A closer look at privacy

How Brandeis’s theorieshave affected media law

Four types of privacy law

Four types of privacy law

• Commercial appropriation of name or likeness

Four types of privacy law

• Commercial appropriation of name or likeness

• Public disclosure of embarrassing private facts

Four types of privacy law

• Commercial appropriation of name or likeness

• Public disclosure of embarrassing private facts

• False light

Four types of privacy law

• Commercial appropriation of name or likeness

• Public disclosure of embarrassing private facts

• False light• Intrusion upon physical seclusion

Appropriation

• Dustin Hoffman case shows there can be a fine line between commercial and editorial use

Appropriation

• Dustin Hoffman case shows there can be a fine line between commercial and editorial use

• A magazine cover may not be protected if it doesn’t pertain to contents

Not protected

Protected

“Bush, Cheney, and Rumsfeld”

Protected

• But is Warhol’s art truly transformative?

Disclosure of private facts

Disclosure of private facts

• Embarrassing private facts

Disclosure of private facts

• Embarrassing private facts• Not newsworthy

Disclosure of private facts

• Embarrassing private facts• Not newsworthy• Highly offensive

Disclosure of private facts

• Embarrassing private facts• Not newsworthy• Highly offensive• To a reasonable person

False light

False light

• “Libel Jr.”

False light

• “Libel Jr.”• Individual represented in a false and

highly offensive manner before the public

False light

• “Libel Jr.”• Individual represented in a false and

highly offensive manner before the public

• Unlike libel, false-light claims seek compensation for personal anguish and embarrassment

Intrusion

Intrusion

• Intentional invasion

Intrusion

• Intentional invasion• Of a person’s physical seclusion or

private affairs

Intrusion

• Intentional invasion• Of a person’s physical seclusion or

private affairs• In a manner that would be highly

offensive

Intrusion

• Intentional invasion• Of a person’s physical seclusion or

private affairs• In a manner that would be highly

offensive• To a reasonable person

Newsgatheringand publication

• Intrusion pertains solely to newsgathering

Newsgatheringand publication

• Intrusion pertains solely to newsgathering

• Similar to trespassing — Miller v. National Broadcasting Co.

Newsgatheringand publication

• Intrusion pertains solely to newsgathering

• Similar to trespassing — Miller v. National Broadcasting Co.

• Material improperly gathered may often be published or broadcast — Shulman v. Group W

Other privacy torts

• Fraud– Food Lion v. ABC

Other privacy torts

• Fraud– Food Lion v. ABC

• Emotional distress– Hustler Magazine v. Falwell

Other privacy torts

• Fraud– Food Lion v. ABC

• Emotional distress– Hustler Magazine v. Falwell

• Outrage– Armstrong v. H&C Communications

Other privacy torts

• Fraud– Food Lion v. ABC

• Emotional distress– Hustler Magazine v. Falwell

• Outrage– Armstrong v. H&C Communications

• Wiretapping– One-party states and two-party states

Hoffman v. Capital Cities/ABC

• Los Angeles Magazine “crossed the line” between editorial and commercial use

Hoffman v. Capital Cities/ABC

• Los Angeles Magazine “crossed the line” between editorial and commercial use

• A reasonable decision? Or is the judge playing editor?

McNamara v. Freedom Newspapers

• Soccer player photographed with genitals exposed

McNamara v. Freedom Newspapers

• Soccer player photographed with genitals exposed

• Judge Benavides: “[A] factually accurate public disclosure is not tortious when connected with a newsworthy event”

McNamara v. Freedom Newspapers

• Soccer player photographed with genitals exposed

• Judge Benavides: “[A] factually accurate public disclosure is not tortious when connected with a newsworthy event”

• Parallels to Dustin Hoffman case?

The Florida Star v. B.J.F.

• Highlights difference between ethics and the law– The Florida Star’s own ethics policy was

violated by publishing name– Victim suffered serious harm from

Star’s actions

The Florida Star v. B.J.F.

• Highlights difference between ethics and the law

• Media cannot be punished for naming rape victims and juveniles– Cox Broadcasting Corp. v. Cohn (1975)– Oklahoma Publishing Co. v. District

Court (1977)– Smith v. Daily Mail Publishing (1979)

The Florida Star v. B.J.F.

• Highlights difference between ethics and the law

• Media cannot be punished for naming rape victims and juvenile

• Marshall’s three grounds– Information was lawfully obtained– Information was publicly available– “Timidity and self-censorship” could

result

Diaz v. Oakland Tribune

• Was Toni Ann Diaz’s transgender status newsworthy or not? Three-part test– Social value of facts published– Depth of intrusion into private affairs– Extent to which person voluntarily

courted notoriety

Diaz v. Oakland Tribune

• Was Toni Ann Diaz’s transgender status newsworthy or not?

• Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor”

Diaz v. Oakland Tribune

• Was Toni Ann Diaz’s transgender status newsworthy or not?

• Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor”

• Entirely true story about the president of a college’s student body

Diaz v. Oakland Tribune

• Was Toni Ann Diaz’s transgender status newsworthy or not?

• Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor”

• Entirely true story about the president of a college’s student body

• Is Judge Barry-Deal playing editor?

Shulman v. Group W Productions

• Shulman sues on two grounds– Disclosure of private facts– Intrusion

Shulman v. Group W Productions

• Shulman sues on two grounds• Judge Werdegar throws out private-

facts claim on grounds that judges can’t act as “superior editors”

Shulman v. Group W Productions

• Shulman sues on two grounds• Judge Werdegar throws out private-

facts claim on grounds that judges can’t act as “superior editors”

• Allows intrusion claim to move forward

No special protectionfor newsgathering

• Miller v. National Broadcasting Co.– Intrusion into a private place– In a manner that is highly offensive to a

reasonable person

No special protectionfor newsgathering

• Miller v. National Broadcasting Co.• Branzburg v. Hayes and Cohen v.

Cowles Media– Judge Werdegar: “[T]he press in its

newsgathering activities enjoys no immunity or exemption from generally applicable laws”

No special protectionfor newsgathering

• Miller v. National Broadcasting Co.• Branzburg v. Hayes and Cohen v.

Cowles Media• Judge Werdegar: Group W’s story is

constitutionally protected, but not its reporting techniques

No special protectionfor newsgathering

• Miller v. National Broadcasting Co.• Branzburg v. Hayes and Cohen v.

Cowles Media• Judge Werdegar: Group W’s report is

constitutionally protected, but not its reporting techniques

• Should such reporting be protected?

Hustler Magazine v. Falwell• Libel claim

rejected, Supreme Court considers claim of emotional distress

Hustler Magazine v. Falwell• Libel claim

rejected, Supreme Court considers claim of emotional distress

• Justice Rehnquist cautions against trying to play editor

Hustler Magazine v. Falwell• Libel claim

rejected, Supreme Court considers claim of emotional distress

• Justice Rehnquist cautions against trying to play editor

• Recourse?

Armstrong v. H&C Communications

• A literally outrageous case

Armstrong v. H&C Communications

• A literally outrageous case• Florida law against “outrage”

punished a true report about a newsworthy story

Armstrong v. H&C Communications

• A literally outrageous case• Florida law against “outrage”

punished a true report about a newsworthy story

• What do you think?