The Law of Journalism & Mass Communication Chapter 6 Privacy: Limiting Journalists’ Access to Personal Information and Places

Sources of Privacy Protection U.S. Constitution Federal and state statutes Tort law

Development of Privacy Tort Law Warren and Brandeis’ 1890 Harvard Law Review article suggesting privacy protection Prosser’s 1960 law review article dividing privacy tort law into four parts

Privacy Tort Law Appropriation Intrusion Private facts False light

Appropriation Commercialization Right of publicity Personal right protecting against a person’s name, picture, likeness, voice or identity used for commercial or trade purposes without permission Right of publicity Property right protecting against well-known person’s name, picture, likeness, voice or identity used for commercial or trade purposes without permission

Appropriation First appropriation statute Abigail Roberson New York state legislature, 1903 First common law recognition of appropriation Paulo Pavesich Georgia Supreme Court, 1905

Appropriation Plaintiff Must Prove: Plaintiff’s name used Even a pseudonym or stage name Or plaintiff’s likeness used Even a look-alike But okay if prominent disclaimer is used

Appropriation Plaintiff Must Prove: Or plaintiff’s voice used Even a sound-alike But okay if prominent disclaimer is used

Appropriation Plaintiff Must Prove: Or plaintiff’s identity used Vanna White case “Cheers” case

Appropriation Defenses Newsworthiness First Amendment Artistic relevance test Transformativeness test

Appropriation Defenses Ads for the mass medium Consent Incidental use

Intrusion Interfering with another person’s solitude or meddling in a person’s private affairs If the intrusion would offend a reasonable person

Intrusion by Trespass Plaintiff’s case Defense: consent Plaintiff had reasonable expectation of privacy The defendant intentionally intruded on the plaintiff’s privacy The intrusion would be highly offensive to a reasonable person Defense: consent

Private Facts Publishing truthful, intimate, private information that is not of legitimate public concern If publishing the information would be highly offensive to a reasonable person

Private Facts The plaintiff must show the facts were kept private Revealed to no more than a few close family and friends

Private Facts Plaintiff must prove the private facts were given widespread publicity

Private Facts The published facts were not of legitimate public concern if published for morbid and sensational reasons

Private Facts First Amendment defense: Generally, the media cannot lose a private facts suit based on truthful information lawfully obtained from a public record

False Light Making a person appear to be someone he or she is not

False Light Libel protects a person’s reputation False light protects a person from emotional distress

False Light Plaintiff must prove Publication: widespread distribution Identification: the material was of and concerning the plaintiff Falsity The published material put the plaintiff in a false light that would be highly offensive to a reasonable person Actual malice, or perhaps only negligence

False Light U.S. Supreme Court has ruled in only two false light cases In both, the Court said all plaintiffs must prove actual malice Courts in some states follow the Supreme Court’s rulings Courts in some other states follow the Gertz ruling and allow private plaintiffs to show only negligence in false light cases Courts in a few states refuse to allow plaintiffs to bring false light lawsuits