Chapter Five

1. Chapter Five The Right of Privacy

2. Objectives • To define invasion of privacy. • To define the four types of invasion of privacy. • To explain the defenses for invasion of privacy.

3. Privacy • A legal action to compensate persons whose right of privacy has been interfered with.

4. General stuff about privacy law • The word “privacy” doesn’t appear in the Constitution! • A “derived” right • State statutory rules or common law • In media law, privacy is a tort (civil suit) • Four privacy torts identified by William Prosser in California Law Review article in 1960

5. Judicial origins of privacy • 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren • “Gossip is no longer the resourceof the idle and of the vicious, buthas become a trade, which ispursued with industry as well aswith effrontery” • Argued for zone of privacy

6. Early ROP cases • Roberson v. Rochester Folding Box Co., 1902--New York passes first statutory law on ROP • Pavesich v. New England Life Insurance Co., 1905--First case that recognized ROP as a tort--New York passes first statutory law on ROP • Griswold v. Connecticut, 1965--Real beginning to ROP --State can’t interfere in sexual relations in marriage • Roe v. Wade, 1973 --Abortion private matter between woman and her doctor

7. Early ROP cases • Roberson v. Rochester Folding Box Co. (NY App. 1902): Abigail Roberson sued when her image was used to sell flour without her permission • She lost because no right of privacy yet • NY legislature responded with first privacy statute • “Name, portrait or picture of any living person cannot be used for advertising purposes… without first obtaining that person’s written consent”

8. Early ROP cases • Pavesich v. New England Life Insurance Co. (1905) • Artist Paolo Pavesich sued England Life for using his likeness in an ad without his permission. • Georgia Supreme Court upheld his right to sue.

9. Early ROP cases: Alternative lifestyles • Bowers v. Hardwick, 1986 --State can regulate sodomy between consenting adults • Lawrence v. Texas, 2003 --State cannot prohibit homosexuals from engaging in sexual activities legal for heterosexuals

10. The four privacy torts • Appropriation/Misappropriation/Right of publicity: unauthorized use of image or personal attributes (protection of property rights) • Intrusion: trespass into solitude • Private facts: publication of embarrassing private facts, particularly if true • False light: portraying someone in a fictionalized or distorted way • Governed by individual state law! • California recognizes all four torts

11. Misappropriation/Appropriation/Right of publicity • Is it illegal to appropriate an individual’s name or likeness for commercial or trade purposes without consent?

12. Misappropriation/Appropriation/Right of publicity • Right to privacy protects only the exploitation of the individual’s name and likeness. Use of someone else’s identity (name, image, voice, etc.) for commercial gain • Recognized in nearly every state • Difference between appropriation and right of publicity: ROP deals with commercial value of image (and survives after death as property right); misappropriation doesn’t care (and doesn’t survive as personal right)

13. Misappropriation/Appropriation/Two types of grievances • Feeling of shame, humiliation, or even damaged reputation associated with one’s name or photo disseminated widely in way over which we have no control • Lost income

14. Misappropriation/Appropriation/Right of publicity • Actions that are commercial uses. • Photo in a photographer’s window • Use of a person’s name or photograph in an ad • False testimonials • Use of someone’s likeness or identity in a commercial entertainment vehicle like a feature film or novel

15. Misappropriation/Appropriation/Right of publicity cases • Johnny Carson v. “Here’s JohnnyPortable Toilets, Inc.,” 1983 • Sinatra v. Goodyear, 1970 • Bette Midler v. Young & Rubicam, 1989 • Vanna White v. Samsung, 1992

16. Use of identity • Carson v. Here’s Johnny Portable Toilets (6CA 1983): • “Here’s Johnny!” used to advertise toilets! • Carson sought injunction, appeals court granted on basis that slogans could be part of identity • Sinatra v. Goodyear (9CA 1970): • Nancy Sinatra sued Goodyear for using actresses dressed like her singing “These Boots Are Made for Walkin’” • Lost since clear that she was not singing song or endorsing product

17. Misappropriation/Appropriation/Right of publicity and the news • Cher v. Forum, 1982 • Zacchini v. Scripps-Howard Broadcasting, 1977

18. Supreme Court case • Zacchini v. Scripps-Howard Broadcasting Co. (1977): Zacchini’s circus act was to be shot out of a cannon; entire 15 sec. of act shown on evening news in Cleveland over his objections • Zacchini alleged in right of publicity case that broadcast had deprived him of revenue; Supreme Court agreed

19. Misappropriation/Appropriation/Right of publicity in deceased cases • Lugosi v. Universal Pictures, 1979 • Comedy III Productions v. Gary Saderup, Inc., 2001

20. California case/law • Astaire v. Best Film and Video (9CA 1998): Robyn Astaire, Fred’s widow, sued under CA Celebrity Rights Act to stop Best Film from using stock public domain footage of him in documentaries or NFP instructional tapes • Court said no, she could not control non-commercial use of his old films • Astaire Celebrity Image Protection Act of 1999: duration of right of publicity extended from 50 to 70 years after death

21. Defenses to appropriation • Consent: strongest—written is best • Newsworthiness: clear second best; rarely works for media defendant • Fair use/fair comment: weak, but protect derivative uses of celebrity identities—famous open themselves up to comment, making fun of celebrities is important to popular culture

22. Intrusion • Is it illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual?

23. Intrusion • Like tort of trespass: right against unconsented entries into private spaces • In common law, defined as “offensive, physical, electronic, or mechanical invasion of another’s solitude or seclusion” • No need to prove publication;act of intrusion is the tort • Telephoto lenses and boommikes, or unlawful recordingof phone conversations or viahidden cameras

24. Intrusion Cases • Dietemann v. Time (9CA 1971 • Galella v. Onassis, 1973 • Deteresa v. ABC, 1997 • Food Lion v. ABC, 1999 • Wilson v. Layne, 1999 • Shulman v. Group W. Productions, 1998 • Sanders v. ABC, 1999

25. Early cases • Dietemann v. Time (9CA 1971): reporters for Life magazine got into Dr. Dietemann’s home under pretense that they wanted to be clients • Really reporting on story (with hidden recorder) about “quack” doctors practicing without license • Court said 1A not license to intrude • Galella v. Onassis (2CA 1973, ‘82):Jackie Onassis got restrainingorders against Ron Galella,stalker-photographer • Court recognized emotionaldistress: small zone of privacy • Unusual case

26. Hidden cameras • Deteresa v. ABC (9CA 1997): Beverly Deteresa was flight attendant on OJ Simpson’s flight to Chicago after murders • ABC went to her house and talked to her in plain view on her porch, secretly taped it, and aired some of it even after she demanded they not • 9CA said no reasonable expectation of privacy on her porch, where she knew she was talking to media • But see Food Lion v. ABC (4CA 1999), where ABC hit with $5.5 million damages for two PrimeTime Live staffers went undercover with hidden cameras to tape alleged food prep hazards at FL (award later reduced)

27. Ridealongs: “newsgathering tort” (behavior vs. content) • When journalists ride with police officers or enter areas police go with warrants • Wilson v. Layne (1999): Wash. Post journalists entered home of Charles Wilson with police when police arrived to arrest son (who was not there); Wilson in underwear fought with officer • Court said that it is 4A violation for journalists to enter home without resident consent, even if with officers who have warrant

28. California intrusion developments • Shulman v. Group W Productions (CA SC 1998): Ruth Shulman flipped her minivan and was tended by paramedics; video production company secretly taped her conversations with paramedics as they pulled her out of wreck (medics were wired) • CA Supreme Court saidShulman could sue TVproduction company forintrusion (“spying”),even though accidentwas newsworthy

29. Recording phone conversations • Bartnicki v. Vopper (2001): Frederick Vopper aired illegally-made tape of union members discussing controversy over salaries; tape had been given to him • Court said that when evenillegally-made tape concernsissue of public concern andmedia lawfully obtains from3rd party without participatingin illegal taping, 1A gives mediaright to air tape • Relied on Pentagon Papers case

30. California 1998anti-paparazzi law • Invasion of privacy to trespass in attempt to “capture any type of visual image, sound recording or other physical impression of (anyone) engaging in a personal or familial activity (if) the physical invasion occurs in a manner that is offensive to a reasonable person” • Also includes attempting to capture such info where there is a reasonable expectation of privacy even when there is no physical trespass if a “visual or auditory enhancing device” is used! • Can sue for 3x general and special damages—eek! • No penalty for publication under this law

31. Defenses to intrusion • Consent: best defense; inviting a reporter into one’s home or office implies consent • But don’t carry it too far—Dietemann • Consent exceeded when prying into desks or files when alone • Plain view: anything that can be seen in or from public place can be reported upon because nothing extra is needed to obtain information (but some disfavor due to abuses of tech) • Newsworthiness: not strong defense, although has been applied; strongest when on public property; weakest on private

32. Publication of private facts • Is it illegal to publicize private information about a person if the material that is publicized: • Would be highly offensive to a reasonable person, and • Is not legitimate public concern or interest?

33. Publication of private facts • Most common form of invasion of privacy • More prominent people get less protection • “Private facts”—information “highly offensive to a reasonable person” and “not of legitimate public concern” • Doesn’t matter if the facts are true—in fact, more damaging if they are!

34. Early private facts cases • Melvin v. Reid (CA App. 1931):movie made of former prostitute who had been acquitted of murder; maiden name used in ads • She moved on and rehabbed; courtsaid she could sue for privacy • “Social utility” test: if facts have littlesocial utility, may not be newsworthy • Sidis v. F-R Publishing (2CA 1940):reporter wrote “what ever happenedto” story on William Sidis, childprodigy, found him poor and underemployed, wrote sympathetic article • He avoided publicity, but continued newsworthy because of early publicity(once newsworthy, always newsworthy)

35. Private facts cases • Supreme Court Cases • Cox Broadcasting v. Cohn, 1975 • Florida Star v. B.J.F, 1989 • California cases • Times Mirror v. Superior Court of SD, 1988 • Briscoe v. Readers Digest, 1971 • Diaz v. Oakland Tribune, 1983

36. Supreme Court cases • Cox Broadcasting v. Cohn (1975) • Georgia TV station reported the name of the victim of a vicious gang rape and homicide, information its reporter obtained from the official indictment. • Deceased’s father brought privacy suit against station. • Ruled for the station but did not decline to rule on central question of whether truthful publications may ever be subjected to civil or criminal liability.

37. Supreme Court cases • Florida Star v. B.J.F. • Reported rape victim’s name, but two differences from Cohen case: • Rape victim was still alive • Got information from government source but was told the information was being given to him by mistake. • Victim’s name was obtained lawfully. • Court said it has not closed door on possibility that a future public disclosure plaintiff might prevail against the press for its reporting of true information.

38. California cases • Times Mirror v. Superior Court of San Diego (CA App. 1988): appeals court held that LA Times could be held liable for publication of woman who could identify murderer still at large, even though her name was public record • Briscoe v. Reader’s Digest (CA SC 1971): Reader’s Digest published truck hijacker’s name after 11 years when he had rehabbed and started new life; CA SC said basis to sue (even though he lost eventually)

39. California cases • Diaz v. Oakland Tribune (1983): • Toni Ann Diaz was a male but underwent surgery to change her sex. Enrolled at community college where she was elected student body president. • Oakland Tribune revealed sex change. She sued for invasion of privacy. • She won verdict at $75,000, but was overturned. • She dropped the case.

40. How do plaintiffs win? • Plaintiff must show facts are private • Sipple v. Chronicle Publishing (CA App. 1984): Oliver Sipple saved President Ford, and he was was gay; court ruled that info not private because of his active status in SF gay community • Highly offensive? • Virgil v. Time (9CA 1975):Mike Virgil, CA bodysurferwho boasted of eating spidersand biting a cheek off in SIinterview—consented, butrevoked; facts held to benewsworthy in understanding high-risk sports

41. Defenses to private facts • Consent: written is still best; can be revoked if done reasonably (Virgil) • Qualified privilege (public record/public proceeding): coverage of gov’t proceedings or documents is inherently newsworthy—everything in public records presumably “in the public” therefore not private facts—but have to report truthfully! • Newsworthiness: judges don’t want to second-guess journalist’s determination of newsworthiness • Truth is not a defense!! unlike in libel

42. False light • Is it illegal to publicize material that places an individual in a false light if: • A the false light in which the individual was placed would be offensive to a reasonable person, and • The publisher of the material was at fault when the publication was made?

43. False light • Being portrayed in erroneous and offensive manner; similar to libel, but without defamation • Different from libel: Info need not be defamatory (damaging to reputation), only “highly offensive to a reasonable person” • Person “portrayed” in a offensive manner—implied rather than explicit • “False portrayal of a person’s characteristics, conduct, or beliefs that casts a person in a false light”

44. False light cases • Time Inc. v. Hill, 1967 • Cantrell v. Forest City Publishing, 1974

45. Supreme Court cases • Time v. Hill (1967): story about howHill and family held hostage byescaped convicts—Time reportedsome fictions in play review • Applied actual malice: Matters ofpublic interest were not knowinglyfalsely portrayed, so Hills lost • Cantrell v. Forest City Pub. Co. (1974): “interview” with woman about how she and children survived after husband killed never occurred—never met reporter • Court found actual malice standard met in made-up interview

46. Two kinds of false light • Distortion: omitting or using facts out of context so that reasonable person might think ill of distorted person • Duncan v. WJLA-TV (DDC 1984): Linda Duncan walking down street in Washington DC with voiceover talking about millions of Americans infected with herpes— reasonable person might think her infected • Fictionalization:Hill and Cantrell

47. Defenses to false light • Truth: show that basic claims made by story are accurate • Consent: person may not like results of interview once it’s done and may revoke, but can argue consent given • Newsworthiness: in conjunction with constitutional defense, not useful alone • Opinion and fair comment: info must be understood by reasonable people as opinion; obvious parody protected

48. Legislative ROP laws • Privacy Act of 1974 • Children’s Online Privacy Act of 1998

49. Privacy Act of 1974 • Congressional law which recognizes the individual’s right to be left alone. • Gives all citizens the right to inspect most of the government files maintained on them to prevent improper distribution of those records, and to challenge errors. • Prohibits indiscriminate government snooping and prying.

50. Online privacy • Children’s Online Privacy Protect Act of 1998: companies cannot collect info about kids under 13 without parental consent • Limits ability of children under 13 to have email accounts. • Requires those who gather data to deal with parents before dealing with their children.