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COM 400: Com Law The Right of Privacy |
Updated 03/10/2004 ; Copyright, 2004
Dr. Janet McMullen
Associate Professor of Radio Television Film
Reading Assignment: Middleton, Ch. 4; Linked articles.
Many of you watched the Super Bowl in January, 2001 in Tampa. People at the stadium probably expected that millions of television viewers would be seeing them...or rather the blurry dot that might be them on the screen for a split second. Most of them didn't know that their pictures were being taken when they entered the stadium, however. Nor did they know that those pictures were being compared to digital mug shots of criminals and possible terrorists. The ACLU thought folks might not like that, and so it has protested to the Tampa Police Department. The NFL agreed to the policed department's actions. What is at issue here? (Carey, 2001)
Brill's Content did an interesting piece in June, 2000, called "The Summer of Surveillance." It examined the new reality programs which were gaining attention and expecting big audiences. Programs like Survivor and Big Brother were focused on monitoring and essentially invading the privacy of people who agreed to be under surveillance for 24 hours each day. Mark Boal wrote, "Orwell (author of 1984) believed that a world without privacy was inhumane; the CBS show portrays the invasion of privacy as a form of entertainment." (Boal, 2000) Survivor was the mega hit of the summer, and Big Brother and other reality shows have been blockbuster hits. What does this public acceptance of the invasion of other people's privacy do to the expectation of protection of our own?
Like libel, PRIVACY is a TORT action. It is usually a state legal matter. People will usually sue for libel and invasion of privacy, hoping to win one or the other or both.
"The right of privacy is most often defined as
[1]the RIGHT to be LEFT ALONE, and
[2]THE RIGHT TO BE FREE FROM UNWARRANTED PUBLICITY.
Privacy law in most states is divided into four broad categories:
More recently, courts have awarded damages for intentional and negligent infliction of emotional distress." (Smith p. 442)
This is a significant issue in modern society. As we become more dependent upon new technology, there are more and more ways our privacy can be intruded upon.
The concept of the right of privacy came about out of a concern in 1900 that gossip was no longer an issue of decency, but had become a "trade" among some yellow journalists.
The right to privacy is never mentioned in the Constitution. If first emerges as a point of discussion in 1890 Harvard Law Review article co-authored by later-to-be Supreme Court Justice Louis Brandeis. He was concerned even then, that mechanical devices could be use to intrude into the private lives of citizens.
A constitutional basis for a right to privacy was not recognized until 1965 in Griswald v. Connecticut. The court overturned a Connecticut law which forbade the right to sell contraceptives. The court said that law unduly interfered in the private lives of married couples.
In 1973, the right to privacy was used as a justification for the legalization of abortion on demand, in Roe v. Wade.
In 1987 the existence of the right to privacy was a key issue in the confirmation of Judge Robert Bork. Bork is a strict constitutionalist and does not believe such a right is created in the constitution. That got him into trouble and he didn't get confirmed.
Privacy laws involve four different types of interests of the plaintiff and four different types of invasion:
The Four PRIVACY Torts are:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs
This is what people usually think of when they think of invasion of privacy. Intrusion is illegal in most states if a "reasonable person would find the intrusion offensive."
With the development of technology, intrusion is much more likely:
Invasion involves:
Even in public place, you can't intrude on someone's right to be left alone. The general rule is that if an interaction or activity can be clearly seen or heard in a public place, it may be photographed, listened to, and recorded.
IF the interaction which is involved has to do with private facts, then in some cases it may still not be intruded upon. In most cases, if the individual is in a public place, photography, audio recording or reporting is not considered intrusion.
When Christa McAuliffe's parents watched Challenger explode, causing the death of their daughter, the cameras locked on their expressions of grief and horror. The McAuliffes gave permission for news media to be at their daughter's funeral, but asked that they restrict their presence to two specific areas in the church. Their preferences were completely ignored. One church member said they were like "locusts,...They just invaded us and tried to strip us down." (Polskin, 1986)
Spectator John Neff found this out when SPORTS ILLUSTRATED published a photograph of him standing in a crowd of a Pittsburgh Steelers football game with his trousers unzipped.....The court said that his privacy was not invaded because he was standing in a public place. Neff v. Time Inc. (1976)
A man standing outside a building where a gambling raid took place found the court did not support his claim of invasion of privacy. The station was covering the news and had the privilege to record the story.
Intrusion can cause problems for reporters - especially when they become over zealous! On July 24, 1998, when two guards were shot at the U.S. Capitol Building, both CNN and MSNBC learned of the events and the identities of the men before their families did.
Hidden Cameras: Hidden cameras can be a problem. Again, there are conflicting case results.
In 2000, a court dismissed a case brought by the Atlanta International Church of Christ's campus ministry leader. A young woman took a hidden camera to a "Bible study" in which she was asked to discuss in graphic detail all her sexual sins. The video was broadcast on January 21, 1999 on Fox as part of a new piece called "Cults on Campus." The court found that everything which was broadcast was part of the minister's duties as a ministry leader and were therefore public, and not subject to a claim of invasion of privacy. (McDonald, 2000)
Recording Telephone Conversations:
To tap someone's phone is an invasion of privacy.
It's also a violation of the federal wiretap statute.
It is illegal to record someone else's conversation if you are third party, but in most states it's okay for one member of the conversation to record it and even give it to a third party with or without the consent of the other participant.
In May, 1999, a tabloid photographer received a sentence of six months in jail for eavesdropping on a private telephone conversation between Nichole Kidman and her husband, Tom Cruise. The photographer pled guilty to a federal wiretapping charge because had he been found guilty of two other violations, he could have been fined $20,000 and spent one year in prison. He will now spend his sentence in half-way house, pay a $3,000 fine have perform $150 hours of community service. He had modified a radio scanner so he could listen to the call which he sold to Globe. (AP, 5/18/99)
However, if you are a broadcast station YOU CANNOT put someone on the air or record them via telephone with getting their express consent first.
For a good site with specific information about Alabama law in this area, see Radio and Television News Director's Foundation, Hidden Cameras Hidden Microphones: At the Crossroads of Journalism, Ethics and the Law. 1998 http://www.rtndf.org/resources/hiddencamera/alabama.html This is an excellent resource with state-by-state information. Be sure to bookmark it and its updates as they become available for future reference.
Intrusion into Public and Private Places:
Journalists may find themselves in trouble if they remain on private property or inside business establishments when asked to leave by the occupant or owner. The legal wrong of intrusion occurs when the act of intrusion is committed, not when material obtained is broadcast or otherwise published.
The distinction between public and private places is not always so clear:
PRIVATE DWELLINGS: You have to get permission to shoot video or take pictures inside a private home. You can't gain access through misleading tactics. But if the homeowner consents, then you're on safe ground.
In 2002, the Supreme Court heard a privacy case concerning intrusion on private property. The state of Ohio passed a law that prohibited door-to-door solicitation without obtaining a permit. The law was intended to protect people, especially the elderly, from scam artists and unwanted interruption. The Jehovah's Witness group challenged the law in Watchtower Bible and Tract Society v. Village of Stratton, Ohio. The Justices didn't seem too impressed with the law, one calling it "astounding," and another concerned that Halloween Trick or Treaters could be required to get permit. (Mauro, Freedom Forum, 2/27/02) The court overthrew the Ohio law in June of 2002, calling it "offensive" and a violation of the First Amendment. (Mauro, Freedom Forum, 6/18/03)
IMPORTANT NOTE: Just because you enter a place with a government official does not mean you are protected. In fact, you may be guilty of trespass. In ADDITION: If you accompany an official during a civil rights violation, you may also be guilty of violating the party's civil rights. If you violate the constitution or a statute, you are guilty.
CASES:
Dietemann v. Time, Inc. (1971) Two reporters disguised themselves as patients and entered the home of a doctor who was thought to be a quack. They got the information, pictures and published a story in LIFE magazine. Dr. Dietemann sued and won. The court said the First Amendment was not a license to trespass, steal or intrude by electronic means into another's home or office. It did not become such a license simply because the person whose home was entered was suspected of committing a crime.
Dietemann was later arrested for quackery, but he still got $1,000 for the privacy invasion.
Boddie v. ABC (1984)(1988) ABC was sued after former 20/20 reporter Geraldo Rivera and an executive producer arranged an interview with a woman who claimed an Ohio judge was exchanging lenient criminal sentences for sexual favors. Sandra Boddie agreed to the interview but didn't want to be identified. ABC hid a camera and recorded the interview and a portion was broadcast on 20/20. Boddie sued, charging invasion of privacy and violation of the federal wiretap law. She didn't win. The court said since she had consented to the interview there could be no invasion. She didn't win on the wiretap charge either since the court decided that the Congress hadn't intended the law to inhibit the efforts of reporters in consensual situations.
While ultimately, ABC got off the hook, there's still some ethical questions which rise out of this case.
Doctrine of Conversion: A journalist who accepts and files documents obtained by another through intrusion has also committed intrusion.
Intrusion and Business Establishments:
Businesses are usually considered public places, but if you're asked to leave, you should do so.
Photographers entered a restaurant with cameras rolling investigating health code problems. Customers dived under the tables. When asked to leave, the video crew didn't. They lost in court (Le Mistral v. CBS, 1978)
Another news crew was doing a story on cruelty to animals and entered a private home with Humane Society investigators. They photographed despite the protests of the homeowners. They also lost their invasion of privacy suit. Anderson v. WROC-TV, 1981.
Implied consent and common custom and usage:
Under this doctrine if you are involved in a public event, you have given consent to be photographed. Under common custom and usage, you may enter private or business property as long as you leave upon request.
These doctrines are not used in all states and don't offer absolute protection.
Some cases have had conflicting results: "Ride-A-Longs"
A case in Florida (Florida Publishing v. Fletcher) involved a photograph of a 17 year old girl who had been killed in a house fire. Her mother was out of town and learned of the death of her daughter by seeing the picture on the front page of a newspaper. The picture had been taken by the photographer upon the request of the Fire Marshall who had run out of film. The court said is no unlawful trespass had occurred since there was no objection at the time the photograph was taken.
But another case in which a news crew went into a dormitory after a charge of abuse of students living there, the invasion of privacy was upheld.
In still another case, a WMTV-TV news crew was riding with officers in a Madison, Wisconsin police car and they entered the private home where the police were called. The property owner assumed the crew member was a police officer and never asked him to leave, but the Station lost in the suit because they entered and gathered news without permission, even though they were accompanied by police.
CBS got into trouble in 1994. They paid a Brooklyn woman an undisclosed amount of money in settlement over a Street Stories news crew taping of her and her daughter during a search in the middle of the night by Secret Service Agents. The news crew accompanies the agents, and while the agents were immune from invasion of privacy prosecution, the judge ruled the NEWS MEN WERE NOT! The judge said the crew had no more right than a thief to enter the woman's apartment and film her, especially after she had asked them not to do so. He even said that the agent who had invited the crew along on the search may have lost his immunity by doing so! Ayeni v. CBS 1994.
Berger v. Hanlon and Berger v. Hamann . It is also important to note that you cannot be involved with law enforcement in the planning of law enforcement activities. If you do, you expose yourself and the company for which you work to prosecution for civil rights violations. In this case, correspondents for a cable news network planned the trip with U.S. attorney's office, on which they would ride along and video tape the execution of a search warrant on a Montana rancher who was suspected of killing protected eagles. One of the federal agents was even wired with a hidden microphone. The reporter and the network were found potentially liable for privacy violation, civil rights violations, trespassing, and infliction of emotional distress.
Sometimes, even filming an event as it happens may be an invasion of privacy.
Shulman v. Group W. Productions, Inc. (1996). In this case an appellate court reinstated a privacy suit against Group W's On Scene: Emergency Response, saying the lower court had not considered the First Amendment Rights of the subject of that program. The woman had been injured during a family outing and the film crew had been given permission by the private helicopter operator involved in the rescue, but not the woman who was rescued. The woman believed her family tragedy had been exploited as entertainment, and the court apparently agreed. (Cox, 1996) This case was finally resolved out of court after eight years with a private settlement made over Labor Day, 1999. Details of the settlement could not be made public, but both parties agreed nothing would be gained by a trial other than bad publicity. (Cox, 9/14/99)
In 1999, the Supreme Court ruled in Hanson v. Berger and Wilson v. Layne that police officers can be sued for invasion of privacy when they allows reporters or photographers to ride along with law enforcement officials during an investigation or arrest, particularly if the journalists accompany the investigator into a person's home. (Knoth, 7/9/99; Ringle, 1999; Woolner, 1999; Ringel, 6/2/99)
A federal judge in New York put an end to the traditional "perp walk" in which criminal suspects had been paraded by cooperative police into areas where photographers could get pictures. (Mauro, 1999)
The bottom line: If you ride along, shoot only on public property and do not trespass onto private property! Get the property owner's permission before you proceed.
Even entertainment programs have the potential to invade privacy.... In January, 2004, Patricia Wiggins a California state legislator (D-Santa Rosa), introduced a bill which would require businesses to institute safeguards to insure confidentiality of personal information. Her action was in response to an episode of Crossing Jordan in which documents were used as props on the show. Those documents had been purchased from a prop supplier, but they were actual official documents and contained employees social security numbers, addresses, phone number and even medical information in some cases. These were papers which had been discarded by legitimate businesses such as tax preparation companies, medical and legal offices. They were obtained from recycling companies and failed businesses. (Fauseet, 1/28/04)
A recent commentary in the Washington Post by Susan Murray makes the point that our attraction to reality televsion may make us less sensitive to ever-present surveillance cameras and invasion of privacy. (Murray, 1/28/04)
You can't stalk and pursue persons against their will.
Ronald Calella went too far when he stalked and photographed Jacqueline Kennedy Onassis. He circled her boat with his so closely, that she feared he would damage her boat or she would damage his. In another case he frightened her son into falling off his bike. A restraining order was established against him, which he later broke.
The Kennedy family didn't fare much better when John Kennedy Jr. died. Quoted in Brill's, photographer Laura Cavanaugh said, "I just got lucky...I was only there for five minutes, and out came Caroline [Kennedy Schlossberg] and the kids. The other (photographers) had been waiting for hours." She sold that five minutes of work for $1,000. (Brill, 10/99) The article is linked at the end of the notes.
The whole issue of hidden cameras and paparazzi falls under this tort. See a special section at the end of the lecture notes on this issue.
As a result of pressure from members of the entertainment industry, California passed a law in 1999 which will provide grounds on which to sue paparazzi and recover damages from the people who employ them. The bill defines invasion of privacy as trespassing with the intent to capture audio or video images. (AP, 10/1/98)
The media can be held responsible for dissemination of true information if these facts are
What is considered private? Those things which are intimate or embarrassing to a degree that they outrage a community's understanding of decency.
When this happens, the facts may be....
Laws vary from state to state, and you are referred to your text for examples.
Publishing names of juveniles falls under this category
PRIVATE FACTS in other contexts....
There is no guarantee that news worthiness defense will protect a reporter from a privacy suit.
See Virgil v. Time, Inc. (re sports illustrated story about an athlete who ate spiders among other things...) and Howard v. Des Moines Register.
Private facts may include such issues as
Check applicable state laws and be VERY CAREFUL!
In some states, OUTRAGE is a separate basis for a lawsuit, and involves intentionally trying to inflict harm.
In order to win, a PLAINTIFF MUST PROVE these facts are WIDELY disseminated!
CASES:
Plastic surgeon who displayed before and after photographs of a facial lift was found to have revealed private facts.
Erich Foretich sued LIfetime Cable Network and the BCC for airing a segment in a documentary where his daughter was shown demonstrating on a doll how he had allegedly sexually abused her. He won; they settled.
It Must Be Established That Facts are Private:
No plaintiff can win a private facts suit unless he/she can prove that the facts in question are private. The courts have defined private facts as those that are not of general interest to the public and not a matter of public record or in the public domain.
Courts have ruled that the following are NOT private:
In Florida Star v. B.J.F. a newspaper identified the name of a rape victim after getting it from a sheriff's office. The release of the name violated the sheriff's office policies and an 80 year old Florida law.
In 1993, the Florida Appellate Court ruled that the law prohibiting the publication of a rape victim's name was unconstitutional. WHY? Because it only limited media publication not private dissemination -- i.e. gossip by individuals.
While the laws regarding publication of the names of rape victim may vary from state to state, legal and ethical questions still continue to exist. Some key cases:
Be able to discuss this case related to privacy issues related to both Bryant and his accuser.
Another case which might merit exploration regarding this topic is the recent case involving hazing and sexual assault of new players on football teams. Were names of those involved released? To what degree? If the names were not released, then were those NOT involved libelled?
In December, 2001, a New Jersey federal judge ruled that the state could not post the names and addresses of sex offenders on the Internet. A constitutional amendment had mandated that names, addresses and other information of sex offenders had to be placed on a web site. The judge said that since local notification was mandated by law (name, address, etc. distributed to the immediate network), posting the information on the web was not necessary and was a violation of privacy. (Associated Press, 12/10/01)
A 1999 case in Georgia is addressing the issue of whether 911 tapes are public records. (Renaud, 1999) I haven't been able to find a resolution to that situation, but it would prove interesting considering the broadcast and publication of 911 calls from William Shatner after the drowning death of his wife in the summer of 1999.
Hidden cameras were used in a case where videotapes of athletes at eight universities were made in locker rooms without the athletes' knowledge. The tapes of the nude athletes were sold on the Internet at a site advertising "hot younger dudes." There were 28 plaintiffs in the suit which sued the named several individuals, companies and ISPs in the suit. (Court TV, 7/28/99)
Highly Offensive Facts : These offend common decency and are not considered newsworthy.
Barber v. Time Inc. (1942): Time Magazine did a story about a woman with an eating disorder. Reporters went to the hospital and snapped a picture of her eating and referred to her as a "Starving Glutton." The court said that was invasion of privacy because
Un-newsworthy Facts:
Cape Publications v. Bridges (1982) Hilda Bridges was held hostage by her husband and forced to disrobe to discourage her escape. She did escape covered by a dishtowel, but the photograph taken revealed her hips and clearly showed she was naked. Court said her privacy was not invaded because her abduction was a newsworthy event.
Newsworthiness covers a broad range of subjects, especially those in public record, spot news such as auto accidents, and even things which are "strange and of interest to the public.
False Light: the dissemination of highly offensive false publicity about someone with reckless disregard for falsity or knowledge of falsity.
Gill v. Curtis Publishing, 1952 This case involved a picture which was fine, but a caption which suggested they were only interested in each other because of sex, which was NOT fine. The court agreed that the portrayal was "seriously humiliating and disturbing."
This is very important for broadcast journalists as well. Video and audio combinations can be very dangerous legally. Be sure they are accurate and clear!
False-light privacy cases are frequently combined with libel charges, but there are some differences:
Three types of false light:
DISTORTION: basically concerns omitting information or presenting it out of context (as with the GILL case above)
Coverage of gay marriage stories hold the potential for problems here. See "Mind you Images" by Kelly McBride (3-5-04) on Poynter.org at http://www.poynter.org/column.asp?id=53&aid=61982
Some classic cases offer the basics:
See also: Uhl v. CBS (1979) This case involved the controversial CBS documentary "The GUNS of AUTUMN." Mr. Uhl was shown as apparently shooting birds on the ground as opposed to "in flight" (which is not considered sportsman like). This impression was given because certain sequences of the film were omitted. He won.
Braun v. Flynt (1979) An innocent picture of Mrs. Ed Braun was used in Chic magazine. The content of the magazine is totally sexual, and Mrs. Braun was horrified to learn her picture was there (see p. 191 of Middleton for more details). She won since the picture was used without her permission.
Juxtaposition of video and audio or pictures and text can created distortion in a newsworthy situation.
Be careful that a caption does implicate someone pictured who was not so specifically involved. Editing is also a problem.
MANY examples are cited in the text, be sure to examine them.
If a journalist is given an interview or has permission to write a story, the subject of that story may not dictate what the journalist writes or where the story goes, unless that is stipulated in a contract. (See Cher v. Forum International). The moral of that story is, if you're interviewed, be careful what you say!
FICTIONALIZATION: The addition of fictional dialogue or characters to what are otherwise factual works is fictionalization and can cause problems. Fictionalization is somewhat difficult to understand and can be complex.
In Cantrell v. Forest City Publishing Co., 1974 , the court changed the standard to involve calculated falsehoods and reckless untruth. Here reporters interviewed children and took pictures when parent was not home. The photography was not libelous because there was no inherent falsehood in photo, but there was in the feature story. Basically, the reporter just MADE UP what he wanted to say.
In another case, the tabloid SUN had to pay 96 year old Nellie Mitchell $650,000 for printing that she was pregnant and printing her photo. The court said that the Sun's story was malicious, hurtful and highly offensive and suggested that she was sexually promiscuous.
However, sensational crime stories that are fictionalized have been ruled to be matters of public interest and that affords the defendants with more protection. (See Time Inc. v. Hill p. 160 in Overbeck) This Hill family, which had been held captive in their own home for several days lost their suit of invasion of privacy based on fictionalization. A fictionalized play misrepresented their experience and caused them to relive the emotional trauma. The court said they couldn't get damages because their story was one about crime in the area, and that was of public interest. In order to win, they would have to prove MALICE; they would have had to show that falsehood was published either knowingly or with reckless disregard for the truth. The Hill's couldn't do that.
In 1997, a new York Librarian filed suit against the author and publisher of the book, Primary Colors, because of character fitting her description in the book. The book, widely assumed to be based on the primary campaign of Bill Clinton, described events very much like those which had taken place in the Clinton campaign. One of those events was a visit by the candidate to a public library to applaud its literacy program. The woman in question was the librarian, a black woman, who met the candidate. In the book, the "fictional" librarian fit the description of the plaintiff, but this librarian had sex with the candidate. As of this writing, the case has not gone to trial. (Video # 199708)
In January, 2001, a court upheld dismissal of a case against Seinfeld creators. The plaintiff was Michael Constanza who claimed that the character of George Constanza was based on him. Michael Constanza had a physical resemblance to the character George, he knew Jerry Seinfeld in college and came from Queens. He claimed he was portrayed in an unfavorable light. The court found otherwise. (Rudell, 1/30/2001)
Celine Dion sued the National Enquirer in 2000 for saying she was pregnant with twins when it knew she was not. She claimed false light invasion of privacy and infliction of emotional distress. (Court TV, 2/29/00)
Auburn University was ordered by a court to reinstate fraternity members who appeared in blackface and racially offensive Halloween costumes at a party at their frat houses. The local Beta Theta Pi chapter sued claiming their national headquarters and the university violated their freedoms of speech, association and privacy, specifically that their members had been portrayed in a false light as racists. See: Associated Press. "Alabama College Ordered to Reinstate Suspended Fraternity Members." 11/26/01, retrieved at http://www.freedomforum.org/templates/document.asp?documentID=15414
MINOR FALSIFICATION: This usually is not sufficient to support a suit. While some attempts have been made to sue on this basis, the courts usually don't buy it.
4. Appropriation for the defendant's advantage of the plaintiff's name or likeness
This tort concerns appropriating a name or likeness for advertising or entertainment values, and using the name or likeness without permission.
One's likeness or PUBLICITY is a property right that is worth money. Misusing it could cause devaluation of that property right and injury to the "pocketbook." The issue is not use, but lack of PAYMENT for use.
Privacy issues die when the person dies; but publicity rights may continue on with the person's heirs if they have rights to the deceased likeness or image...
Robertson v. Rochester Folding Box. Co. (1902) Abigail Robertson discovered her picture was used on advertising for a brand of flour. She lost her case in New York State because there was no statute against using her picture without her permission. New York state established such a law shortly thereafter as a result of publicity surrounding her case.
When an image is appropriated for purely commercial reasons, the courts are likely not to be very sympathetic:
See Carson v. Here's Johnny (1980) (a porta-potty company) You can imagine why he'd object to that!
Ali v. Playgirl (1978) The magazine published a sketch resembling Ali sitting in a boxing ring, and the court ruled that Ali's resemblance was wrongly used.
Midler v. Ford Motor Co. (1988) In this case, Ford asked Midler to sing her hit song, "Do You Wanna Dance" for a commercial. She didn't want to, so they hired one of her back-up singers for the spot and she imitated Midler. She did so well, that most people thought Midler actually recorded the spot. (and several witnesses testified to that fact in court). The court ruled in Midler's favor and ordered Ford to pay her $400,000.
Waits v. Frito-Lay ( 1992) Court awarded Tom Waits (who has a very distinctive and raspy voice) $2.5 million dollars from Frito-Lay. Frito-lay had paid someone to imitate him in a commercial for Salsa Rio Doritos. To top it off, Waits was philosophically opposed to celebrities endorsing products. In addition he got damages because of the likelihood that listeners would think it was he in the commercial.
Zacchini v. Scrippts-Howard ( 1977) The court ruled that broadcast of a performer's entire act poses a substantial threat to the economic value of the performance. People are less likely to buy tickets if they have already seen the show....
In another case sports trading cards bearing the likeness of Clifford Allison and Orel Hershisher were mounted on plaques and sold as collectors' items. The plaque company had not made any agreement to use the likeness of the sports figures , but assumed that once he bought the cards, he was free to do with them what he wished. The court agreed. (Allison v Vintage Sports Plaques, 1998) (Rudell, 1998)
In the case of promotional programs, if the use is incidental to the promotion, the use may be okay, but if it's deemed commercial.....
Jeppson v. United Television (1978) During a "Dialing for Dollars" program KTFX-TV in Salt Lake City the station broadcast the name and phone number of a local resident. The Utah court ruled that this was a promotional use of the individual's name and number and that it was against the law prohibiting any use of person's identity for advertising purposes.
However, in another case, an accident victim's picture was not considered to be appropriated when it was used in a promo for a newscast because her likeness was "incidental" to the promotion.
David Letterman ran into trouble a few years ago when he captured the image of an overweight woman eating a peach at the U.S. Open Tennis Tournament in 1996. That wasn't the problem; the problem was that he ran the clip numerous time over a period of days. The woman, Jan Brontsein, 54, filed suit claim he and his company, World Wide Pants, had used her image for comedic purposes without her permission and held her up to ridicule. Letterman had called the heavy-set woman "a seductive temptress" and his "Top Ten." She has a thyroid condition and a two spinal fusions. Letterman withdrew the film clip but refused to apologize because she was in a public place. Her lawyers concede that, but claim that that did not give him the right to use her picture numerous times, taken out of context, and to "victimize" her by "ridicule and scorn."
In 1999, Paula Abdul filed an invasion of privacy suit against a diet drink manufacturer which she claimed had used her name without permission. (Court TVonline.com, 1999)
Sound-a-likes and Look-a-likes
1988: Sinatra v. Goodyear and Midler vs. Ford Motor Co. both dealt with the use of sound-a-likes in commercials! The court said not nice to do that if celebrity is liable to be recognized.
In Sinatra (Nancy), it was obvious that she wasn't singing. In the Midler case, it seemed that she was.
There is a similar danger with look-a-likes. Even a disclaimer may not be enough.
More recently, Jerry's Subs and Pizza in Washington, D.C. (more than 100 stores) used a sound-a-like of Bill Clinton saying, "Show me the cheese!" In another commercial, the "Clinton" character calls his buddy on the hill, saying "Newt loves bacon." That spot ran in 1994 when Gingrich was campaigning against pork on the hill. White House lawyers called Jerry and demanded that he drop Clinton from the spots! The sub and pizza guy didn't back down however, and ran more commercials. They have been extremely popular and very effective advertising vehicle. In the most recent spot the presidential character wolfs down a pizza and the copy reads:
"Jerry: 'Gosh, sir, you ate that so fast, you practically ----"
Clinton: 'Inhaled it?'" (Montone, 1997)
DEFENSES IN PRIVACY CASES:
NEWSWORTHINESS:
NOTE: Paulsen v. Personality Posters, Inc. (1968) Supreme Court. In this case, the court said the poster of Paulsen in his mock presidential campaign was protected because if was of public interest and newsworthy.
ENTERTAINMENT news may also fall into this category.
MEDIA PROMOTION may also be protected. -- if there is no implied endorsement of the product, but rather the image is there to reflect the quality of the program or periodical. Thus, broadcasters may advertise future news programs with news footage.
Weber v. Multimedia Entertainment, Inc. (1998) . In this case the Salley Jessy Raphael Show claimed the newsworthiness defense after asking a teenage girl to misrepresent herself as a prostitute and encouraging her to forge her mothers signature on a form consenting to her appearance. The judge agreed that talk shows might be eligible for a newsworthiness defense but not in this case. The show had not obtained a valid consent, it was not a journalistic endeavor, and was fraught with fictionalization and falsification. The judge refused to dismiss the invasion of privacy , fraud, and defamation claims against the producers of the program.
Munoz v. Daily Report. Danielle Munoz lost her case against the Fulton Country, GA newspaper which published a picture of her naked body in 1996. The picture appeared next to an article about her suit over the unauthorized use of that same picture in an advertisement. The judge dismissed her charges of privacy violation after a hearing of only 15 minutes, saying it was up to the newspaper to decide what was newsworthy and what was not. The picture was obtained initially from a court file, part of the public record, and therefore was protected, regardless of the fact that it revealed the young woman's private parts, that she had never sought to have pictures of her body in the public forum. The newspaper has since filed a lawsuit against HER for having filed a "frivolous" lawsuit against it! [Here is a case where clearly the law and ethical imperatives are in conflict. While the paper may have has a legal right to publish the picture, it is questionable whether it was ethical to do so. What do YOU think?] (Bradley, 98)
Susanne Sommers had nude pictures taken and then decided she didn't want them to run in a men's magazine. The photographer kept them for 10 years and sold them to Playboy when she was popular on Three's Company.
Be sure you are familiar with the Privacy Act of 1974: recognizes "right to be alone"
Anxiety, humiliation, and other emotional distress are sometimes claimed on a separate tort, independent of defamation or invasion of privacy.
This is hard to prove, but it sometimes occurs when OUTRAGEOUS CONDUCT has happened.
In 1999, a court ruled that any emotional distress stemming from invasion of privacy had to be proven by an expert, and without such expert testimony only nominal damages may be awarded. (Wecht v. PG Publishing Co.)
Two types:
Intentional Infliction of Emotional Distress: "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." (Middleton, 1997, 208) This is sometimes called the tort of OUTRAGE.
Media get sued for this, but rarely are found guilty. The Falwell-Flynt case illustrates that point clearly.
When Dale Earnhardt was killed in an racing accident, several newspapers tried to see autopsy photos in order to ascertain if better seatbelt or safety gear would have saved his life. The family was appalled and upset. The coroner refused to release the photos, and the legislature immediately passed a law making it illegal for unauthorized people to see autopsy photos with out express permission of a court. The state believes the law protects the privacy of family members. A circuit judge heard arguments on March 6, 2002 and expressed concern about the constitutionality of the law. A decision has not yet been rendered. (Associated Press, 3/6/02 at http://www.freedomforum.org/templates/document.asp?documentID=15827 ) The newspapers involved have appealed the constitutionality of the law, in December of 2002 (Freedom Forum, 12/18/02) . In July, 2002, a three-judge panel of the 5th District Court of Appeal supported a lower court ruling that Florida's 2001 Family Privacy Protection Act was constitutional and retroactive and would protect the Earnhardt family from the release of Dale Earnhardt's autopsy photos. (Warner, 2002)
A case in your book illustrates one of those rare instances:
Armstrong v. H&C Communications, Inc. (1991) The station settled out of court after the higher court refused to dismiss the case. They had shown the skull of a 6 year old murder victim being lifted out of a box on camera. This was broadcast on the evening newscast and the girl's parents saw the report. They had not been warned, and their other daughter fled the room hysterically. The station was vehemently criticized by the public, and other journalists. (Middleton, 209)
Baugh v. CBS 1993 : CBS settled a suit with Yolanda Baugh who claimed the network intentionally inflicted emotional distress upon her by taping a conversation she had with a counselor immediately after she suffered an abusive attack by her husband. She was taped for Street Stories. A judge refused summary judgment against her requested by CBS. They settled.
However, Jerry Falwell didn't fare so when when he sued for emotional distress in the famous Hustler Magazine, Inc. v. Falwell (1988). In an ad for Campari Liqueur, he was portrayed as an incestuous drunkard and a hypocrite who did not believe what he preached. (The gospel was referred to as B...S...) ( See Middleton, 211 for a copy of the ad.) Falwell lost because he was a public figure and reasonable people would not have believed the ad to be true. Also, in tiny print at the bottom of the page appeared the words "AD PARODY -- NOT TO BE TAKEN SERIOUSLY"
Personal Note: I read the ad, and LOOKED for that statement, which I knew was there and didn't find until I had REALLY looked for it. Most people reading the ad would NOT have seen it. I found the ad totally shocking. I had read about it for several years, but I had not seen the text. I was surprise by how graphic and gross it was, and I find it hard to believe that court could come to the conclusion it did.
Q: DO YOU THINK THERE IS A CONNECTION BETWEEN A CULTURE WHICH DOES NOT VALUE TRUTH in the representation of its public figures and
a. PUBLIC FIGURES WHO DO NOT APPEAR TO VALUE TRUTH?
b. A SOCIETY which does not seem to value truth?
WHEN LYING can be done so blatantly and without impunity, is there a negative consequence for the culture? Is this a result of Times v. Sullivan and the protection it afforded those who wrote about pubic figures?
NEGLIGENCE: To what degree are media publications responsible for emotionally or physically harmful results of their publication?
Courts have said publications are NOT RESPONSIBLE unless the publication INCITED or encouraged the activity which resulted in that harm:
Key Cases:
Herceg v. Hustler (1987) after an article on autoerotic asphyxia, a 14 year old boy was found hanged and nude with a copy of the magazine at his feet. The court said the magazine didn't incite him to try the act.
McCollum v. CBS (1988) family tried to sue CBS records after their son committed suicide after listening incessantly to Ozzy Osbourne song about suicide.
Olivia v. NBC (1981) girl raped with a "plumber's helper" shortly after a similar incident was shown on the TV MOVIE Born Innocent with Linda Blair.
Zamora v. CBS (1979) Ronnie Zamora tried to claim he murdered a 82 year old woman because he was addicted to television violence, and it was CBS's fault.
In all of these cases, the court said the media content may have played a role in the harm, but was not the CAUSE because it didn't say "GO OUT AND DO THIS...."
In the case of Osbourne, the music had been around for years before the boy killed himself.
The court has held that the limits on society would be too harsh to ask artists to anticipate how their materials might be used. (Contrast that to Rod Serling's' concerns about the DOOMSDAY FLIGHT)
Soldier of Fortune Magazine ran an ad for a hit man; he was hired and somebody was killed. The magazine had to pay more than $2 MILLION to Michael and Ian Braun, sons of the murdered man. The magazine should have identified the risk because of the specific nature of the ad. .. (Middleton, 215) Eimann v. Soldier of Fortune, Inc. (1987)
Weirum v. RKO General, Inc.(1975) In this case, a radio station held a contest in which an air personality was in a car, driving from place to place, and listeners were told to meet the personality at the next stop to claim a prize. One young listener followed the DJ at high speeds on a freeway, forcing another driver off the road in an accident which claimed the driver's life. The court ruled that the station should have foreseen the possibility of such an incident, given the young age of most of their listeners.
When a Cubs fan reached up to catch a ball and interfered with the Cub's player's attempt to catch the foul ball during a key game in the World Series, the Chicago Sun Times editor defended his decision to publish the name, even though there could be foreseeable risk to the fan. Editor-in-Chief Michael Cook said, "It is the biggest story in tow and this is Chicago." Crowd reaction to the fan was so severe that he had been escorted out of the stadium by security officials and held in a safe location until almost an hour after the game. The Sun Times even released the fact that he had graduated from Notre Dame, and his place of employment on the paper's web site. (Strupp, 10-5-03)
ADDITIONAL CASES OF INTEREST AND SIGNIFICANCE:
Richard Jewell, a security guard at the 1996 Olympics in Atlanta, was under suspicion for the bombing in Olympic Park. In what could be called a "feeding frenzy" the media swarmed outside his home, followed him every where he went, investigated everything they could about him, and totally disrupted his life and that of his mother. He was never charged, and later, after a tearful plea to President Clinton by his mother, the FBI declared he was no longer a suspect in the bombing. During the days immediately following the bombing various news sources blatantly implied his guilt. The issues of libel and privacy are involved in this case. In the summer of 1997, Jewell settled with NBC for $500,000. Suits are pending with several other news media. Be sure to see the articles in the library packet and those linked below!
Aldeman, Ellen and Caroline Kennedy. "The Legacy of Richard Jewell." Columbia Journalism Review. March-April, 1997.
Shephard, Alicia. "Going to Extremes: Off-the-record word that Richard Jewel..." At AJR 10/96.
Diana Windsor. The
death of Princess Diana, caused a renewed discussion of the role of the press in
the pursuit of a story. Paparazzi (which is Italian for small bug) followed the
princess throughout the day and were reportedly chasing the vehicle in which she
was riding at the time of the accident. George Clooney and other have recently
called for change in the way celebrities are covered. In 1996, Paramount and
Warner Brothers cracked down on photographers sneaking into sets and posing as
extras to get pictures on closed sets. Be sure to read the linked articles and
the related ones in your packet.
"Tabloids Promise to Leave Princes Alone"
"Journalism After Diana" CJR Nov. 1997
"The Diana Effect: Will Anything Change?" CJR Nov. 1997
Professional Athletes.
There has been considerable controversy about the rights of athletes to
privacy. Should women have access to locker rooms? Courts have said yes, if they
are to have equal access to athletes to do their job. When should athletes not
be "fair game" for reporters? Athletes believe there should be some time when
they're NOT working. Members of the press have differing views. Some believe
athletes can be asked for comments pretty much anywhere other than their homes,
others say they should be left alone when they are not at work, especially if
the team organization makes them available to the press. The general consensus
is that athletes are public figures, and "if they can't deal with it, that's too
bad." (Reina, 1996)
Certainly the rape trial of Cobey Bryant has raised the issue about the newsworthy nature of professional athlete's private lives.There is even more concern regarding this case and the identification of his accuser. See the following articles for discussion of this case:
Hidden Cameras: This issue came to the forefront of public discourse in 1997 after the Food Lion case. ABC News sent reporters undercover into the Food Lion stores where they applied for jobs and were hired. Job applications were falsified and hidden cameras were used to video procedures used to package and process food. ABC believed the secrecy was justified in order to get protect the public from unsafe food. Food Lion did not question the truthfulness of the report, rather sued ABC News on the basis of fraud. Food Lion won and ABC will have to pay a multimillion dollar settlement unless the verdict is overturned on appeal. ABC was ordered to pay 5.5 million dollars, but that amount was reduced to $315,000 by a judge at a later time. Several important resources are provided for this case:
"Punishing the Press: The Public Passes Some Tough Judgments on Libel, Fairness, and Fraud." CJR, March-April, 1997,( http://archives.cjr.org/year/97/2/punishing.asp ) offers some interesting perspectives. While this article focuses primarily on libel suits, it is extremely important to note that frequently privacy suits are brought in cases where malice may not be proven (as the fraud charges were brought in lieu of libel in the Food Lion situation). The concept of using these types of suits to quiet the press is concerning, but equally concerning is the attitude toward the press exhibited by juries in these cases. Can that attitude have something to do with abuses, especially privacy abuses exhibited by the press in the last few months?
When hidden cameras are used, news organizations run the risk of lawsuits and damages. In a California case against ABC News, the judge considered issuing an injunction prohibiting ABC from using hidden cameras after a Prime Time Live story about a telephone psychic. Instead ABC was forced to pay over ½ million dollars in damages. The case was settled out of court and neither side is allowed to comment on terms of that settlement. CBS also had its problems with an Eye To Eye With Connie Chung segment in which hidden cameras were used to tape attorney-client conversations with parties involved in an insurance fraud. This one was settled out of court; CBS issued a statement of "clarification" which the lawyer who had been videotaped considered an "apology."
ABC can't seem to stay out of trouble (if indeed, they should...). The network has been sued for $3 million dollars by three police officers who say the network hired three black people to drive around in high-dollar cars. When the officers stopped them, they were then accused of racism. The Prime Time Live segment, "Drive While Black," ran in November, 1997. A hidden camera was used to film the incidents reported.
See: "Hidden Camera Update." AJR 12/95 p. 11 Investigative Reporting" AJR, March 1995, p.16 These are excellent articles; consider them required reading. While the AJR site is being reconstructed now, the articles should be available by searching through INFOTRAC at the Collier Library.
Also:
However, news people say that some stories cannot be told without the use of hidden cameras.
Harry Wu has used hidden cameras to document human rights violations in China on numerous occasions. He has done so at great risk to his personal safety, even to his very life. It is questionable that the truth about these abuses could ever be exposed with out the use of such technology.
SEE: "Back to the Gulag," at http://www.cjr.org/year/95/5/wu.asp
Again, The Radio Television News Director's Association has put together an excellent document on use of hidden cameras and microphones: Hidden Cameras, Hidden Microphones. RTNDA, (1998). It can be accessed on the web at http://www.rtnda.org/resources/hiddencamera/index.html
RTNDA also provides a checklist for these situations: "Deception/Hidden Camera Checklist", Communicator, April 1998 at http://www.rtnda.org/ethics/hidden.shtml
The issue of the use of hidden cameras and privacy is a very delicate one and one in which "right and wrong" cannot be determined by law alone. Ethical issues as well as privacy law must be considered when considering whether or not to use a hidden camera.
PRIVACY and the INTERNET
Digital technologies have caused real privacy/appropriation issue problems. Here are just a few examples from the last few years.
Dustin Hoffman will get at least $1.5 Million from Los Angeles Magazine which published a computer altered photo of him dressed as a woman. This was done without his permission. (AP, The National Law Journal, 2/8/99) The final award of $3 million was reversed in July of 2001. The appeals court ruled that the photo was in an article and not an advertisement and therefore it was protected editorial speech. (AP, Freedom Forum, 7/9/01)
Leonardo DiCaprio sued Playgirl over nude photos published in 1998. The magazine refused to let DiCaprio look at the pictures, nor would they reveal where they were obtained. He wanted an injunction against the publication of the pictures which were reported to involve full frontal nudity. He later settled with the magazine; terms were not released. At the time of the settlement, it was not disclosed whether the photos would appear in the July 1998 issue. (I didn't check...) (Taylor, 3/27/98; AP, 6/30/98;) They may have been with held considering the fact that Brad Pitt sued the same magazine for similar pictures and a judge barred the further distribution of the magazine which included the photos. (Taylor, 1998)
Alyssa Milano won her efforts to keep nude photos of herself off the Internet. She won three separate cases against web sites which had illegally posted nude photos of her. (Mr. Showbiz, 12/21/98)
President Bush's administration will have several privacy issues to deal with in the very near future. Congress will be examining financial privacy regulations, protections for electronic commerce, and how such laws can be enforced. The internet poses some of the most serious threats to privacy in the coming years. (Rotenberg, 2001)
New technologies have posed a number of problems where privacy is concerned, but the most serious concern the Internet. The problems are two fold:
1. How does one protect one's own private facts and information from intruders via online or Internet facilities?
2. How does one protect one's children from offending material which might come uninvited via the computer system?
For an excellent resource on online privacy, see the Primer on Online Privacy Law at the Arentfox site at http://www.arentfox.com/additionalsites/e-privacy/e-privacynews/privacy-2000/privacy-2000.html
Two laws have been passed concerning Internet privacy:
COPPA applies specific restrictions to websites and online services which knowingly obtain personal information from children under the age of 13. The FTC issued rules administering the specifications of the act became effective in 2000 and stipulate how service providers must obtain permission parents before they can collect any information from children. The web site mentioned above is the best source for specifics. See: "The Press and the Public: At Odds over Privacy?" at http://www.cjr.org/year/01/2/privacy.asp
This law (GLBA) applies to financial privacy and mandates financial institutions to makes specific provisions to protect the privacy of consumers. The bill extends to non-banking institutions such as credit unions and the like who are prohibited from selling personal information to third parties without consent.
Post 9/11/01 Privacy Issues:
In the wake of the September 11, 2001 terrorist attacks on Washington and New York, a number of privacy issues have arisen. The question being asked is to what degree do personal freedoms need to be limited so that national security can be preserved? As a result of concern for the later, state and federal government have instituted new or different privacy restrictions:
See
- Abrams, Floyd. "Balancing Act" at http://www.cjr.org/year/01/6/abrams.asp
- Associated Press. "States Seek to Restrict Access in Wake of Terrorist Attacks." at http://www.freedomforum.org/templates/document.asp?documentID=15523
RESOURCES:
Woolner, Ann. "Just Doing Their Jobs" Brill's Content. April, 2000. (Site no longer available without charge)
Dr. Janet McMullen