Invasion of Privacy

Invasion ofPrivacy • The right to be left alone

FTC v. American Tobacco Co.1923 • The legal right of privacy has been defined as the right to be let alone, the right of a person "to withhold himself and his property from public scrutiny if he so chooses." • (FTC = Federal Trade Commission)

Invasion of Privacy • Unlike the First Amendment right to free speech, privacy (in the media context) is not a right explicitly guaranteed by the Constitution. • Instead, privacy law has developed over the last 100 years.

Types of Invasion of Privacy • I.Public Disclosure of Private and Embarrassing Facts • Courts have recognized that certain intimate details about people, even though true, may be "off limits" to the press and public. For example, publishing detailed information about a private person's sexual conduct, medical condition or educational records might result in legal trouble. In order to succeed in this kind of lawsuit, the person suing must show that the information was: • (1) sufficiently private or not already in the public domain,• (2) sufficiently intimate, and• (3) highly offensive to a reasonable person.

The “Newsworthiness” defense • A news organization will be protected from a private facts privacy claim if it can show that the material published was "newsworthy." • Almost any information about a well-known public figure or a public official will be considered newsworthy. • Furthermore, reports of recent involvement in criminal behavior will be considered newsworthy for anyone.

Printing names of minors • In the unanimous 1979 decision, Smith v. DailyMail, the U.S. Supreme Court ruled that the First Amendment protects the right of journalists to use the names of minors in newsworthy stories as long as the information is "lawfully obtained" and "truthfully" reported.

Cohen vs. Cox Broadcasting Corp. • Cynthia Cohen was gang-raped by young men ages 14-16. • She died as result of the injuries suffered in the rape. • During the trial of the young men, a radio station owned by Cox Broadcasting used Cynthia’s name while covering the trial. • Cynthia’s father filed an invasion of privacy suit based on the Georgia statute forbidding the release of a rape victim’s name. • The Georgia courts upheld Cohen’s claim of invasion of privacy. • The Supreme Court ruled that the Georgia statute was unconstitutional because the information was already a part of the public court record. Because anyone could access the information, it was already “published” and, therefore, not private. Cox Broadcasting could not be punished for releasing public information. What you need to know

Types of Invasion of Privacy • II. False Light • A false light claim can arise anytime you unflatteringly portray — in words or pictures- a person as something that he or she is not. A typical "false light" problem can arise where a misleading caption is published with a photo (for example, a caption describes a bystander at an unlawful demonstration as a "participant").

Types of Invasion of Privacy • II. False Light (con’t) • The elements of false light are: • (1) the portrayal must be found to be "highly offensive to a reasonable person" and • (2) the reporter had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. • The same legal standards that apply to libel apply to false light. • The distinction between false light and libel is that in false light claims one need not prove injury or damage to reputation, but only that the statement was highly offensive. • Courts in some states have refused to recognize false light claims because of their similarity to libel.

Types of Invasion of Privacy • III.Intrusion Upon Seclusion • Intrusion is a claim often based on the act of news gathering. • A reporter can be sued even when the information obtained is never published. It occurs when a reporter gathers information about a person in a place where that person has a reasonable right to expect privacy. • However, newsworthiness can also be a defense to this kind of privacy invasion. • As a general rule, reporters are allowed to enter privately-owned public places, for example, private school campuses or malls. • However, also as a general rule, they must leave when they are asked.

Most common types of Intrusion • (1) Trespass: going onto private property without the owner's consent. • (2) Secret Surveillance: using bugging equipment or hidden cameras. The laws vary by state but as a general rule reporters can legally photograph or record anything from a public area, such as a sidewalk, but they cannot use technology to improve upon what an unaided person would be able to see or hear from that public place.

Most common types of Intrusion • (3) Misrepresentation • Invalid or exceeded consent. Undercover reporting is not necessarily an invasion of privacy as long as the disguise is not used as a means to trespass or engage in an activity that would not otherwise be allowed. • For example, it would not be an intrusion for a minoritystudent reporter to pose as a potential pledge to investigate a story about racial discrimination inside a fraternity. The reporter has a right to pledge whether he is serious about it or not.

Types of Invasion of Privacy • IV. Misappropriation of Name or Likeness • Misappropriation is the unauthorized use of a person's name, photograph, likeness, voice or endorsement to promote the sale of a commercial product or service. (For example, using a photo of your school's star athlete in an ad for a pizza restaurant without her permission.) • To avoid problems, publications should routinely have subjects sign a model release form written in simple, straightforward language when using their name or likeness in a commercial ad. • Regardless of whether or not a release form has been signed, however, courts have generally allowed the media to reuse editorial photos or clips in its own self-promotion provided there is no suggestion that the person actually endorsed the publication.

Consent as a defense • With all four forms of invasion of privacy, consent is a valid defense. • However, if you intend to rely on consent as your defense to a privacy claim you must make sure that you obtain the consent from someone with a legal right to give it and be candid with your subject about what information you want to use and how you intend to use it. • While not necessary to be valid, consent is always easiest to prove when it is in writing.

Consent as a defense • Consent is and should be effective if a minor is "capable of appreciating the nature, extent and probable consequences of the conduct (to which he consents)," even if parental consent is not obtained or expressly refused. • This reasoning is in line with what courts have said when determining whether a child is responsible for the injuries he causes, his crimes and confessions to crimes. • When obtaining consent from a minor, it is essential that a student journalist take extra precautions to insure that the minor is fully informed of what is taking place. • While most minor high school students probably can provide valid consent, most elementary-aged children, because of their immaturity, probably cannot.

You be the Judge • Scenario 1 • Darcie Lindholm is a sophomore. Just recently, she has been selected by Principal Rusty Anderson to be a part of the Sophomore 100, a group of sophomore students who rank between 1 and 100 academically and meet monthly during 4th hour. • Darcie is thrilled by the honor, but worried. Honors Geometry, her 4th hour class, is the one that challenges her the most. She isn’t sure she can afford to miss class even once each month. • Darcie arranges to meet with her counselor, Christy Parker, after school on Monday. • Chris Leffingwell, a photographer for the Northwest Passage, is a desperate guy. He promised features editor Jenny Gleissen that he would have a photo illustration for her story on depression ready for tonight’s work night, but he doesn’t. Leffingwell doesn’t have a clue what he is going to shoot to satisfy the assignment. • When the Passage is distributed on Friday, Lindholm is shocked to see her picture accompanying the story on depression. The picture, taken through the window of the counselor’s door, shows her with her head supported by her hands, talking to Schmitt. • Lindholm’s parents have contacted Passage editor Ben Goldsmith and are threatening to sue on the grounds that their daughter has been falsely portrayed and because she should have been able to expect protection from prying eyes when speaking to a counselor. Schmitt’s office is at the end of a long hallway within the counselors’ suite.

Let’s take a minute… • … And look at the various types of invasion of privacy: • Public disclosure of private and embarrassing facts. • Darcie isn’t depressed and, even though the attachment of her picture to an article about depression makes it appear that she is suffering from depression, this might give her a reason to sue for libel rather than invasion of privacy. We need to look closely at False Light which we know is very closely related to libel. • False Light • Since Lindholm was in the counselor’s office in regard to an honor that she received rather than to discuss depression, this is likely an area of invasion of privacy that has been breached. • Intrusion upon Seclusion • Is it reasonable for Lindholm to expect that the counselor’s office is a place where she should expect privacy? If so, this area has also been breached. • Misappropriation of Name or Likeness • This really has more to do with someone taking your name or picture and using it in an ad without your permission • So, we are looking at False Light and Intrusion upon Seclusion

But can Lindholm win? • That’s up to the judge… • Wait… that’s you. • She can definitely prove False Light, but whether she can prove Intrusion upon Seclusion is going to come down to whether it is reasonable to expect privacy in a room where she is clearly visible from the hallway… • And that might come down to how well her attorney can argue the case.

You be the Judge • Scenario 2 • A huge crowd has gathered for an impromptu mayoral debate in Barney Allis Square. The topic of the debate is education… an issue of huge concern in the Kansas City, Missouri, district. The debate is going smoothly when suddenly there is a scuffle in the crowd. A young man has knocked a pistol out of the hands of a woman who was aiming at currfent Mayor Mark Funkhouser. He has her pinned to the ground and is yelling for others to get the police to assist him. • As the story breaks, it becomes apparent that the young woman was part of a conspiracy to assassinate the current mayor. The man, Gregory Silence, is a hero. • As reporters continue to dig into the story, they find out that Silence is not only a hero, but is also homosexual and this information is included in the story. The man is married and has been living as a heterosexual, but is indeed homosexual. As a result of the information printed in the local paper, Christine Silence divorces her husband of 10 years and his parents disown him. • Silence sues for libel, but loses this case. Why?

The Answer is… • Think back to our discussions of libel. What were the defenses against libel? • That’s right, Truth. In some states, truth is an absolute defense. If the reporter can prove, in the courtroom, that Silence is homosexual, this cannot be considered libelous. • If, however, Silence had sued in a state that requires Truth with Good Motive, the case isn’t nearly so cut and dried. He could win in this instance.

Wait a minute… • Why are we discussing libel in a lesson about invasion of privacy? • The area of invasion of privacy that deals with false light is remarkably similar to libel. A case that might not be viable as a libel case may have a chance as a false light invasion of privacy case. • In fact, much of invasion of privacy law bears a striking similarity to libel law. • With this in mind, let’s discuss this same case from an invasion of privacy point of view. • Does Silence stand a better chance of winning an invasion of privacy case, about the same, or less? • Why?

Hmmmmm… • Silence stands a much better chance of winning a Public Disclosure of Private and Embarrassing Facts/Invasion of Privacy case. • Let’s look at the three-part test: • • (1) sufficiently private or not already in the public domain,• (2) sufficiently intimate, and• (3) highly offensive to a reasonable person • Silence stands a pretty good chance of meeting these criteria. The only one he may have trouble with is number 3. “Highly offensive” may be a bit of stretch in today’s society. • Does Silence need to meet all three to have a viable claim?

You be the Judge • Scenario 3 • Justine Wallis is walking through Oak Park Mall in her favorite pair of Lucky jeans. A woman stops Justine and compliments her on how awesome she looks in those jeans. Turns out that the woman is a marketing director for Lucky jeans and wants to use a picture of Justine in a local ad. She is willing to pay $100 on the spot if Justine will let her photographer take some quick shots of her in the mall. Being a careful child, Justine calls her mom who says it’s okay. She comes over to the mall to watch the shoot and to make sure that Justine gets paid. • A month later, driving along I-35, Justine and her parents see the new Lucky jeans billboard. The only things on the billboard are the words “Get Lucky” and a picture of Justine’s posterior neatly tucked into that pair of dark wash blue jeans with the tell-tale wear mark just to the left of the left side pocket caused by Justine’s back-conscious Healthy Backpack. • Neither Justine nor her mom understood that only her behind would appear in the ad and Mrs. Wallis would certainly never have allowed Justine’s gluteous maximus to be maximized in this manner. • The Wallis’ are claiming an invasion of privacy due to unauthorized use of a person’s likeness. They never understood that Justine’s image would have been utilized in this manner and are horrified and embarrassed. They want the billboard taken down now.

Answer is… • The chances that the Wallis’ will win this one are pretty slim. • The check that Justine and her mom accepted from the marketing director constitutes consent; but, to be honest, it would have been better for the Lucky jeans folks if Justine’s mom had signed a consent form. This is Justine’s only hope for success in this case and, honestly, there’s not much hope here. • Once the photo has been taken and Justine has accepted the check, Lucky jeans can use the photo in just about any way they want. • Finally, although Justine and her parents can identify Justine’s rear by the worn mark near the pocket of her jeans, almost no one else will be able to identify Justine, so any claim of embarrassment isn’t going to hold up. No one else can tell it’s Justine unless she tells someone ( and she tells someone and he tells someone and so and so on…) • The Wallis’ will probably lose this one.

Bibliography Goodman, Mark (2000). Law of the Student Press. Student Press Law Center, Arlington, VA

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Invasion of Privacy