Mass Media Law CH 7 Textbook

urban; privacy; 13; New York

It wasn't until the end of the 19th century that the need for a right to privacy became a public issue in the U.S. America was rapidly becoming an _________ nation. The streets of many cities were clogged with poor immigrants or first-generation Americans. Big city daily newspapers used a variety of sensational schemes to attract these potential readers. Editors often played out the lives of the "rich and famous" on the pages of their newspapers, permitting their readers to vicariously enjoy wealth, status and celebrity. It was this kind of journalism that apparently pushed two Boston lawyers, Samuel D. Warren and Louis D. Brandeis, to use the pages of the Harvard Law Review to propose a legally recognized right to ___________. Warren, the scion of a prominent Boston family, urged his friend (and future Supreme Court Justice) Brandeis to help him write the piece, "The Right to Privacy." The article appeared in 1890 and can be regarded as the fountain from which the modern law of privacy has flowed. The pair argued, "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops.'" Warren and Brandeis said they were offended by the gossip in the press, which they said had overstepped in every direction the obvious bounds of propriety and decency. To stop this illicit behavior, the two young lawyers proposed that the courts recognize the legal right of privacy; that is, citizens should be able to go to court to stop such unwarranted intrusions and also secure money damages for the hardship they suffered from such prying and from publication of private material about them. It was _____ years from the time the Warren and Brandeis article was first published until the first state recognized the law of privacy. The state of ______________ adopted a law that prohibited the commercial exploitation of an individual and called it a right to privacy. Interestingly, the right this new statute sought to safeguard was not even mentioned in the famous Harvard Law Review article. *The law of privacy grew slowly and sporadically over the next century.* All but 3 states today recognize some kind of legal right to privacy. North Dakota has thus far refused to recognize the tort, and there have been no reported privacy cases in either Vermont or Wyoming. Other states have rejected one or more of the 4 torts that constitute the modern might to privacy. And until the European Convention on Human Rights became a part of the law in Western Europe, nations like England and France didn't recognize the invasion-of-privacy tort. Privacy law is far more idiosyncratic from state to state than is libel law. In other words, it is somewhat easier to make generalizations about libel law that reflect the law in every state or in most states than it is to make these generalizations about the law of privacy. Part of the problem is that some states have protected the right to privacy through statutes, and these often are very particular. The New York statute, for example, is quite explicit about how the right to privacy is protected in that state, and some aspects of the law common in most statutes are not a part of the New York law. Today the law of privacy encompasses protection for at least 4 separate legal wrongs. Three of these have absolutely nothing to do with the law as outlined in 1890 by Warren and Brandeis.

tort; name;

Invasion of privacy is a multifaceted _______ that is designed to redress a variety of grievances. These include the commercial exploitation of an individual's _______ or likeness, the intrusion on what might be called our private domains, the public revelation of private and embarrassing facts about someone, and the libel-like publication of embarrassing false information about a person.

*Constitutional law*; *Statutory law*; *Common law*; *Administrative law*

The 4 sources of privacy law in the U.S. are: __________________________: At both the federal and state constitution levels, courts recognize privacy rights, either explicitly in the text of the constitutions or implicitly through their language. Although neither the U.S. Constitution nor the amendments to it specifically use the word "privacy," the U.S. Supreme Court has recognized an unenumerated or implied federal constitutional right to privacy residing in multiple amendments. (For instance, the 4th Amendment protects people against unreasonable searches and seizures in their homes, papers and effects, and it generally requires a warrant issued by a judge, upon a showing of probable cause by law enforcement officers, to search such places and items. In addition, the Supreme Court has said that the term "liberty" within the 14th Amendment's Due Process Clause includes certain privacy interests. In contrast, the constitutions of at least 10 states specifically include the word "privacy" or "private" in their texts. (like California, Florida and Hawaii). _____________________: Many statutes at both the federal and state levels protect privacy interests. For instance, the federal Family Educational Rights and Privacy Act (FERPA) limited public access to student educational records, while the federal Health Insurance Portability and Accountability Act (HIPPA) protects the privacy of individually identifiable health information possessed by health-care providers and health plans. The federal Children's Online Privacy Protection Act (COPPA) is designed to protect the privacy of children (and their parents) when using the Internet and other modes of digital technology. States also have statutes that protect privacy interests. In fact, several states now have statutes that give heirs the right to control the publicity interests in the names and likenesses of deceased celebrities. In addition, states like Florida have adopted statutory exemptions to their public records laws in order to prevent the public disclosure autopsy images. Such exemptions protect the privacy interests of the deceased's loved ones. ______________: We concentrate on 3 common law privacy causes of actions (legal theories of recovery) in this chapter: 1) appropriation/right of publicity; 2)intrusions into seclusion; and 3) public disclosure of private facts (also called publication of private information). These common law privacy theories provide remedies to individuals for certain invasions of their privacy interests. A 4th common law privacy theory called false light is discussed in a more limited fashion because it significantly overlaps with defamation law and because an increasing number of states refuse to recognize it existence. Some states, it should be noted, have adopted statutes that codify all or part of these common law privacy theories. ______________________: Increasingly, the Federal Trade Commission (FTC) finds itself playing a front-and-center role as the nation's chief privacy policy maker and enforcer. In 2012, the FTC issued a massive report called "Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers." In recent years, the FTC has settled claims against both Facebook and MySpace regarding alleged misrepresentations and deceptions in their privacy policies. Furthermore, the FTC today is concerned about the privacy implications of facial recognition technology used by both the government and private sectors. As this indicates, technology has forced many changes in the way we consider privacy. Any reference in this book a decade ago to facial recognition technology and the FTC's concerns about it would have been unimaginable.

technology; 9/11; social networking

Now, in the middle of the second decade of the 21st century, there is little doubt that the privacy that still exists is in jeopardy; partly because of dramatic changes in communication ________________, partly because of concerns raised after the _______ terrorist attacks, and partly because a new generation of Americans, weaned on dozens of exhibitionist reality TV shows, seems more than willing to give away their privacy in exchange for the opportunity to participate in electronic ___________________ and perhaps achieve 15 minutes of Warholian fame or notoriety.

19th; 20th

The abstract concept of the right to privacy didn't enter the American ethos until the end of the ______ and beginning of the _______ centuries.

*appropriation*; *right of publicity*

The first kind of invasion of privacy is called _____________________ and is defined as taking a person's name, picture, photograph or likeness and using it fro commercial gain without permission. Appropriation is technically the only right of privacy guaranteed in some of the states that have privacy statutes. When a celebrity's name or likeness is used without his or her consent, the appropriation is said to affect the celebrity's _____________________. The laws are limited to outlawing this one kind of behavior. But as a matter of fact, judicial construction of these laws has allowed them to encompass some of the other aspects of invasion of privacy as well.

a reasonable expectation of privacy

*It is illegal to intrude, physically or otherwise, upon the solitude, seclusion or private affairs of an individual if a reasonable person would find the manner of the intrusion to be highly offensive.* When people hear the phrase "invasion of privacy," the intrusion tort is what frequently comes to mind. Cameras with telephoto lenses, hidden microphones, snooping through records-all of these are associated with intrusion. Intrusion has a lot in common with both civil and criminal trespass. It is not unusual for a plaintiff to sue for both trespass and intrusion in the same lawsuit. but the causes of action are different: Not every intrusion is a trespass, and vice versa. The law governing the two legal actions is different as well. Intrusion is the focus of this section. The intrusion tort differs from the other 3 invasion-of-privacy torts in a very important way: Intrusion cases focus exclusively on how information is gathered and collected, not on how it is reported or published. The act of gathering the material constitutes the intrusion. A successful intrusion lawsuit thus can be brought regardless of whether or not the information gathered is ever published or broadcast. The most important legal element in an intrusion case is what the courts call "__________________________________." This is a subjective determination in many cases. But if a court rules that a plaintiff did not enjoy a reasonable expectation of privacy when the defendant gathered or attempted to gather the information at issue, the intrusion suit will fail.

uncontestable

*The law prohibits only the unauthorized use of a name or likeness for commercial or trade purposes.* States with privacy statutes usually require that written authorization or consent be given before the use. On the other hand, consent thus does not always need to be in writing to be effective. Written consent is usually _____________________ and will stand the as a solid defense against an appropriation claim, even if the plaintiff argues that he or she didn't really understand what he or she was signing. Attempts to convince a court that oral consent was given can be met by the plaintiff's denial, and then the fact finder will have to decide who is telling the truth. Also, oral consent can be withdrawn up to the moment of publication or broadcast. The consent issue is most easily resolved if the subject has signed a model release. But such legal documents are not always required to establish consent.

*false light*

Finally, the publication of material that places a person in a _____________ is the fourth category of the law of privacy. This category is an outgrowth of the first area of the law, appropriation, and doesn't at first glance seem like an invasion of privacy at all, but it is regarded as such by the law. Because false light overlaps significantly with libel and because a growing number of states don't look favorably upon the false light category of privacy, it is given less space in this edition of the book than the other 3 areas.

oldest

Appropriation: *It is illegal to use an individual's name or likeness for commercial or trade purposes without consent.* Appropriation is the ___________ of the 4 privacy torts. Until recently it was the most comprehensible. Appropriation protects an individual's name or likeness from commercial exploitation. Two of the earliest privacy cases on record are good examples of how the appropriation tort is supposed to protect an individual from commercial exploitation. One case set standard and in 1903 the nation's first privacy law was adopted in NY: Use of an individual's name or likeness without the individual's consent for advertising or trade purposes was made a minor crime. In addition to the criminal penalty, the statute allowed the injured party to seek both an injunction to stop the use of the name or picture and money damages. Two years later Georgia became the first state to recognize the right of privacy through the common law.

*Simplified Choice for Businesses and Consumers*; *Greater Transparency*

The tremendous growth of communication via interactive computer systems (i.e., the Internet) has generated substantial challenges in the application of the law of privacy. The relative ease of access and use of these systems has resulted in numerous privacy problems. FTC, in "Privacy by Design", calls for companies to incorporate privacy protections into their practices, such as data security, reasonable collection limits, sound retention and disposal practices, and data accuracy. Other key principles are: ________________________________:Companies should give consumers the option to decide what information is shared about them, and with whom. This includes a "Do-Not-Track" mechanism that would provide a simple way for consumers to control the tracking of their online activities. _______________________________: Companies should disclose details about their collection and use of consumers' information, and provide consumers access to the data collected about them. Although nearly recommendations, the FTC report called on Congress to consider enacting baseline privacy legislation and it reiterated an earlier call for data security and data broker legislation. The bottom line for now is that if self-regulatory efforts continue to flounder and fail, we can expect a large wave of federal privacy statutes in the near future.

Bullard vs. MRA Holding

What are advertising and trade purposes? While minor differences exist among the states-especially among the states with statutes-a general guideline can be set down: Advertising or trade purposes are commercial uses; that is, someone makes money from the use. Here are examples of the kinds of actions that may be regarded as a commercial use: 1. *Use of a person's name or photograph in an advertisement on television, on radio, in newspapers, in magazines, on the Internet, on posters, on billboards and so forth.* 2. *Display of a person's photograph in the window of a photographer's shop to show potential customers the quality of work done by the studio.* 3. *A testimonial falsely suggesting that an individual eats the cereal or drives the automobile in question.U 4. *Use of an individual's name or likeness in a banner ad or some other commercial message on a Web site.* 5. The use of someone's likeness or identity in a commercial entertainment vehicle like a feature film, a television situation comedy or a novel.* A 2013 decision by the Supreme Court of Georgia in _____________________, LLC illustrates well the first of these categories. The case centered on Lindsey Bullard, who claimed the use of her photo on a box cover for a "Girls Gone Wild" video constituted misappropriation of her likeness. Back in 2000, when Bullard was just age 14 and a middle schooler, she exposed her breasts during spring break to two unknown men in a parking lot in Panama City, Florida. Although aware the men were taping her, Bullard did not know what future use they might make of the video. Ultimately, the video was sold to MRA Holding, which markets "Girls Gone Wild." A still photo of Bullard flashing was taken from the video and put on the box cover. MRA Holding blocked out Bullard's breasts and superimposed the inscription "Get Educated!" in that space. This image also appeared on TV commercials and Internet ads. In ruling for Bullard, Georgia's high court wrote that "under the facts pf this case, Bullard can be seen as endorsing the 'College Girls Gone Wild' video through the use of her image." The court rejected the notion that Bullard's consent to be videotaped amounted to consent for MRA Holding to use her image on the box cover. "The men to whom Bullard exposed her breasts need indicated to Bullard that they worked for, had any connection with, or had any intention of giving Bullard's image to, MRA for the purpose of selling 'College Girls Gone Wild' videos. Nor did Bullard have any contact with MRA to give MRA permission to use her image for that purpose," the court reasoned. Is there another problem with lack consent in this case? As described in the next few pages, minors typically cannot consent to the use of their names or likeness without additional permission from a parent or guardian. Having already found for Lindsey Bullard, however, the court "declined to reach that issue."

*Intrusion*

_______________ is the second type of invasion of privacy, an area of the law growing rapidly today, and is what most people think of when invasion of privacy is mentioned. Intrusion upon the solitude and into the private life of a person is prohibited.

Booth rule; republication; rebroadcast; republished

The _________________ is closely related to the incidental use doctrine; in fact, some courts refer to it as part of that doctrine. The rule provides fairly broad protection to the mass media in most states if an individual's name or likeness is used in advertising for a particular information medium. In other words, the use of a person's name or likeness in an advertisement for a magazine or a newspaper or a television program is usually not regarded as an appropriation if the photograph or name has been or will be a part of the medium's news or information content. The controversy that sparked this rule involved Academy Award-winning actress Shirley Booth. She was photographed in Jamaica, and the picture was published in a feature story in Holiday, a popular travel magazine. Holiday then used the same picture to advertise the magazine itself. The full-page advertisement told readers that the picture was typical of the material appearing in Holiday magazine and urged people to advertise in the periodical for subscribe to Holiday. Booth did not object to her photograph in the feature story, only to its use in the subsequent advertisement. The courts, however, refused to call the use an invasion of privacy. The New York Supreme Court ruled that the maintenance of freedom of expression depends in no small part on the economic support of the press by advertisers and subscribers. And to win such support a publication or broadcasting station must be able to promote itself. Since the picture in this case was first used in an information story, its subsequent use in a promotion for the magazine was really only incidental to its original use and was merely to show the quality and content of the magazine. The picture was not used to sell spaghetti or used cars. Hence the use did not constitute an invasion of privacy. Originally it was believed that the Booth rule protected only the _____________________ or _________________ of material previously used in the medium. Some courts still follow this rule, whereas other courts have enunciated a broader protection. For example, a U.S. District Court ruled that it is permissible for a newspaper or magazine to use previously published material in a television advertisement for the publication. That is, a name or likeness that appeared in a newspaper story can be ________________ in a television advertisement for that newspaper. No one yet knows just how far the courts will go in extending the Booth rule. The tendency, however, seems to be to expand the protection rather than restrict it.

people; discrete

A few caveats or warnings are appropriate before each of the four aspects of privacy law is detailed. First, only __________ enjoy protection for their right to privacy. Corporations, labor unions, associations and so forth can protect their reputations through libel law, but they do not have a right to privacy. (Other laws protect businesses against unfair commercial exploitation.) The right to privacy is most easily understood if each of the four areas of the law is considered as a ___________ unit. Don't try to apply the defenses that may be applicable in appropriation to publication of private information. They don't work. There is much about the law of privacy that defies logic. Why is putting someone in a false light considered an invasion of privacy, for example? Challenging the logic of the law serves little purpose and usually makes learning the law more difficult. The law of privacy is young-about 125 years old if you start with the Warren and Brandeis proposal. There are a lot of legal questions that haven't been answered, or at least answered satisfactorily. Bad court decisions are abundant. Trial judges rarely see invasion-of-privacy cases; most lawyers are equally distant from the law. Finally, it is worthwhile to raise the issues of ethics and morality. The following pages provide for journalists, photographers and advertising and public relations practitioners a kind of road map of how to stay within the law. But these roads aren't necessarily the ones that should be followed at al times. Publish and be damned is still an appropriate response in some situations. But more often a thoughtful journalist will take a different tack.

personal

An illegal intrusion can occur in myriad ways. Eavesdropping to overhear a conversation could be an intrusion. Gathering __________ information from an individual's private records or computer could also be an intrusion. The use of a telephoto lens on a camera to photograph a subject might violate the law as well. The court will ask in every case in which an intrusion is alleged whether the subject of the intrusion "enjoyed a reasonable expectation of privacy" when the information was collected. This issue is key to determining whether an invasion of privacy took place. A reporter who sits at a table in a restaurant and eavesdrops on the conversation at the next table is not committing an intrusion. If other diners can hear the coversation, the speakers did not enjoy a reasonable expectation of privacy. Courts have yet to rule on whether an Internet user who is sending or receiving material through a wireless connection-so-called wi-fi-enjoys a reasonable expectation of privacy. And while courts are generally in agreement that personal e-mails sent or received on a company computer are not shielded from company officials, there has been no determination whether e-mails sent on a company computer by using a personal e-mail account, such as one provided by Yahoo!, are also open to scrutiny by company officials.

control

What all 3 of these conceptions privacy have in common is the notion of __________-the ability of individuals to control decisions, physical space and the flow of information. Discussions and debates about privacy thus frequently implicate other concepts such as access, secrecy and anonymity.

younger; damage

While the legal right to privacy is about 125 years old, the notion of a right to publicity is far ___________. And it really has only been in the past 3 decades that right to publicity litigation has accelerated. There are two reasons for this. The first is the tremendous growth of the cult of celebrity in the U.S. and the world. Stories and pictures about entertainers, musicians, sports personalities and others overflow in the traditional mass media and online. Entire publications, television shows, and Web sites are devoted to them. Second, American businesses and other organizations have seen this trend and now decorate their products, ads, promotions, and so on with the likenesses and names of these celebrities. And many of these individuals believe they should be compensated for these uses. Today there are probably as many right-to-publicity cases being litigated as right-to-privacy lawsuits. In the following discussion of the appropriation tort, the two-right of publicity and right of privacy-will be intermingled. The law is basically the same; only the ___________ asserted by the plaintiff in the lawsuit is different.

Mass media; young; developing; newspaper reporting

_____________ have been integrally involved with the growth of the law of privacy, since the vast majority of early lawsuits were aimed at the press in one way or another. Over the past century state legislatures and courts have fashioned legal rights that permit people who believe they have been injured to sue the mass media for infringing on their rights of privacy. The law is ragged in many ways because it is ________ and still __________________, unlike libel law, which has existed for several centuries. And today, while concerns over the right to privacy range far beyond the behavior of the mass media, it is interesting to note that it was the intrusive __________________ of the late 19th century that is the likely genesis of the law that exists today.

*Privacy of space*

___________________: In this traditional conception of privacy, people possess a geographical or physical zone of privacy into which others may not intrude or trespass. Professor Jerry Kong refers to this as an individual's territorial solitude. The notion that a person's home is his or her castle captures the essence of this view. The legal theory described in this chapter called intrusion provides a remedy for violations of one's physical space by means such as trespass or high-tech recording of images and sounds.

*Privacy of autonomy* interference Roe vs. Wade

_________________________: In this light, privacy means private and personal decision making by an autonomous individual, free from government ___________________ and intrusion. The most controversial niche of this conception of privacy is the right of a woman to choose to have an abortion found in the U.S. Supreme Court's 1973 ruling in _____________. More recently, the Court wrote in Lawrence v. Texas "our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." Put differently, there is a right of decisional privacy possessed by individuals (and sometimes couples and families) that should be free from undue government interference.

*Privacy of information*

_____________________________: The right of informational privacy-that there are some facts and data about oneself that should not be revealed either to or by others-is a third conception of privacy. It is particularly relevant today, as companies like Google, Facebook and Yahoo collect massive amounts of information about people-these companies, at heart, are all in the data collection business and they likely possess much information about you-that they sometimes sell to businesses, other individuals and even the government.

photograph; voice

Courts have spent a considerable time attempting to define what is or is not an illegal use of a name or likeness. In the 1970s and 1980s, most courts seemed to take a very expansive view of the concept of use. But beginning in the 1990s, some appellate courts began to narrow this definition. Stage names, pen names, pseudonyms and so forth count the same as real names in the eyes of the law. Only the names of people are protected under appropriation. The names of businesses, corporations, schools and other "things" are not protected under the law. However, the use of a trade name like Kodak or Crest can create other serious legal problems. What is a likeness? A ________________- of an individual is obviously a likeness. A New York court ruled it was up to a jury to decide if a photograph in a cosmetics advertisement of the back of a woman bathing in a stream could be identified as a likeness of the plaintiff, who had been secretly photographed. As the court noted (I think), there must be a "clear representation" of "identifying features" such that the individuals would be "recognizable from the advertisement itself." A likeness can also be a sketch or drawing. Protecting a ____________ might also be encompassed in a law protecting a name or likeness. Celebrities have argued-with some success-that the protection of their likeness extends to depictions of characters they played in movies or on television. Other celebrities have argued-again, sometimes successfully-that their right to publicity was violated when a business used someone who looked like or sounded like the celebrity in its advertisements. *The creative appropriation of celebrity images can be an important avenue of individual expression.* The importance of celebrities in society means that the right to publicity has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are "iconoclastic, irrelevant, or otherwise attempt to redefine the celebrity's image." There must be a test, then, that takes these values into account. The court focuses on what it called the transformative elements in the reproduction. If the reproduction is simply a literal translation of the celebrity's image, then the First Amendment concerns are surely minimal. But it is a different matter if the user has added other elements to the image, has significantly transformed the image into a parody, used the name in a song, lampooned the prominent person, or in some way used the celebrity's likeness as a vehicle for the expression of opinion or ideas. Then the rights of free expression take precedence over the right of the celebrity to protect his or her right to publicity. Similar issues of transformative use and parody arise in copyright cases.In fact, the transformative test fashioned in "Saderup" case is largely borrowed from fair use considerations in copyright law.

*right of publicity*; emotional damage; economic harm

The appropriation tort actually encompasses two slightly different legal causes of action. One is the right to privacy; the other is called the _________________. The differences between these two sound legalistic, but they are actually quite important. Traditionally, the right-to-privacy dimension of appropriation was designed to protect an individual from the ___________________ that can occur when a name or likeness is used for a commercial or trade purpose. The right to publicity, on the other hand, is an attempt to remunerate individuals for the ________________ suffered when their name or picture is used for advertising or trade purposes, and they are not compensated for it. The proposition is a simple one: An individual's name or likeness has economic value, and using it without permission is akin to theft. But the difference between emotional harm and economic harm is sometimes easier to state than to apply. The second distinction between the right of privacy and the right of publicity often helps resolve this question. Because the right of publicity protects a property right-the economic value in a name or likeness-normally only someone whose name or likeness has a commercial value can successfully allege a violation of his or her right of publicity. An average person, would likely be embarrassed to find her picture on a box of Wheaties. But it would be extremely difficult for an average person to argue in court that General Mills was actually promoting its cereal this way because kids all over America want to eat what this average person eats. But kids may want to eat the same cereal that basketball player LeBron James or swimmer Michael Phelps eat. The names and pictures of these professional athletes have commercial value and would enhance the value of the cereal (or the cereal box) in the eyes of consumers. Simply put, only well-known people have a legally recognized economic value their names or likenesses, and except in unusual cases, they are the only ones who can sue for damage to their right to publicity. The average person can only assert emotional damage in a right of privacy suit. Finally, something that has an economic value, like a house to a painting or a ring, can usually be passed on to an heir when the owner dies. Something of emotional value, like a reputation or mental health, is gone when its owner passes on. Consequently, it is possible in some states for a celebrity or sports star or some other well-known person who has died to pass on the property right in his or her name to his or her heirs. The heirs can sue fro violation of the deceased's right to publicity. Lawyers say that the right of publicity is descendible. For the rest of the people, their right to privacy dies when they do.