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