Comm. Law Chapter 5: Invasion of Privacy
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.
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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Commercial Use on the Internet
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Companion Torts to Privacy Torts
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Consent: Model Releases
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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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DQ #1: Should wrongful intent or news-gathering methods by defendants have any bearing on the outcome of privacy lawsuits? For example, suppose a trespassing news reporter slipped unnoticed into a physician's office, stole an individual's medical file, and then published information from the file - including the fact that the individual was infected with HIV. If the medical information was legitimately newsworthy, would the reporter's wrongful methods be the slightest bit relevant in a lawsuit brought by the individual subject of the story? Has the Supreme Court answered this question, or has it left the door open to such a lawsuit?
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DQ#2: For purposes of the appropriation tort, the trick sometimes is determining whether the individual's name or likeness was used for a commercial purpose. How would you categorize the following unauthorized uses: (a) Putting an employee's picture on the front of the company's monthly employee newsletter? (b) Using a business customer's picture on the cover of the company's shareholder magazine? (c) Using a campaign contributor's name in a political ad urging support for a senatorial candidate? (d) Using an individual doctor's picture on a flyer for a cancer society fundraising event? (e) Using a college professor's picture in a calendar being sold on campus to raise funds for a fraternity?
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DQ#3: It has been rare for plaintiffs actually to win lawsuits against mass communicators for invasion of privacy or infliction of emotional distress. Yet it appears these kinds of lawsuits are being filed with increasing frequency. How would you explain this? Have these lawsuits become more frequent because of changing tactics by the media? A changing mood among media consumers? An increasingly litigious society?
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Disclosure of Private Facts
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Disclosure of Private Facts Defenses
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Disclosure of Private Facts, Newsworthiness: Legitimate Public Interest
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Disclosure of Private Facts: Newsworthiness Defense
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Disclosure of Private Facts: Not Newsworthy
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Disclosure of Private Facts: The Supreme Court and the Lawfully Obtained News
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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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Ethical Concerns about Disclosure of Private Facts
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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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Factors Weighed in Disclosure of Private Facts Newsworthiness Defense
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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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First Amendment Clash with Consent
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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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Highly Offensive Disclosure
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Important things to remember about Consent:
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Incidental Uses
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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 Disclosure of Private Facts?
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Is it False Light?
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Is it Intrusion?
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Is it appropriation?
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Knowing Consent
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Model Releases/ Photo Consent Forms
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Name or Likeness
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Newsworthiness Special Problem: Lapse of Time
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Newsworthiness: Humiliation for Its Own Sake
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Paparazzi
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Photo Stalking
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Privacy in Cyberspace
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Privacy in a Name?
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Private Facts
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Private Life
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Private Life: Public Records
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Private Life: Public Settings
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Psychic Marketing Group v. ABC (1999)
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Public Record Privilege
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Recording and Intercepting Calls
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Special Problem in Commercial Use: News Promos
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Special Problem in Consent: Deceased Celebrities
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Summary Chapter 5
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The Borat Cases
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Trespass
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Working With Models
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Appropriations Defenses
1) NEWSWORTHINESS 2) NONTRANSFORMATIVE 3) CONSENT
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.
*** DIETEMANN V. TIME, INC. (1971)
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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
*** 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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***COX BROADCASTING CO. V. COHN (1975)
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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"