CDAE 129 Exam 2

Publication of private facts cases are the easiest type of privacy case for a plaintiff to win

False

An employee who uses a company computer has a reasonable expectation of privacy with regard to the e-mails he or she sent or received.

False

A difference between absolute and qualified privilege is all of these answers are correct.

(qualified privilege only applies if the report is a fair and accurate report; accuracy and fairness do not apply to absolute privilege. absolute privilege has roots in the Constitution, qualified privilege developed through the common law and state statutes. absolute privilege protects the speaker; qualified privilege protects reports about what the speaker said.)

Cohen v Cowles Media Co. (1991)

- In 1982, Dan Cohen (Plaintiff) for an ad agency hired by the Republican party campaign during the race for Governor in Minnesota. Cohen sold information to two newspapers that were both owned by Cowles Media Company (Defendant). The information was court documents that revealed the criminal record of a Democratic candidate for governor. Although Cohen received a verbal promise that his name would not appear in the article, Cowles Media did not uphold this promise. They published the information Cohen provided, along with his name listed as the source. After Cohen's name was revealed he was forced to resign from his position at his ad agency - No. According to Westlaw, the US Supreme Court overturned the Minnesota Supreme Court's decision in a 5-4 ruling for Cohen. The US Supreme Court found that the First Amendment does not shield the press from liability in a promissory estoppel case. However, the US Supreme Court refused to award damages, so the case was sent back to the Minnesota Supreme Court where the some damages were then awarded to Cohen. The First Amendment does not shield journalists from lawsuits or civil liability when they breach promises of confidentiality to their sources

Newsworthiness and legitimate public concern

- Public interest triumphs offensiveness - If the information is something the public wants to know, it's newsworthy

Comments made during a civil court proceeding are not protected by the defense of qualified privilege.

False

FOIA Exemptions

1. National security matters 2. House Keeping Materials 3. Materials exempted from law 4.Trade Secrets 5. Privilege materials 6. Personal Privacy files 7.Law enforcement records 8. Financial institution records 9. Geological Data

promises of confidentiality

1. Some sources won't talk unless you promise them confidentiality 2. To go back on a promise is to risk a lawsuit filed by the source

constitutional protection of news gathering

3 places journalists look to find a legal right of access to info: common law, constitutional law, and statutory law - journalists have no constitutional right of access to prisons or their inmates beyond that afforded by general public - reporters don't have the right to access government information or sources of information within the governments control - press doesn't have the right to videotape, photograph, or record govt proceedings that are by law open to the public - reporters may face both civil liability and criminal prosecution when they trespass

Consent (related to libel)

A defense in both libel and invasion of privacy cases that provides that individuals who agree to the publication of a libelous story or the appropriation of their name cannot then maintain a lawsuit based on libel or the appropriation. Often times commenting can count as consent.

Freedom of Information Act

A federal law that mandates that all the records created and kept by federal agencies in the executive branch of government must be open for public inspection and copying, except those records that fall into one of nine exempted categories listed in the statue.

Open meeting laws

A federal law that requires approximately 50 federal agencies and bureaus to hold all their meetings in public, unless a subject under discussion is included within one of the 10 exemptions in the statue.

Statute of Limitations

A law that requires that a legal action must begin within a specified period of time (usually one to three years for a civil case) after the legal wrong was committed.

Right of reply

A little used libel defense that declares as immune from a lawsuit a libelous remark made against an individual in reply to a previously published libelous remark made by that individual.

Record agency

A record produced and controlled by an agency. Is also "Can" be an agency record if agency controls but did not create. Is not an agency record if agency creates but does not control.

Courts are in agreement that a person using wi-fi to send or receive material via the Internet enjoys a reasonable expectation of privacy.

False

Special damage

Actual amount lost, and wants it returned.

If your photo is taken without your permission while you're sitting in a public park, you could successfully sue for public disclosure of private facts.

False

In defending a lawsuit based on statements of opinion, a defendant may win the case

All of the these answers are correct. (by arguing that the statements are fair comment and criticism. by arguing that the statements are rhetorical hyperbole. by arguing that the statements are protected by the First Amendment.)

shield laws

Allows journalists to get information from confidential sources who might not be comfortable talking if they knew their names would be made public, and to protect journalists against being harassed by government officials who dont like what they are reporting. Different in every state. All reporter shield laws allow journalists to refuse to reveal confidential sources. Some of them allow journalist to refuse to give any unpublished materials they've collected.

Absolute Privilege

An immunity from libel suits granted to government officials and others based on remarks uttered or written as part of their official duties.

Intrusion

An invasion of privacy committed when one individual intrudes upon or invades the solitude of another.

Right of publicity

An offshoot of privacy law that protects the right of persons to capitalize on their fame or notoriety for commercial or advertising purposes Only relevant for special people.

Most courts have ruled that the typical reader or listener or viewer can't distinguish between factual assertions and opinion statements.

False

Which of the following would not be covered by the defense of qualified privilege?

Comments made by a protester on the steps of a police station. (public place?)

A corporation enjoys the same personal right of privacy as a living person.

False

Special damages are no longer allowed because of First Amendment concerns.

False

The First Amendment defense of opinion also protects false statements of fact contained in an article that is mostly opinion.

False

The Supreme Court has barred the award of punitive damages in libel suits

False

The defense of newsworthiness in a privacy lawsuit extends to stories about important governmental, economic, foreign policy or political issues, but it does not extend to stories about social or cultural issues.

False

The statute of limitations for libelous matter on the Internet begins the day the matter is first accessed by a user.

False

The statute of limitations in most states is three years.

False

The two areas of the law of privacy that currently seem most affected by the Internet are appropriation and intrusion.

False

The use of a name or likeness in any publication sold to a reader for a profit is considered an appropriation.

False

The use of the likeness of a celebrity on a shirt, trading cards or other such items is always regarded as an appropriation.

False

While celebrities can stop the use of their names or likenesses in commercial vehicles like ads or films, they can't protect the use of their voice in such vehicles.

False

FERPA

Family Education Rights Privacy Act- protects education records

Gertz v Robert Welch, Inc (1991)

Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz won a jury verdict and an award of $50,000 but lost his libel suit because the trial judge found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964). The Court of Appeals for the Seventh Circuit affirmed the trial judge's ruling. The Court reversed the lower court decision 5-4, holding that Gertz's rights had been violated and ordering a new trial. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. First, the recklessness standard applies only to defamation of public figures or public officials. Second, even for private individuals, states may not impose strict liability on news media. And third, any standard of fault less then recklessness limits private persons to actual injury. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.

Elements of FOIA requests

Government departments must acknowledge a request within 20 days

Actual damage

Harm, money, mental stress, humiliation, if you have to go to therapy bc of something. assigning value to emotion stuff.

In 2013, which one of the following states attempted to adopt an anti-paparazzi statute known as the "Steven Tyler Act"?

Hawaii

Sources of privacy rights in the United States today include:

The U.S. Constitution Statutory law

HIPAA

Health Insurance Portability and Accountability- protects medical records. Journalists can obtain information about crime victims from law enforcement sources without violating this law; HIPPA applies only to healthcare and health insurance providers.

recounting the past

If an individual is in the public eye, revelations about his or her private life are normally fair game for the press. Courts have erected an almost impenetrable defense that blocks such lawsuits. These litigants usually argue that the passing of time dims the public spotlight and that a person stripped of a right to privacy because of his or her notoriety regains at least some of that protection after an intermediate period of time.

Highly offensive publicity

In determining if the material is offensive: 1) would a reasonable person find the publicity given to the fact highly offensive? 2) was the private fact that was disclosed of legitimate public concern? In other words, was the disclosed fact newsworthy?

highly offensive material

In determining if the material is offensive: 1) would a reasonable person find the publicity given to the fact highly offensive? 2) was the private fact that was disclosed of legitimate public concern? In other words, was the disclosed fact newsworthy?

Qualified Privilege

In libel law, the privilege of the reporter or other person, to publish a fair and accurate report of the proceedings of a public meeting or public document and to be immune from lawsuit for the publication of libel uttered at the meeting or contained in the document.

Appropriation

In the law of privacy, use of a persons name or likeness without consent for advertising or trade purposes.

Fair comment and criticism

Is it an opinion? Is it subject of a legitimate public concern? Is it a factual basis of the comment? Opinion V. Fact A libel defense that protects the publication of libelous opinion that focuses on the public activities of a person acting in a public sphere.

Rhetorical Hyperbole

Language so expansive that the reader or listener knows its only an opinion not assertion of fact

Cox Broadcasting v Cohn (1975)

Martin Cohn was the father of a seventeen-year old girl who was raped and killed in Georgia. After obtaining information from the public record, a television station broadcast the name of Cohn's daughter in connection with the incident. This violated a Georgia privacy statute which prevented members of the media from publicizing the names or identities of rape victims. Cohn claimed the publication violated both Georgia's shield law and his common-law right to privacy. The court implied that the news should not be censored, regardless of the cruel nature of the topic. ● The 1st and 14th amendments command nothing less than the states may not impose sanctions on the publications of truthful information, open to public inspection. Decided on March 3, 1975 ● Supreme Court ruled in favor of Cox Broadcasting ○ Held that the Georgia Statute and its common-law counterpart violated the 1st and 14th Amendments ○ Since the documents were obtained legally, the publication of Cohn's daughter's name was protected by the 1st Amendment ● It is the media's job to report of the activities of the government, which includes court cases

The libel defense of neutral reportage

None of these answers is correct. (emerged in England in the 1800s. protects exaggerated opinion statements. has been accepted by most state courts.)

the fault requirement

Since 1967, plaintiffs in false-light suits have been required to carry a fault requirement much like the one applied in libel cases. The case in which this fault requirement was applied to invasion of privacy was the first mass media invasion-of-privacy suit ever heard by the U.S. Supreme Court Ex: Time, Inc. v. Hill James Hill sued for invasion of privacy. He complained that the magazine had used his family's name for trade purposes and that the story put the family in a false light.

Criminal Libel

Some times its okay for state to bring a criminal charge against someone. For example, breech or peace, issue of national security or state. State v citizen

One Party consent - prevalence?

The Statutory definition of eavesdropping excludes the recording of a conversation with the consent of one party. Thus, the citizen has a right to record his own conversations.

Time, Inc. v Hill (1967)

TIME, INC. (Appellant) and James J. Hill, Plaintiff In 1952, three escaped convicts took James Hill, his wife, and their five children hostage in their Whitemarsh, Pennsylvania, home. After nineteen hours, the family was released unharmed. The convicts were later apprehended in a violent clash with police during which two of them were killed. In 1953, Joseph Hays' published a novel based on the Hill family's ordeal. When the novel was subsequently made into a play, Life Magazine ("Life") printed an article about the play that mirrored many of its inaccuracies concerning the Hill family's experience. Alleging that it deliberately misrepresented his story, Hill sought damages against Life. On appeal from an adverse ruling, the Appellate Division of the New York Supreme Court remanded for a new trial where a reduced adverse ruling was imposed on Life. Following an unsuccessful appeal in the New York Court of Appeals, the Supreme Court granted Life's owner, Time Inc. ("Time") certiorari. In a 6-to-3 opinion, the Court set aside the Appellate ruling against Time because the lower court failed to instruct the jury that Time's liability was contingent upon a showing that it knowingly and recklessly published false statements about the Hill family. The Court explained that absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate. The Court remanded for retrial under the new jury instruction. What is the big-picture issue that makes this a landmark case? The case drew a legal line between the right to privacy and freedom of the press in order to preserve the first amendment. This would become the precedent for cases that followed.

News and information exception

The controversy over whether an image is used to advertise a news source or if it's just news. ie: image of high speed chaser on front of newspaper attracted readers to the paper and brought money to paper. Is this an ad for the paper or news? many judges have different answers.

Protection of Opinion

The law has traditionally shielded statements of opinion from suits for defamation. Opinion is a basic part of mass media and political and social discourse. Common law defense calls for fair comment and criticism. 3 defenses (idk what they are) - immune to successful libel action - Opinion is protected by the common-law defense of fair comment. A plaintiff cannot recover damages for an opinion statement about a subject of legitimate public interest that is based on true facts that are clearly stated or well known.

Consent as a defense

The law prohibits only the unauthorized use of a name or likeness for commercial or trade purposes. Consent does not always need to be in writing to be effective. In any legal action, the defendant is going to have to prove that he or she had consent to use the name or photograph.

The publication of information that has been obtained through an illegal intrusion is not considered an invasion of privacy if the reporter or editor had nothing to do with the intrusion.

True

False light

The portion of privacy law that prohibits all publications or broadcasts that falsely portray an individual in an offensive manner.

Publication of illegally obtained information

The press may freely publish 1) truthful material, 2) about matters of public significance 3) that has lawfully been obtained, even if from a source who obtained it unlawfully 4) unless the gov't can demonstrate an interest of the highest order

fictionalization

The purposeful distortion of the truth, usually for dramatic purposes. Some of the earliest false-light cases involved radio and TV dramatizations of actual news events. Because they did not know exactly what happened, and because real life is generally boring, script writers often changed these events to increase the drama.

If a plaintiff has consented to the publication of a defamatory statement, he or she cannot later sue for damages because of that publication.

True

Courts have generally agreed that the publisher of a libel on the Internet

There is no real consensus yet on answering the jurisdictional questions involving libel on the Internet.

Use of name or likeness

This can be a name, picture, sketch, voice, sometimes even a depiction of characters Individuals must be readily identifiable- a P's name/photo appears in a msg. --also: nickname, voice or any other mark of personal I.D.

News stories based on inaccurate government reports will normally be protected by the defense of qualified privilege.

True

Persons who send e-mail messages and participate in chat rooms on the Internet do not have a reasonable expectation of privacy under the law.

True

A libelous comment may be answered with a libelous comment under the defense of right of reply

True

The Booth Rule

Use of person's name or likeness in an advertisement for a media product is usually not regarded as appropriation if name/likeness has been or will be part of the content

Branzburg v Hayes

WHO: Paul Branzberg, a Louisville reporter v. John P. Hayes of the US Supreme Court WHEN: February 23rd- June 29th 1972. WHERE: Kentucky WHY: First Amendment, Privacy Rights, Refusal to testify After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. The supreme court ruled 5-4 that reporters were not protected under the first amendment when asked to testify and reveal a sources to a grand jury. ● Asserted a level of authority for law enforcement over reporters ● Justice Lewis and Stewart- Reporter's Privilege ● 18 reporters arrested since 1984- Judith Miller

One of the most important scholarly articles contributing to the legal recognition of a right to privacy in the United States was published in 1890 in the Harvard Law Review and was co-authored by

Warren and Brandeis

Privacy in public

What occurs in public is generally not regarded as being private. Ex: Homecoming queen picking her nose story. She can't sue because it was in public, not a private setting therefore not an invasion of privacy. Privacy depends on the exact nature of the conduct and all the surrounding circumstances.

Neutral reportage

When the media reports newsworthy but defamatory allegations made by a responsible and prominent source, these reports may be privileged; the charges must be reported accurately and neutrally, and must be about a public official or public figure Courts in various jurisdictions have disagreed about whether this is a viable defense

Jurisdiction

Wherever the publication is circulated, if a women from Florida wanted to sue but the time period of Florida's statue of limitations was up, she could sue in a state where the publication was circulated such as California because their statue of limitations might be a longer period of time.

NY Times v Sullivan (1964)

Who: Petitioner: L.B. Sullivan, Police Commissioner of Public Affairs Defendant: The New York Times When: Began January 6, 1964. Decided March 9, 1964 Where: Montgomery, Alabama What: ● Black college students protested with a boycott of classes for the day because one of their fellow students was arrested for singing the National Anthem on State Court steps. ● Police were summoned in order to break up the protest and Sullivan was in charge. ● Next day, NY Times published the article that included what Sullivan claimed said was "slander and false facts". Why: ● Sullivan argued that is was wrong for the Times to publish the article because it negatively impacted his reputation. ● NY Times claimed that they did not mean to jeopardize his reputation and that the article was protected under the First Amendment. Court Proceedings ● Alabama State court's Jury found the ad libelous without proving actual malice ● Plaintiff awarded $500,000 in damages ● Defendant appealed Decision Reversed and Remanded ● Supreme court held that it is unconstitutional to award damages for libel in actions brought against a public official without proof of actual malice. Actual malice: knowledge of falsity and or reckless disregard for the truth. ● NY Times initially claimed they published article because they had no reason to believe it contained false information.

Right to enter private property

You do not have the right to enter anyone's private property without their consent. It's one thing if you jump a neighbor's fence to get a ball, but you can't go snooping around someone's private property looking for evidence or information.

Hidden recording devices

depends on the situation, but in most cases if the recording is done in a private space, mostly a person's private home, it isn't okay. If it's done in public it is okay.

Courts can usually assess four kinds of damages in a libel suit. These include

punitive and actual damages.

In privacy law, the doctrine of incidental use means

a brief or fleeting use of a person's name or likeness in a commercial vehicle is permitted.

The Ollman Test

a four part test to determine whether a statement should be regarded as the assertion of a fact or as simply the speaker's or writer's opinion. Emerged from the case of Ollman v. Evans. The four parts: 1) Can the statement be proved true or false? 2) What is the common or ordinary meaning of the words? 3) What is the journalistic context of the remark? 4) What is the social context of the remark?

Transformative use in a right of publicity case refers to

a use that is not a literal depiction of the plaintiff's likeness but that adds creative elements.

All Party consent

all parties consent .

The criteria in the Ollman test for libelous opinion includes the provability of the statement, the context of the remarks,

and the ordinary meaning of the words.

The Booth rule is applicable in which of the four varieties of invasion of privacy?

appropriation

Most criminal libel prosecutions

are brought for political reasons by police officers and public officials.

Advertising and trade purposes

commercial uses; that is, someone makes money from the use. Example: 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

Defenses against libel actions, in addition to qualified privilege and the opinion defenses, include

consent and right of reply.

Summary Judgment

granted to a party in a lawsuit when the pleading and other materials in the case disclose no material issue of fact between the parties, making it possible for the case to be decided on the basis of the law by the court. Avoids a costly jury trial. Granted to a party in a lawsuit when the pleadings and other materials in the case disclose no material issue of fact between the parties. All facts of the case must be agreed upon for this ruling to be made

Naming rape victims

if the victims name is part of a public document proceeding, or if the press obtains it in another legal manner, it can be published without incurring liability. However, ethically most publications and states won't do this

promissory estoppel

if you breach promise of confidentiality given to a source by revealing and disclosing that source's name in court, to a grand jury or simply by publishing it in the pages of your newspaper or a on its Web site, then you can be sued by that source in a civil law proceeding for monetary damages on a theory

Punitive damage

money compensation, usually extra damages designed to punish dependent.

Vanna White brought a successful right of publicity case based upon the unauthorized use of

neither her photograph nor her name. (robot that appeared to look like her and had her voice?)

A person's whose photo is taken without her permission while she is walking down a public street sidewalk cannot successfully sue for public disclosure of private facts but could successfully sue for

none of these choices is correct. (trespass. the right to be forgotten. intrusion.)

Legislation adopted by states and the federal government since the terrorist attacks of 9/11 has

placed national security interests above the right to privacy.

Retraction

public apology

The intrusion tort differs from other right to privacy torts (appropriation, public disclosure of private facts and false light) because

publication is not required to establish a legitimate cause of action for intrusion.

Presumed damage

showing of actual malice, knowledge or falsity, or reckless disregard for the truth. Can prove without proving harm.

Under the statute of limitation libel rules, the date of publication (when the time limit begins) for a newspaper is

the date of publication that appears on the newspaper.

Two Party consent

two parties involved consent. Like an interview.