Media Law Chapter 5: Invasion of Privacy
Incidental Uses
If individual's appearance in a commercial massage is only incidental to the commercial message- likely no claim.
Commercial Use in Magazines and Books
Magazines: pure fiction items solely entertainment purpose may be deemed commercial use even if not connected with ad pitch. News, edu, or social comment not. Cover pic safe if derived from inside news/edu content. - Examples: nude black man in boxing ring likeness to M. Ali, favored Ali b/c no news or info related; man dressed leprechaun St. P's Parade for story about Irish immigrants ruled relevant; black teen who not subject of book, pic used on cover ruled irrelevant b/c pic was only to boost sales.
Newsworthiness Special Problem: Lapse of Time
Melvin v. Reid (Red Kimono case) a 1930's movie about the murder and prosecution. Won for public disclosure of private facts.
Important things to remember about Consent:
Minors can't consent EVER.
McNamara v. Freedom Newspaper
Newspaper published a photo of soccer player w/ genitals exposed. he sues. he loses b/c photo was at a public event.
Private Facts
Not anything that appears in public. Not matters of Public record
Consent: Model Releases
Protects against appropriation lawsuits, makes the photo more marketable, Better to get consent in writing, Better to get consent signed on the spot.
***COX BROADCASTING CO. V. COHN (1975)
Supreme court rules that Georgia law that allowed claim againts a reporter for having published the name of a rape victim learned from access to public records is Unconstitutional.
1) Distortion
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2) Embellishment
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3 Categories of False Light
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3 Sources of Law on Email Privacy:
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3) Fictionalization
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4 Signs that Fraud has been committed:
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Betraying Identity
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Children's Online Privacy Protection Act (COPPA) 1999
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Companion Torts to Privacy Torts
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Criminal Statutes to Protect Privacy
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Cyberspace Privacy: Collecting and Accessing Data
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Cyberspace Privacy: Email and Websites
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Cyberspace Privacy: Hacking, Snooping, and the Famous
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Cyberspace Privacy: Spyware
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Cyberspace Privacy: Stored Communications Act
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Electronic Communications Privacy Act (ECPA)
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Electronic Communications Privacy Act of 1986
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Emotional Distress
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Emotional Distress: Harsh Satire and the Hustler Case
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Emotional Distress: Shocking News Content and Tactics
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FCC Rule regarding Recording Phone Calls for Broadcast Purposes
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FCC and FTC Role in Cyberspace Privacy
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False Light
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False Light Elements
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False Light Privileges
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False Light Situations
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False Light vs. Defamation vs. Libel vs. Slander
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Federal Wiretap Act
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Food Lion v. ABC (1992)
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Fraud
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Harassment
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Hidden Cameras: Questions to Ask First:
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Intentional Infliction of Emotional Distress / Outrage
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Intrusion
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Intrusion: Expectation of Privacy
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Intrusion: Limits of Liability
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Intrusion: Offensiveness
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Intrusion: Public Places
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Intrusion: Use of Subterfuge
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Intrusion: Use of Subterfuge: Duping Friends and Relatives
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Intrusion: Use of Subterfuge: Hidden Cameras
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Is it False Light?
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Is it Intrusion?
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Paparazzi
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Photo Stalking
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Privacy in Cyberspace
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Psychic Marketing Group v. ABC (1999)
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Recording and Intercepting Calls
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Trespass
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Appropriations Defenses
1) NEWSWORTHINESS 2) NONTRANSFORMATIVE 3) CONSENT
Newsworthiness Defense
A legal acknowledgement that the public has a right to know in some cases, even at the expense of privacy.
Public Record Privilege
Applies to all branches of government, not just courts. Limited to public records and proceedings.
FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Diaz v. Oakland Tribune
Court found no legitimate interest in this otherwise unconnected disclosure. Sex change doesn't have to do with fitness for office.
Disclosure of Private Facts
Unwarranted publicity about private life-punishes truthful, but private & embarrassing reports
Marla Ross v. Midwest Comm
documentary questioning the guilt of a man convicted of rape.
Name or Likeness
includes nickname, voice, or any other mark of personal identity. EX) Johnny Carson v. "Here's Johnny" Portable Toilets inc. Carson sued claiming appropriation.
Texas Property Code
property Right established. All uses permitted after 50 yrs.
4 DISTINCT PRIVACY TORTS
(1960 CA Law Review) 1) Commercial appropriation of name or likeness 2) Public disclosure of embarrassing private facts 3) Placing an individual in a false light 4) Intrusion upon physical seclusion
COMMERCIAL USE
- "Exploitation directly for trade OR self-enrichment purposes." - News not commercial use. - To Deem Commercial Use: direct, self-serving link between individual's identity and promotion of product, service, OR organization.
APPROPRIATION
- "The commercial use of a person's name OR likeness without consent." - primarily compensating for embarrassment or shame resulting from unwanted publicity
Claims of Appropriation of Name or Likeness Tort...
- Best defined privacy tort -Accepted by all 50 states - Often combo multi claims
*** DIETEMANN V. TIME, INC. (1971)
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*** HUSTLER MAGAZINE V. FALWELL (1988)
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*** NEW YORK TIMES V. SULLIVAN
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*** TIME, INC. V. HILL (1967)
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***SHULMAN V. GROUP W PRODUCTIONS (1998)
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ZACCHINI V. SCRIPPS HOWARD BROADCASTING (1977)
- Only USSC decision in appropriation case, narrow and rare exception to appropriations rules. - FACTS: Human Cannonball act filmed by News reporter shown on news. CLAIM: appropriated professional property & threatened future economic value - RESULT: USSC held that no 1st Am. privilege applies when a professional performer's entire act is broadcast w/o consent under the context of news.
1890 Harvard Law Review Article by Brandeis and Warren
- Reacting to gossip-oriented newspapers in yellow journalism era, proposed that the law recognize a right of privacy. - FEAR OF 2 THINGS: 1) technology allows private to become public instantaneously 2) "Yellow Journalism," "Penny Press," "Sensationalization" - States recognize a civil law right of privacy early 1900's
Origins of Privacy Law
-Young & unsettled area of law. - Nothing inherited from England. Nothing specifically in the Constitution guaranteeing right to privacy. - New technologies = increasing concern "right to be left alone"
Deceased Celebrities
Defamation and privacy claims may die with the celebrity, but right of publicity lives on. Texas recognizes the right o publicity with commercial value at the time of death.
Highly Offensive Disclosure
Disclosure that someone keeps picture of their parents next to their bed just isn't offensive.
