Chapter 8- Invasion of Privacy: Publication of Private Information and False Light

Newsworthiness is measured on a sliding scale of what competing interests?

An individual's right to keep private facts from the public vs. the public's right to know the facts

When can rape victims be legally identified in a publication?

If the victim's name is part of a public document proceeding, or if the press obtains it in another legal manner, (the material) can be published without incurring liability.

Public disclosure of private facts

Restatement (Second) of Torts defines this as: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a.) would be highly offensive to a reasonable person and (b.) is not of a legitimate concern to the public.

False-light suits typically involve what?

Simple editing or writing errors, or errors in judgment.

Private facts on the Internet

The disclosure of private facts on the Internet is treated by the courts in the same way as publication in a newspaper or other media outlets.

Concerning ethics and privacy, good editors agree that:

The feelings and sensibilities of the subject of the story should always be considered. But, at the same time, these feelings and sensibilities should never be used as a reason to deny the public of information of legit public concern.

The common argument made by litigant's who were at one time in the public spotlight, concerning a suit on his or her privacy

They often argue that the passing of time has dimmed their public spotlight, and because of this they should regain at least some protection of their private lives after an intermediate period of time.

Highly Offensive Material

To determine if the false light is "highly offensive" a court will consider the facts from the perspective of a reasonable person.

Verdict of Time Inc. v. Hill

-The Hill family won damages in the NY state courts. -However, the state's verdict was overturned by the Supreme Crt. because "The Desperate Hours" did not include the family's name or likeness for trade purposes, and because newspapers are designed with an informative purpose and not for commercial gain. -The same First Amend. standards that were applied to New York Times v. Sullivan were also applied to the decision of Time Inc. v. Hill in 1967.

Time Inc. v. Hill

-The first case in which fault requirement was applied to invasion of privacy, and the first mass media invasion-of-privacy suit ever heard by the U.S. Supreme Court. -In the early 50s, 3 escaped convicts held the James Hill family hostage for 24 hours, and were caught by police shortly after leaving the home, and the story became widely publicized. -Author Joseph Hayes wrote a fictional novel, "The Desperate Hours", of a Hilliard family held hostage by 3 escaped convicts, which was turned into a movie and Broadway play. -Life magazine published a feature story, stating that "The Desperate Hours" was a reenactment of the James Hill family ordeal. -James Hill sued Time Inc., claiming that Life had used his family's name for trade purposes, that the story put them in false-light, and because Life did not say that the story was a fictionalized account of what happened to his family.

Two questions to be asked when naming a rape victim in a publication

1. Can the name or identity of the victim be legally published? 2. Should the name or identity of the victim be published?

The 3 elements proving false-light

1. Publication of material must put an individual in false light. 2. The false light would be highly offensive to a reasonable person. 3. The publisher of the material was at fault.

Facts of legitimate public concern

If it is determined that publicized private facts are of a legitimate public concern, then there can be no invasion-of-privacy suit made.

Do most newspapers and broadcasting outlets identify rape victims?

No, most of them have policies restricting the identification of rape victims.

What must the plaintiff prove in order to have an invasion-of-privacy suit?

The plaintiff must prove that the publicized material was indeed a private fact.

Material not considered private facts

-Any activity that happens in public. -Information that is already widely known by a segment of the public. -Info contained in documents or files that are considered to be public records.

The difference between "publication" and "publicity"

-In libel law "publication" is the communication of material to a single third party. -In privacy law "publicity" is the communication of material to the public at large or to a great number of people, making it certain that the information will soon become public knowledge.

Other Falsehoods

-Most false light cases result form the publication of false info about a person in a news or feature story. -These falsehoods are mostly products of simple editing and writing errors and/or misuse of photos and videos.

Fictionalization

-The purposeful distortion of the truth, usually for dramatic purposes. -Often referred to as "docudramas". -Some of the first false-light cases came from fictionalizations. -To avoid an invasion-of-privacy suit through fictionalization, it's best to buy the rights to the real life story from the real people being portrayed and have them sign contracts forfeiting their right to sue.

Difference between false-light and defamation-falsity

-With false-light, the words do not have to damage the plaintiff's reputation. -The plaintiff does not have to prove that their reputation was damaged, but instead just have to prove that something false was published about them, causing them embarrassment or humiliation.

2 types of cases that Recounting the Past occurs

1. A news story, book or TV documentary that simply recounts the past; in other words, history. Lawsuits brought against publications of this type are never successful. 2. "Where are they now" stories. These often recount history and provide the current status of the individual in which the story is about. These become problematic when the story is designed to embarrass or humiliate the subject.

It is illegal to publicize material that places an individual in a false light if:

1. The false light in which the individual was placed would be highly offensive to a reasonable person. 2. The publisher of the material was at fault when the publication was made.

The 3 factors courts take into consideration in determining if the private facts in question are of legitimate public concern

1. The social value of the private facts that were published. 2. How deeply the disclosed private facts cut into ostensibly private affairs. 3. The extent to which the plaintiff voluntarily rose to a position of public notoriety.

The 3 arguments against the publicized identity of rape victims

1. The victim is victimized 3 times: 1.) from the rape, 2.) from the interrogation of of unsympathetic police, prosecutors and defense lawyers during investigation and trial, and 3.) when their identity is displayed to the public. 2. Society often stigmatizes the victims and judges them unfairly, as being just as guilty as the rapist. 3. Victims, with knowledge that publication of their identity will likely result in the first 2 elements, will often fail to report the crime, which leaves the rapist unpunished.

If it is determined that private facts have been publicized, the court must ask what 2 questions?

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?