Chapter Five Objectives To define invasion

Chapter Five

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

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

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

Judicial origins of privacy • 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren – “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as with effrontery” – Argued for zone of privacy

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

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”

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.

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

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

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

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)

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

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

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

Use of identity • Carson v. Here’s Johnny Portable Toilets (6 CA 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 (9 CA 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

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

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

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

California case/law • Astaire v. Best Film and Video (9 CA 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

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

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

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 boom mikes, or unlawful recording of phone conversations or via hidden cameras

Intrusion Cases • • Dietemann v. Time (9 CA 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

Early cases • Dietemann v. Time (9 CA 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 1 A not license to intrude • Galella v. Onassis (2 CA 1973, ‘ 82): Jackie Onassis got restraining orders against Ron Galella, stalker-photographer – Court recognized emotional distress: small zone of privacy – Unusual case

Hidden cameras • Deteresa v. ABC (9 CA 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 – 9 CA said no reasonable expectation of privacy on her porch, where she knew she was talking to media • But see Food Lion v. ABC (4 CA 1999), where ABC hit with $5. 5 million damages for two Prime. Time Live staffers went undercover with hidden cameras to tape alleged food prep hazards at FL (award later reduced)

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 4 A violation for journalists to enter home without resident consent, even if with officers who have warrant

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 said Shulman could sue TV production company for intrusion (“spying”), even though accident was newsworthy

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 even illegally-made tape concerns issue of public concern and media lawfully obtains from 3 rd party without participating in illegal taping, 1 A gives media right to air tape – Relied on Pentagon Papers case

California 1998 anti-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 3 x general and special damages—eek! – No penalty for publication under this law

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

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?

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!

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; court said she could sue for privacy – “Social utility” test: if facts have little social utility, may not be newsworthy • Sidis v. F-R Publishing (2 CA 1940): reporter wrote “what ever happened to” story on William Sidis, child prodigy, found him poor and underemployed, wrote sympathetic article – He avoided publicity, but continued newsworthy because of early publicity (once newsworthy, always newsworthy)

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

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.

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.

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)

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.

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 gay; court ruled that info not private because of his active status in SF gay community • Highly offensive? – Virgil v. Time (9 CA 1975): Mike Virgil, CA bodysurfer who boasted of eating spiders and biting a cheek off in SI interview—consented, but revoked; facts held to be newsworthy in understanding high-risk sports

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 secondguess journalist’s determination of newsworthiness – Truth is not a defense!! unlike in libel

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?

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”

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

Supreme Court cases • Time v. Hill (1967): story about how Hill and family held hostage by escaped convicts—Time reported some fictions in play review – Applied actual malice: Matters of public interest were not knowingly falsely 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

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

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

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

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.

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.

Internet cases • TBG Insurance Services v. Superior Court, 2002 • Intel Corporation v. Hamidi, 2003

Conclusions: Appropriation • Appropriation is the unauthorized commercialization of another. • No one has a right to use someone’s name or likeness or, in the case of celebrities, looks, voice or talents (sometimes inheritable property interest) without his or her permission.

Conclusions: Intrusion • Intrusion is the physical or technological violation of another’s privacy. • Generally, the media can record or take pictures of what is easily seen or heard in pubic and quasi-public places, but they are not permitted to engage in harassment, assault, or overzealous surveillance, even in public places.

Conclusions: Private facts • Private-facts tort is the highly offensive revelation of true, private information that is not newsworthy. • Publication of private information contained in court records is protected as well as lawfully acquired information in government records.

Conclusions: False light • False-light tort is the knowing dissemination of highly offensive false publicity. • A person may be placed in a false light through highly offensive distortion resulting from omissions and from the use of pictures and broadcast footage out of context. • He or she also may be cast in a false light through embellishment of news and fictionalization in books, short stories, docudramas, and other media.