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Privacy &

Related Issues

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The 4 Privacy Torts

1. Appropriation

2. Intrusion

3. Disclosure of private facts

4. False light

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Appropriation

• The use of an individual’s name, likeness or identity for trade or advertising purposes without consent.

• Oldest recognized form of invasion of privacy.

• Roberson v. Rochester Folding Box Co., 1902, N.Y.

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What constitutes a commercial use?

Ads Fictional uses, such as movies Products, such as t-shirts, posters,

mugs

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What about news, history, etc?

Using an individual’s name or picture in a

news story, work of history, biography or

other factual use is NOT a commercial use.

“Incidental use” — Using an individual’s name

or photo to promote a news use is not

commercial use unless the promotion implies

the individual endorses the publication.

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Differences Between the Right of Privacy and the Right of Publicity

The same action — appropriation —can violate either an individual’s right of privacy or right of publicity. Conceptually, however, the two rights differ.

Right of Privacy Right of Publicity

personal right property right

right to be left alone right to profit from one’sidentity

violation causes mental harm violation causes monetaryloss

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Intrusion

Definition — A highly offensive physical or electronic intruding into someone’s private space or solitude.

• An information-gathering, not a publication, tort.

• The legal wrong occurs at the time of the intrusion.

• No publication is necessary.

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Notable Quote

“The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. 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.”

Dietemann v. Time Inc. (9th Cir. 1971)

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In determining whether intrusion has occurred, courts often consider three questions:

1. Did the plaintiff have a legitimate expectation of privacy?

2. Was the defendant invited in, or did she or he actually intrude? If invited in, did the defendant exceed the scope of the invitation or refuse to leave after being told to do so?

3. Did the defendant use deception to gain admission? Did the defendant engage in misrepresentation or fraud?

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Shulman v. Group W: An example

Cameraman for “On Scene: Emergency Response” taped scene of an auto accident and then followed 2 victims on board a rescue helicopter.

Court: Accident occurred on public highway so victims had no reasonable expectation of privacy at accident scene. However, they did have a reasonable expectation of privacy onboard the helicopter.

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Taping phone conversations Federal law permits participant taping. 13 states require consent of all parties

for taping. If you call one of those states, assume you are bound by the all-party rule.

FCC rules require broadcasters to inform people if conversations are being taped for on-air use.

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Wiretapping Taping or in any way intercepting a phone

conversation, email, voice mail, etc., to which you are not a party violates U.S. and state law.

Bartnicki v. Vopper, 2001, U.S.S.C.: A journalist who played a tape of an illegally intercepted cell phone conversation on the radio was not liable for wiretapping because he did not intercept the call himself; he obtained the tape lawfully; and the subject matter was of public concern.

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Trespass

Criminal • 1st degree: Entering or remaining without authorization in

a building belonging to another or on premises so enclosed or secured as to demonstrate clearly an intent to keep out intruders.

• 2nd degree: Entering or remaining on premises after being told not to enter or to leave, or entering premises marked with no trespassing or similar signs.

Civil• Any unauthorized entry on land in the possession of

another.

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Disclosure of private facts Definition: Publishing non-newsworthy, private facts that would be offensive to a reasonable person.

Publishing — widespread dissemination Non-newsworthy — not of public interest. Judges are very

reluctant to second-guess editors re: what is newsworthy. Private — truly private, little-known info, not part of public

records or proceedings Offensive — for a reasonable person, a jury determination

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Notable Cases

Cox Broadcasting v. Cohn, 1975 Information obtained from public records does not constitute private facts and, therefore, cannot be the basis for a disclosure of private facts lawsuit.

Florida Star v. B.J.F., 1989 A state may not punish the publication of truthful information lawfully obtained unless necessary to further a state interest of the highest order (a compelling interest).

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Hall v. Post, 1988The N.C. Supreme Court rejected the disclosure tort for

the following reasons:

It is constitutionally suspect because it allows recovery for the publication of truthful information and

It duplicates or overlaps with the tort of intentional infliction of emotional distress.

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False Light

False light is the tort of publication of highly offensive false information.

A very problematic tort because it so often is used as an “add-on” to a libel claim.

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Time, Inc. v. Hill, 1967

In a suit for false light invasion of privacy based on a report that is a matter of public interest, the plaintiff can win only if he or she proves the material was published with actual malice, that is, knowledge of falsity or reckless disregard for truth.

Notable Case

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Renwick v. N&O, 1984The N.C. Supreme Court refused to recognize false light

as a common law action in this state because it duplicates or, at least, overlaps with an existing

right of recovery for libel or slander and

it is constitutionally suspect because it allows recovery beyond that permitted in actions for libel and slander.

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Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress is defined as

(1) extreme and outrageous conduct,

(2) which is intended to cause and does cause

(3) severe emotional distress to another.

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Notable Case

Hustler v. Falwell, 1988

In a suit for intentional infliction of emotional distress, a public official or public figure cannot win unless he or she can show that a false statement of fact was published with actual malice.

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To win a suit for negligent infliction of emotional distress, a plaintiff must prove that

1. the defendant negligently engaged in conduct;

2. it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (or “mental anguish”); and

3. the conduct did cause the plaintiff severe emotional distress.

Negligent Infliction of Emotional Distress