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Privacy
Privacy is defined as:
The right to be let alone. The right of a person to be
free from unwarranted publicity.
Right to Privacy
Beginnings
1890 Harvard Law Review article by Samuel Warren and
Louis Brandeis.
Not expressed in the Constitution but implied.
In the penumbras of the constitution. (1st, 3rd, 4th,
5th, and 9th Amendments)
Privacy Law
Four Categories of Privacy
Appropriation
Intrusion
Public Disclosure of Private Facts
Portrayal in a False Light
Appropriation
Unauthorized commercial use of another’s name or
likeness
Law protects a person’s right of publicity.
Law protects a person from shame and humiliation.
Appropriation
Defenses:
1. Consent:
Must be in writing.
Must name the parties to the agreement
Scope and duration of the agreement
Consideration
Subject to the rules of contract law
Appropriation
Defenses:
2. Newsworthiness.
Very broad defense.
3. First Amendment
Information of Public Interest
But, see Zacchini v. Scripps-Howard
Intrusion
Defined as the unauthorized violation of one’s
legally protected physical sphere of privacy.
Trespassing
Eavesdropping, especially at home or office.
Intrusion
4th Amendment protects against government searches that
are unreasonable.
Tort Law (privacy) protects against intrusions by
private citizens.
Public places
Observing and listening permissible.
Harassment and assault are not permissible
Intrusion
Private Places:
Bugging and wiretapping (3rd party recording) illegal
for journalists.
Participant recording (1 party knows). Allowed in more
than 40 states; illegal in Florida.
Secret recording in one’s place of business: Law is
unclear.
See Dietemann v. Time Inc.
See McCall v. Louisville Courier-Journal
Intrusion
Trespass: Entering private property or inviting someone
to go on private property without consent of the owner or possessor of the property.
But, see Florida Publishing Co. v. Fletcher
Public Disclosure of Private Facts
A publication or broadcast that:
would be highly offensive to a reasonable person.
Is not of legitimate concern to the public
See Barber v. Time Inc.
Public Disclosure
Defenses:
Consent
First Amendment.
Cox Broadcasting v. Cohn and BJF v. The Florida Star
Newsworthiness
Public Occurrences
Public domain
Strange and unusual events
Portrayal in a False Light
Disseminating highly offensive false publicity about
someone with knowledge of, or with reckless disregard for, the falsity.
Doesn’t have to be defamatory.
2 Categories:
Distortion
Fictionalization
Emotional Distress
Two Types
Intentional Infliction
Conduct that is so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Hustler v. Falwell
Armstrong v. H&C Communications, Inc. (WESH-TV)
Emotional Distress
2. Negligent Infliction
The victim experiences emotional damages as a result of
the defendant’s negligence.
Hyde v. Missouri
Negligence
Generally no liability for the media in negligence
suits.
Examples:
Physical Harm.
Economic Harm.
But, see Braun v. Soldier of Fortune Magazine
Civil Rights Violation
Generally, only the government can be sued for
violations of civil rights.
Private parties can be considered "state
actors" if
1. A close relationship between state and private party
existed.
2. Private party performed government function.
Civil Rights Violation
3. State forced or encouraged private party to
cooperate.
4. Or, state and private party engaging in joint action.
See Berger v. Hanlon, 129 F.3d 505 (1997) (CNN case).
© A.L. Fargo 2001
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