The Right of Privacy CHAPTER 5

1. Communications Law. COMM 407, CSU Fullerton The Right of PrivacyCHAPTER 5

2. Penumbra

3. Is there a right to privacy?Griswold v. Connecticut (1965) • Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. • Various guarantees create zones of privacy. • The right of association contained in the penumbra of the First Amendment is one. • The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy.

4. Is there a right to privacy?Griswold v. Connecticut (1965) • The Fourth Amendmentaffirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." • The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender. • The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

5. The Right of Privacy • Birth Control (Griswold case 1965) • Abortion (Roe v. Wade, 1973) • Sodomy laws (Lawrence v. Texas, 2003) • Same-sex marriage

6. Four Torts (Civil Wrongs): • Intrusion upon physical seclusion • Public disclosure of embarrassing private facts • Placing an individual in a false light • Commercial appropriation of name or likeness

7. Intrusion upon physical seclusion • Four Torts (Civil Wrongs): • Intrusion upon physical seclusion • Public disclosure of embarrassing private facts • Placing an individual in a false light • Commercial appropriation of name or likeness

8. Intrusion • It is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual in a manner that would be offensive • Purpose of the information gathering • Means of information gathering: cameras, hidden recording devices, false pretenses

9. Protection from unwanted observation • The main issue here is not the publication, but the process of gathering information

10. Intrusion and Expectation of Privacy • A reasonable expectation of privacy exists in a private residence, hospital, hotel room, private office etc. • No Expectation of Privacy in Public or in full view (sidewalks, parks, beaches, stores, restaurants, etc.) • An intrusion suit cannot be based on the recording of activities that took place in public

11. Dietemann v Time 1971 (U.S. Court of Appeals) • Life Magazine reporters entered Dietemann’s house under false pretenses of being in need of medical help. Their true intention was to investigate Dietemann who was a quack (minerals, herbs, etc.). • They published an article titled: “Crackdown on Quackery.” • Dietemann sued for invasion of privacy. • Dietemann won mostly because of expectation of privacy in his own home. Especially because the reporters used eavesdropping devices in his private den.

12. Miller v NBC 1986 (California Court of Appeals). • Paramedic arrived at Mr. Miller’s home. Camera crew followed all the way to the bedroom filming the resuscitation without obtaining consent from Miller’s wife or anyone else. Later that night NBC aired the film. • Mrs. Miller sued for Invasion of Privacy and infliction of Emotional Distress • She lost in the trial court • The Court of Appeals REVERSED • CONSIDERED INTRUSION / Invasion of Privacy

13. Miller v NBC 1986 • “One seeking emergency medical attention does not thereby “open the door” for persons without any clearly identifiable and justifiable official reason who may wish to enter the premises where the medical aid is being administered…the clear line of demarcation between the public interest served by public officials and that served by private business must not be obscured.”

14. Florida Publishing Co. v Fletcher 1976 (Florida Supreme Court) • A photographer entered a private home which was the scene of a fire. • He received a consent / invitation from the Fire Department • The Court ruled that this is permissible as long as public officials (police etc) have a temporary custody of the property • However… search warrants are not enough →

15. Wilson v. Layne 1999 (U.S. Supreme Court) • The court held that while a search warrant gives officers the right to enter a private home, • this right does not extend to journalists

16. Shulman v. Group W Productions 1998. • In a case settled before it could reach the Supreme Court, the California Supreme Court determined in Shulman v. Group W Productions that a car-accident victim had a reasonable expectation of privacy once she was inside a medical helicopter. • CONSIDERED INTRUSION

17. Mark v King Broadcasting 1980. • A television station followed a story about criminal charges against a local pharmacist and filmed him through the window during the usual business hours. • NO INTRUSION. The person could have been seen by any passerby.

18. Hidden cameras and secret taping

19. Food Lion Inc v. ABC (1997) • ABC employees trespassed at Food Lion stores to obtain hidden-camera footage aired later on “Primetime Live” alleging food mishandling • The business was hurt by the report • Sued ABC for trespass and fraud • Initially the Food Lion stores were awarded $5.5 by a jury, reduced to $315,000 by the judge, and eventually awarded only a nominal damage $2 for trespass by the U.S. Court of Appeals

20. Desnick v. ABC (1995) • Two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. They used hidden cameras and recorded the eye examinations which were subsequently used for a news story about Desnick's eye clinics. • Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.

21. Intrusion and the Internet • There is no expectation of privacy when information is voluntarily made accessible to another person or placed in the flow of commerce

22. Public disclosure of embarrassing private facts • Four Torts (Civil Wrongs): • Intrusion upon physical seclusion • Public disclosure of embarrassing private facts • Placing an individual in a false light • Commercial appropriation of name or likeness

23. Public disclosure of embarrassing private facts • The interest protected is that of reputation. It is in reality an extension of defamation ... with the elimination of the defense of truth

24. Public disclosure of embarrassing private facts • First, the disclosure of the private facts must be a public disclosure, not a private one. • Second, the facts disclosed to the public must be private facts, not public. • Third, the matter made public must be one that would be offensive and objectionable to a reasonable man of ordinary sensibilities. • and… the facts are not considered newsworthy

25. Disclosure of private facts • Disclosure of private facts (true information) that are embarrassing and not newsworthy.(Defamation laws do not apply because the facts are true) • Public: • Public view is usually a fair game • Public records and proceedings

26. Expectation of Privacy • A reasonable expectation of privacy exists in a private residence, hospital, hotel room, private office etc. • No Expectation of Privacy in Public or in full view (sidewalks, parks, beaches, stores, restaurants, etc.) • An intrusion suit cannot be based on the recording of activities that took place in public

27. Disclosure of private facts • Private: • The Highly Offensive Disclosure Standard • The Newsworthiness Standard • Legitimate Public Interest • Humiliation for Its Own Sake • Facts from the Past

28. Highly Offensive • Physical disorder • Unusual sexual practices • Bizarre personal habits

29. Free speech and the right to privacy • Nicole "Nikki" Catsouras

30. The accident and the photos • Nikki Catsouras was traveling her father’s Porsche 100 mph onear Lake Forest, Calif., when she clipped another car and lost control, slamming into a concrete tollbooth, killing her instantly. • The pictures, taken by California Highway Patrol officers and e-mailed outside the department, spread around the Internet, making their way to about 1,600 Web sites, according to an investigator hired by family. • See a report on ABC 20/20 at: • http://abcnews.go.com/Video/playerIndex?id=3979266

31. The case: The Superior Court (County of Orange, CA) • Catsouras family sued the California Highway Patrol for invasion of privacy. • In 2008, Judge Steven L. Perk dismissed the case. He stated that the CHP officers were not under any responsibility for protecting the privacy of the Catsouras family.

32. The appeal • On February 1, 2010, the California Court of Appeal for the Fourth District had reversed Judge Perk's grant of summary judgment, and instead ruled that the Catsouras family did have the right to sue the defendants for negligence and intentional infliction of emotional distress.

33. The appeal and settlement • On May 25, 2011, the California Court of Appeal for the Fourth District ruled that the CHP failed to prove that e-mailing the photographs is covered by the First Amendment. • On January 30, 2012, the CHP reached a settlement with the Catsouras family, under which the family received around $2.37 million in damages.

34. Facts from the Past: The "Red Kimona" case (Melvin v Reid 1931) • Red Kimona film (1925) was written and produced by Dorothy Davenport Reid, a feminist filmmaker during the silent movie period. It presented the true story of a former prostitute Gabrielle Darley who was charged with murder and found innocent. • .

35. The "Red Kimona" case • In 1918, Darley married a high society figure Bernard Melvin and she abandoned her old life. • When the movie came out in 1925, Mrs. Melvin (Darley) sued for $50,000 and won in California court. • The movie producers argued that all the facts of the case were true and open in court records. • The court said: "Any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing, or reputation."

36. The "Red Kimona" case • Important: the case shows earlier approaches of the court. Today the plaintiff would not prevail. • 1. Information for the movie taken from public records • 2. There was other material widely available • 3. The Darley case would be considered newsworthy

37. Information obtained from public record • Gates v Discovery Communications 2004 (California Supreme Court) • Cox Broadcasting v Cohn 1975 (U.S. Supreme Court): • The States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection." • Since Cox, through its reporter, had legitimately obtained the name in open court, the later publication of the name was held to be an activity protected by the 1st Amendment.

38. Placing an individual in a false light • Four Torts (Civil Wrongs): • Intrusion upon physical seclusion • Public disclosure of embarrassing private facts • Placing an individual in a false light • Commercial appropriation of name or likeness

39. Placing an individual in a false light • Distortion (out of context) • Embellishment (changing the context) • Fictionalization • Distinguished from defamation by the “damages:” • False Light damages are not to reputation, but personal embarrassment and anguish

40. Distortion (out of context)Leverton v. Curtis Publishing Co., 1951, • The plaintiff in 1947, when she was a child of ten, was involved in a street accident in the city of Birmingham, Alabama. A motor car nearly ran over her. • The photograph of the child being lifted to her feet by a woman bystander appeared in a newspaper the day following. • Twenty months later it was used by the Curtis Publishing Co. as an illustration for an article on traffic accidents, with emphasis on pedestrian carelessness, under the title, "They Ask To Be Killed"

41. Embellishment (changing the context)Cantrell v. Forest City Publishing Co 1974 • When a reporter pretended to have interviewed widow of man killed in bridge collapse, describing her face and talking about her courage in refusing charity, and yet had never bothered to interview her, the court said he had acted with malice, that is, knowingly publishing something false.

42. Misappropriation • Four Torts (Civil Wrongs): • Intrusion upon physical seclusion • Public disclosure of embarrassing private facts • Placing an individual in a false light • Commercial appropriation of name or likeness

43. Appropriation • It is illegal to appropriate an individual’s name or likeness for commercial or trade purposes without consent. • It is a property right – protects the economic value of the name or likeness • It is a personal right—protects an individual from the embarrassment and humiliation that can occur when a name or picture is used

44. Commercial use • What are advertising and trade purposes? • For profit or other interest • Use of someone’s name or likeness in an advertisement in any media outlet including websites (includes manuals, recruiting material, etc.) • Use of someone’s name or likeness in a media product (television show, movie)

45. Celebrities and advertising • Carson v Here’s Johnny Portable Toilets (1983) • Midler v Ford Motor Company (1988)

46. News Exception Individuals cannot sue for appropriation in a news story. “News” has been widely interpreted by the courts to include anything that is not an explicit advertisement. However: • the Zacchini case (fair use) • Muhammad Ali case (relevance) • Playgirl case (false depiction)

47. Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978)

48. Ali v. Playgirl, Inc.,447 F. Supp. 723 (S.D.N.Y. 1978) • Appropriation: The man clearly resembled former heavyweight champion Muhammad Ali. • Playgirl was found liable for appropriating Ali's likeness without his consent. • The court held: "Ali has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the name of successful business entity.“

49. Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978) • Would the case be the same if the magazine had shown Ali wearing boxing trunks? • As a public figure, his likeness and name obviously could be used with legitimate news and feature articles. • However, there was no legitimate news value to a depiction of Ali's nudity

50. News v. commercial use controversies • Incidental use • News Promos • The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content