Chp 5: Invasion of Privacy

Subterfuge

Disguises, false pretenses, hidden cameras, etc.

Punitive Damages

Extra damages awarded to the plaintiff to make an example out of the defendant.

Dietemann V. Time, Inc.

Illustrates that there is no blanket newsworthiness privilege, no First Amendment immunity in intrusion cases. Also serves as warning to journalists considering the use of surveillance equipment. ABC PrimeTime Live TV show - California Supreme Court 1999 ruled that in a workplace where the public generally does not have access, employees may enjoy a legitimate expectation that their conversations with co-workers will not be secretly videotaped - even if those conversations are not completely private from all others in the workplace.

Private Facts

Information about an individual that is not available to the public and is of a nature that people generally keep confidential. A key element to a lawsuit for wrongful disclosure of private facts. Many times about procreation.

Hustler Magazine V. Falwell

Jerry Falwell parody in Hustler Magazine, "Jerry Falwell Talks About His First Time." Falwell was a public figure because he put himself into the debate (so he must prove actual malice - falsity/reckless disregard). Falwell could NOT recover because the jury said that no one believe this ad was true, therefore there was no falsity claim. Decision very important to political cartoonists/satirists (If Falwell would have won damages it would have chilled the speech of other satirists for fear of being sued). Balance of info to the public while protecting Falwell and his emotional state.

U.S.A (-NY)

Location where privacy law is common law.

New York and California

Locations where misappropriation is a statute, due to the amount of celebrities who are most likely to sue for misappropriation of likeness.

To obtain a release

Make the release as broad as possible.

When signing a release

Make the release as narrow as possible.

Complaint

Making allegations of fact.

Bernadette Washington

Misappropriation claim filed by Washington against a state agency (PRT/Leslie Advertising) for invasion of privacy for using her photo in Smiles Magazine for advertisement. A civil case filed in state court in the Court of Common Pleas. Washington asked for compensation (punitive/actual damages)

Expectation of Privacy Claims

Not very common and plaintiffs rarely win because in most instances, the individual was not in a place where they could REASONABLY expect privacy

Eavesdropping

Sometimes a crime. You cannot record a conversation that you are not a part of (crime/tort). In S.C. you CAN record a conversation you are a part of and consent from the people involved.

Restatement (second) of the Law of Torts

States that when the individual appears in news reports, the commercial element is insufficient even if the individual's appearance might (in a less direct way) help sell newspapers.

Product Endorsement Ad

The clearest form of Commercial Use.

Reputation

The interest that is protected by libel law.

Internal Feelings

The interest to be protected in invasion of privacy cases.

Snackenburg

The leading case of intrusion. A photographer who secretly filmed models changing.

Right of Publicity

The legal right of individuals to control and profit from the commercial use of their own identities.

Misappropriation

The privacy tort of appropriating a person's identity for commercial purpose without consent.

Public Record Privilege

The right to accurately disseminate information that appeared in an open governmental proceeding or in public documents, without incurring liability for defamation or for publication of private facts.

Companion Torts

Torts frequently coupled with privacy claims that in some way relate to honest dealings, peace of mind and personal space. (Ex: Fraud, intentional infliction of emotional distress and trespass).

Commercial Use

Use of another person's identity for trade or self-enrichment purposes.

Mary Beth Tinker Case

Wore a black arm band to school and was expelled for it. Went to the Supreme Court where the the plaintiff won due to the 1st and 14th amendments.

Elements of False Light Claim

1) Prove that the information was made public 2) Was about the plaintiff 3) Was substantially false

Outrage

An independent tort composed of intentional, outrageous conduct that causes severe emotional distress. May be called intentional infliction of emotional distress or another name, depending on jurisdiction.

Reasonable Expectation of Privacy

Likely to exist in a private residence. Also hospital rooms, ambulances, hotel rooms, private offices, dressing rooms and public toilet stalls.

Spyware

Software that tracks a computer user's website visits without the user's knowledge.

Privacy in Cyberspace

This is non-existent on the web.

Pearson V. Dodd

(1969) Federal Appeals Case - Files stolen from senators office and given to columnist Jack Anderson - Senator Dodd sued for intrusion but the court ruled in favor of the columnist.

Harassment

A crime or tort committed when one person follows, stalks, or interrupts another in a highly annoying or threatening manner.

Newsworthiness Defense

A defense to lawsuits for public disclosure of private facts.

Summons

Get someone to court (jurisdiction).

Outward

The direction that libel faces.

Inward

The direction that privacy faces.

Fraud is committed when a defendant:

1) makes a false representation of significant fact 2) knowing the representation is false 3) intending to induce reliance upon the misrepresentation 4) where the plaintiff did justifiably rely, resulting in damage.

Amicus Perio

"Friend of the Court"

Food Lion V. ABC

(1992) TV show PrimeTime Live sent ABC producers undercover to Food Lion to get jobs in the meat department with hidden cameras. Food Lion is considered a public figure because they advertise. There was no libel claim because they could NOT prove Actual Malice because the publication was probably true. Food Lion sued for trespassing (Producers misrepresented themselves), Fraud, and Damages (For firing workers and trouble after the broadcast - must have proved actual malice to receive). FOOD LION WON.

Four Distinct Torts

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

3 Sources for E-mail Law

1) Intrusion tort 2) State criminal statutes 3) ECPA

Photo Consent Form

A form commonly used by photographers to get their subjects' permission to use the pictures for commercial purposes.

Fraud

A misrepresentation intended to deceive another person and thereby gain some advantage, often in the process of making a contract.

Intentional infliction of emotional distress

A tort committed by outrageous conduct intended to cause severe emotional injury to another. Typically this legal claim has been used to recover for such indiscretions as practical jokes that far exceed the bounds of ordinary behavior and cause extreme humiliation.

Galella V. Onassis

Even in public the law recognizes a small zone of privacy. Legal battle between a freelance photographer and Jackie Kennedy and her kids. Onassis got an injunction on the photographer that prevented him from getting 25 ft. near her and her family but did NOT stop him from taking photos. Conduct fell within the definition of criminal harassment.

The Borat Cases (Psenicska V. 20th Century Fox)

Expressed the importance of consent forms. Many of whom appeared in the movie filed appropriation law suits. Dismissed by the Federal District Court. No matter the damages, they had all signed consent forms.

Embellishment

False Light category. Cases where false information was added to journalistic accounts. (Ex: Cantrell V. Forest City Publishing Co. 1967).

Fictionalization

False Light category. The use of recall, identifiable characters in tales born of imagination.

Distortion

False Light category. Typically a matter of photographs or video being used out of context.

Electronic Communications Privacy Act

Federal legislation passed in 1986 that makes it a crime to use devices to intercept or record others' communications.

Tous V. Loftus

California Supreme Court case - a person generally has no grounds to claim intrusion against a relative or friend for volunteering disclosing their personal information, a violation of ones reasonable expectation of privacy when third parties are deceptive.

Trespass

Companion Tort. Going into someone else's property where you have no right to be.

Newsworthiness (as defense)

Complete defense to claims of publication of private facts but NOT in the gathering of information.

Knowing Consent

Consent granted with actual knowledge of its significance; legally valid consent.

Concept of Privacy

Control your personnel space whether it be informational or personal.

Highly Offensive Disclosure

Even if truly private information is disclosed, no privacy claim exists unless the disclosure is one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. Plaintiff must convince the court that it is reasonable to react in that matter. The disclosure must have clearly overstepped prevailing notions of decency.

Paparazzi

Freelance photographers who make their living by aggressively pursuing celebrities to obtain candid pictures.

Name or Likeness

In the tort of appropriation, any mark or symbol of personal identity, such as a photograph, voice or popular nickname.

False Light

In tort law, a representation of an individual in a false an highly offensive manner before the public. Recognized in many states as a form of invasion of privacy.

Appropriation

In tort law, the use by one person of another person's name or likeness without consent.

New York

Location where privacy law is a statute.

Cox Broadcasting V. Cohn

Public Records case. (1975) Supreme Court case. Stands only for the rule that neither criminal nor civil law may prohibit the disclosure of information that has already been learned from the public record. Does not prohibit a privacy-concious government from trying to prevent the media from learning the information in the first place.

Written Consent

Stronger of the 2 types of consent.

Elements for Emotional Distress Claims

1) There must be outrageous or highly offensive conduct, as judged by the reasonable person of average sensibilities. 2) Defendant must have acted with the intent to cause distress 3) Defendant must have acted with the intent to cause distress 4) Plaintiff must prove that serve emotional distress did occur

Intrusion

A tort consisting of a highly offensive invasion of a person's physical seclusion or private affairs. One of the legally recognized forms of invasion of privacy.

Model Release

A written consent form, signed by people who appear in photographs to be used commercially.

Wilson V. Lane

Cops do NOT have the authority to invite photographers onto property where they have a warrant/arrest.

California Deceased Celeb Statute

Established a transferable property right in an individuals "name, voice, signature, photograph, or likeness" if it had commercial value at the time of death. Expires 70 years after the celeb's death.

Time, Inc. V. Hill

(1967) First false light case to reach the Supreme Court. The court held that in false light privacy cases involving matters of public interest, the plaintiffs must prove that the defendants disclosed the information with knowledge of its falsity or in reckless disregard for the truth. Narrowing of actual malice standard in libel law; is the plaintiff a public figure.

Actual Damages

Damages rewarded to the plaintiff in a libel case that aim to put them back where they were before prior to the libel claim.

Consent

Defense for misappropriation, as well as the 3 other privacy torts. May be written or verbal.

Consent and Public View (Place)

Defenses for intrusion claims.

Consent and Public Records

Defenses for publication of private facts claims.

False Light Categories

Distortion, Embellishment, Fictionalization