where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern; as long as you can find a larger theme that is detailed or relates to the private facts, you can survive the nexus standard) --> Compare with German case that had similar facts but different outcome: - In German case, court found violation of right of personality of real-life model for "Esra" in novel (who was love interest of narrator) because not enough fictionalization. -- As the author makes up more stuff (fictionalizes story), more weight is given to his right of publicity. -- Court issues an injunction that keeps the novel from being published

Defamation: libel v. slander

Defamation law consists of two torts—libel and slander. Libel is defamation in tangible form—written or broadcast via TV or radio. Slander is defamation spoken directly to other people.

How does defamation relate to privacy law?

Defamation relates to privacy law because one of the cornerstones of privacy law the ability to correct errors in one's record (privacy about control over self-image she projects to society; a person has a legal interest in their reputation).

First Amendment Limitations on Appropriation - Comedy III Productions v. Saderup (Cal. Sup. Ct. 2001)

Depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment. Saderup makes original drawing of Three Stooges without authorization and sells it on lithographs and T-shirts. Court holds not significantly transformative enough to avoid liability. (applies principles of copyright law) The inquiry is whether the work is significantly transformative or whether the value of the work does NOT derive primarily from the celebrity's fame.

Post-Mortem Right of Publicity

Different states set different terms for post-mortem rights E.g., in CA post-mortem right of publicity expires 70 years after the person dies.

Appropriation of Name or Likeness - Leading Cases: Arrington v. NY Times (NY Ct. App 1982)

Does not matter if the person in the photograph used for an article disagrees with the author's message

Public Disclosure of Private Facts - Leading Cases: Daily Times Democrat v. Graham (Ala. 1964)

EXCEPTION TO GILL: When a photo of a public scene is found to be indecent, that photo is not newsworthy. The person who is the subject of the photo has not waived their right of privacy in that instance just by being in public.

First Amendment Limitations on Public Disclosure of Private Facts tort

The first amendment requires strict scrutiny if the information is truthful and involves a matter of public concern. See The Fla. Star v. BJF; Bartnicki v. Vopper

Other Privacy Laws of Note: California Anti-Paparazzi Act, Cal. Civ. Code Section 1708.8

The first anti-paparazzi law in the United States. Among other things, it prohibits capturing images, video, or audio with enhancing devices. Although it is similar to the tort of intrusion upon seclusion, the statute only requires that the violation be offensive rather than highly offensive, and the statute provides for treble damages. Note the Act does not supplant existing privacy torts, just adds rights and remedies to them. The Act recognizes both physical invasions of privacy and constructive invasions of privacy (i.e., the plaintiff had a reasonable expectation of privacy under the circumstances regardless of whether there was a trespass). The Act applies even if no image or recording is ever captured or sold. However, the Act does not punish the sale or dissemination of images or recordings in violation of the Act.