• The news media invasion of privacy deals with common law, which varies by state.
• Tort: a wrongful act or damage (not involving a breach of contract) for which a civil action can be brought.

Definitions of 4 Privacy Torts:

• Appropriation -- Use of a person's name, likeness or identity for trade or advertising purposes without consent.
• Intrusion -- A physical, electronic or mechanical intrusion into someone's private space. This is an information-gathering, not a publication, tort. The legal wrong occurs at the time of the intrusion; no publication is necessary.
• Public Disclosure of Embarrassing Private Facts -- Publication of non-newsworthy, private facts about an individual that would be highly offensive to a reasonable person (true defamation)(so intimate that outrage the public's sense of decency).
• False light -- Publication of false, highly offensive (but not necessarily defamatory) information about an individual.

Most states give common law or statutory recognition to some or all four of the privacy torts.

In doing hypotheticals, determine which tort is suggested by the facts. Each tort has different defenses.

Use of a person's name, likeness or identity for trade or advertising purposes without consent.

It is the oldest, longest-recognized of the privacy torts (since early 1900s). It is the most legally concrete of the privacy torts, which means it is the most likely for the plaintiff to win.

Movies and works of fiction can't be guilty of appropriation.

Defenses to the claim of Appropriation:

• Newsworthiness: can use the name, likeness or identity in news stories, even though selling newspapers. This has been broadly defined to include blatant attempts to gain circulation, which means the news media also can later use the name or photo for advertising the publication or before to promo "coming next week", as long as it doesn't imply endorsement.
• Consent. For example, gameshows require participants to take the first step to enter contests. In Jeppson v. United TV (1978), a Utah man won on a claim of appropriation because a television station called him on the air after picking his name out of a telephone book as part of a dialing for dollars promo. He claimed the television station used his name on the air without his consent.
• Individual Not Identified.

History:

• Roberson v. Rochester Folding Box Co. (1902): a picture of Abby Roberson was plastered over town on a flier advertising a baking flour company, which used the picture without permission or compensation. The family claimed that the unwanted attention caused the girl severe embarassment and humiliation. The N.Y. Court of Appeals said there was no law against it.
• In response, the New York legislature created the first appropriation law (statutory right of privacy) in 1903.
• Pavesich v. New England Life Insurance Co. (1905): an insurance company used a person's picture to sell insurance without the person's permission. The Georgia Supreme Court recognized a common law right of privacy that had been violated by the unauthorized commercial use of someone's identity. It was the first state court to recognize such a right.

Some states recognize two types of appropriation:

1. Private People's Right of Privacy: using their name or picture without consent would cause embarrassment, shame, emotional distress, but this wouldn't hold for people who seek out and depend on publicity. They don't suffer emotional harm from public attention.
2. Celebrity's Right of Publicity: unauthorized usage causes loss of money (recognized in more than 20 states).

Differences in two:

Right of Privacy (Private Person)
• personal right
• right to left alone
• violation causes mental harm
• right dies with the person

Right of Publicity (Celebrity)

• property right
• right to profit
• violation causes monetary loss
• may be inherited or otherwise transferred

Private people can't claim loss of money because they don't normally make money off of their image., but a celebrity can. Celebrities can't claim publicity causes shame because they already are thoroughly publicized.

Zacchini v. Scripps Howard Broadcasting (1977): provides the precedent for right to publicity.

The Court said the First Amendment doesn't protect a broadcaster who took a performer's entire act and showed it without consent as news. Hugo Zacchini, the human cannonball, was performing at state fair. He denied consent to film to free-lance TV reporter. The fair owner asked the reporter back to tape it and the entire 20-second act was broadcast on local television.

In some states, including Oklahoma, the right to publicity can be inherited and bartered.

Catchphrases, nicknames, pictures and voices can be appropriated. In other words, using them without the person's consent is a violation.

"Look-alike" and "sound-alike" cases always revolve around the intended use of the image. It isn't by coincidence that people are using the image to advertise their product. So what constitutes a name or a likeness?
Carson v. Here's Johnny Portable Toilets (6th Cir. 1983): Recognized catchphrase as identifiable attribute considered part of celebrity's right of publicity.
• The slogan was considered an integral part of Carson's identity. Portable toilet company owner knew it was Carson's phrase and selected it for that reason.
• Trial court threw out Carson's complaint, saying there was no intention to deceive the public into thinking Carson endorsed the toilets, or that Carson had lost money.
• Appeals court agreed on those counts, but it said the trial court's interpretation of the right of publicity was too narrow. "If the celebrity's identity is commercially exploited, there has been an invasion of the right whether his name or likeness is used."

What constitutes an identifiable attribute that will be considered part of a person's right of publicity? Is it necessary that the potential audience will interpret the use as an endorsement?

• Midler v. Ford Motor Co. (9th Cir. 1988): After Bette Midler refused to do the ad, the ad agency hired one of her backup singers to do one of Midler's songs in her voice. Midler won the case.

• White v. Samsung Electronics of America, Inc. (9th Cir. 1992): Samsung VCR ad had blonde robot flipping cards on a game show. White claimed it was her likeness and WON. Flipping cards on a game show was her identity.

Some entertainment uses, such as Elvis impersonators have been found to be appropriation, but parody and satire, such as on Saturday Night Live, are protected.

A physical, electronic or mechanical intrusion into someone's private space. This is an information-gathering, not a publication, tort. The legal wrong occurs at the time of the intrusion; no publication is necessary.

Trespass is closely related to intrusion and is often claimed simultaneously with intrusion. Trespassing can be either a criminal charge or the basis for a civil complaint.

Information obtained through intrusion:

• If no one at the news media outlet commits the intrusion, then the media outlet is not responsible, even it if receives the information from the intrusive act.

  • Pearson v. Dodd (D.C. Ct of Appeals) (1969): Four former employees of Sen. Thomas Dodd, suspected of using campaign funds to pay for living expenses, gave copies of personal letters from the senator's office to columnists Drew Pearson and Jack Anderson.
    • Dodd sued for invasion of privacy and conversion, the crime of using stolen property.
    • Appeals court dismissed both counts. The columnist didn't steal, so he didn't commit the trespass. The court said Dodd should sue the person committing the act.

• If the reporter asks or hires the person to intrude, then the reporter is responsible because that person is an agent for the reporter.

• If the reporter knew that that intrusion had occurred but didn't direct it, then the reporter is not held liable. However, possession of classified documents would be a violation of law and could be prosecuted.

Public Places:

• A person is entitled to an expectation of seclusion when it is reasonable under the circumstances to expect that others will not interfere. People in public places have little expectation of privacy. People engaging in public activities must assume they might be photographed or filmed or that what they say publicly might be recorded.

• Common law generally holds that if in a public place, you can record anything you see, except you:
  1. can't harass (can be persistent, but not highly intrusive or overzealous; simply being annoying is not necessarily an invasion of privacy)
     • Galella v. Onassis (2nd Cir. 1973): First Amendment doesn't give right to harass. Public figure has right to physical private space.
       • Ron Galella, a free-lance photographer who built a career on pictures of Jackie Onassis, claimed she was a public figure.
       • A federal court agreed, but said the First Amendment does not license Galella to trespass inside private buildings. "There is no constitutional right to assault, harass, or unceasingly shadow or distress public figures."
       • Court ordered him to stay a specific distance away. In 1982, a court found him in contempt for violating the order. He promised to never take another picture of her.

  2. Can't use electronic or photographic equipuipment to enhance vision (can't use telephoto lens to see what can't see without it).

• You can eavesdrop in a public place; up to people in conversation to make private.

Intrusion involves peeping, snooping, or prying into private places:

• It's a crime to open mail.

• You can go through garbage once it's on the street.

• Recording telephone conversations:
  • The Federal Wiretap Statute makes it a crime for a third party to record without a court order. It doesn't matter what you do with the information.
  • Participant recording is legal under the federal law. It's no more damaging than simply retelling or taking notes. However, some states require notification. NOT Oklahoma.

• Intrusion cases are the clearest on private property.

• "Courts are divided over whether a restaurant is a private place in which a diner may expect to be free from unwanted photographers and interviewers." (The Law of Public Communication, p. 175.)
  • Le Mistral Inc. v. CBS (1978): Can't come in and create disturbance by taking photos.
    • WCBS-TV crew was doing a story on health code violations at swank French restaurant. Video showed staff throwing out the camera crew.
    • Owner sued for libel, false light, and trespass.
    • Judge threw out the first two counts but upheld the trespass charge. Restaurant owner gives implied consent to come in and eat. The TV crew exceeded the consent given by owner.

• Dietemann v. Time Inc. (9th Cir. 1971):"The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime."
  • A plumber who practiced medicine at home without a license. Life magazine reporter and photographer, working with the local district attorney, posed as a couple to get into his living room to obtain information for criminal prosecution. They used a hidden tape recorder and camera. The plumber was arrested and pleaded no contest. However, he sued for invasion of privacy.
  • Life's defense was First Amendment right to gather information. A federal district court awarded $1,000 in damages. The Ninth Circuit upheld. Reason Life lost: use of false identity.

Intrusion Defenses:

1. Journalist didn't go onto private property.

2. Consent:
   • Implicit: "Store owners give implied consent when they open their doors to the public." A customer does not need explicit permission to enter to browse and perhaps make a purchase. A property owner likewise gives implicit consent to a traveler to come onto the private property to ask directions, or to a journalist to ask questions, as long there are no no-trespassing signs and the reporter isn't asked to leave. Courts don't agree over whether trespass occurs when journalists mispresent themselves to gain access to a public business. In some cases, courts say that posing as customers or clients is no more trespass or intrusion than when food critics conceal their identities from restaurant owners.
   • Explicit.
   • Written.

3. Common Custom and Usage right to go on property with law enforcement and fire officials.
   • Fla. Publishing Co. v. Fletcher (Fla. 1976): (also known as the "Silhouette Case") Sets the precedent for this common custom and usage.
     • A newspaper photographer took a picture of a silhouette left on a floor by a girl's body after a fire. A fire marshal had asked the photographer to take the picture when his own camera ran out of film.
     • The mother, who was not home at the time of the fire, sued, claiming trespass and an invasion of privacy.
     • The Florida Supreme Court said there was no trespass or invasion of privacy. The fire was a disaster of public interest and the photographer was there at the invitation of an official. It is customary for journalists to accompany public officials to the scene of disasters.
     • The U.S. Supreme Court refused to hear the case.
     • Other courts have not recognized the defense, reasoning that the property owner is only giving consent to officials, not to reporters. The homeowner is too confused in emergency situations to decipher who should be there.

   • Advice: go on the private property to cover the news event but leave if asked to by the owner or by officials.

   
   

   False Light

   Information that puts a person in a false light that is highly offensive to a reasonable person.

   It is similar to libel, and courts often have trouble distinguishing between the two.

   False Light Defense:

   1. Truth: false light is the only privacy tort to allow truth as a defense.

   2. Individual was not identified.

   3. Priviledged source.

   4. Actual malice/negligence proof required by plaintiff.

   5. Not offensive to a reasonable person, but we don't know the standard.

   6. Consent.

   
   

   Public Disclosure of
   Embarrassing Private Facts

   1. true,
   2. offensive to reasonable person,
   3. not of concern to public, and
   4. so intimate that publication outrages the public's sense of decency.

   Media behaves poorly in these cases, but they almost never lose because the defenses are so strong.

   Defenses:

   1. Newsworthiness. The information is of legitimate public concern. This is defined broadly by the courts.

   2. Consent.

   3. Qualified Privilege.

   4. Doesn't outrage community notions of decency. It's not offensive to a reasonable person.

   5. Event took place in public.

   Example cases:

   Sidis v. F-R Publishing Corp. (2d Cir. 1940): Public figures have less privacy. Public interest outweighs privacy interest.
   • A former child prodigy, who had turned into a recluse, hadn't done anything with his life. New Yorker writes a sympathetic article. He doesn't deny claim. (If he had, he would have sued for libel and false light.)
   • The court says not embarrassing becaus once public interest, always public interest. Doesn't have to be important news.

   Cox Broadcasting Corp. v. Cohen (1975): Supreme Court establishes nearly complete protection for media to accurately report from official court document. (The media always win the right to print rape victim's name.)

   • TV station broadcast the name of 17-yr-old rape victim who died in the attack. Her father sued, claiming his privacy was invaded by the use of his daughter's name.

   Sipple v. Chronicle Publishing Co. (Calif. App. Ct. 1984): Sexual preference newsworthy because it countered stereotype of gay men and was public knowledge.

   • Former Marine sergeant (disabled Vietnam veteran) deflects gun during Ford assassination attempt by Squeaky Frome and Sarah Jane Moore. A publication outs him as homosexual. He was a gay rights activist in San Francisco. His family in the Midwest didn't know. He didn't deny, but he sued for disclosure of embarrassing private facts.
   • The court said his voluntary actions made Sipple subject to coverage, which "is not limited to the event that itself arouses the public interest." However, the court ordered its decision not be published in the official reports of California appellate decisions. So it may not be cited as precedent.

   Virgil v. Time Inc. (9th Cir. 1975): Line between public interest and morbid prying in violation of community standards.

   • Time Life article about strange, dangerous behavior of bodysurfer. He revoked consent after learning that the picture story would include those details. The article and pictures were published.
   • The court said it was not embarrassing to the point of morbidity. It was a legitimate attempt to explain bodysurfing and why people do it.

     "In determing what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community. What is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern."

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