A Closer Look at Privacy

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How Brandeis' theories affected media law.

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A Closer Look at Privacy

  1. 1. A closer look at privacy How Brandeis’ theories have affected media law
  2. 2. Four types of privacy law
  3. 3. Four types of privacy law• Commercial appropriation of name or likeness
  4. 4. Four types of privacy law• Commercial appropriation of name or likeness• Public disclosure of embarrassing private facts
  5. 5. Four types of privacy law• Commercial appropriation of name or likeness• Public disclosure of embarrassing private facts• False light
  6. 6. Four types of privacy law• Commercial appropriation of name or likeness• Public disclosure of embarrassing private facts• False light• Intrusion upon physical seclusion
  7. 7. Appropriation• Dustin Hoffman case shows there can be a fine line between commercial and editorial use
  8. 8. 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
  9. 9. Not protected
  10. 10. Protected“Obama, Biden, and Geithner”
  11. 11. Protected• But is Warhol’s art truly transformative?
  12. 12. Disclosure of private facts
  13. 13. Disclosure of private facts• Embarrassing private facts
  14. 14. Disclosure of private facts• Embarrassing private facts• Not newsworthy
  15. 15. Disclosure of private facts• Embarrassing private facts• Not newsworthy• Highly offensive
  16. 16. Disclosure of private facts• Embarrassing private facts• Not newsworthy• Highly offensive• To a reasonable person
  17. 17. False light
  18. 18. False light• “Libel Jr.”
  19. 19. False light• “Libel Jr.”• Individual represented in a false and highly offensive manner before the public
  20. 20. 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
  21. 21. Intrusion
  22. 22. Intrusion• Intentional invasion
  23. 23. Intrusion• Intentional invasion• Of a person’s physical seclusion or private affairs
  24. 24. Intrusion• Intentional invasion• Of a person’s physical seclusion or private affairs• In a manner that would be highly offensive
  25. 25. Intrusion• Intentional invasion• Of a person’s physical seclusion or private affairs• In a manner that would be highly offensive• To a reasonable person
  26. 26. Newsgathering and publication• Intrusion pertains solely to newsgathering
  27. 27. Newsgathering and publication• Intrusion pertains solely to newsgathering• Similar to trespassing — Miller v. National Broadcasting Co.
  28. 28. Newsgathering and 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
  29. 29. Other privacy torts• Fraud – Food Lion v. ABC
  30. 30. Other privacy torts• Fraud – Food Lion v. ABC• Emotional distress – Hustler Magazine v. Falwell
  31. 31. Other privacy torts• Fraud – Food Lion v. ABC• Emotional distress – Hustler Magazine v. Falwell• Outrage – Armstrong v. H&C Communications
  32. 32. 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
  33. 33. Hoffman v. Capital Cities/ABC• Los Angeles Magazine “crossed the line” between editorial and commercial use
  34. 34. 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?
  35. 35. McNamara v. Freedom Newspapers• Soccer player photographed with genitals exposed
  36. 36. 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”
  37. 37. 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?
  38. 38. 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 the Star’s actions
  39. 39. 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)
  40. 40. 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
  41. 41. 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
  42. 42. 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”
  43. 43. 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
  44. 44. 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?
  45. 45. Shulmanv. Group W Productions• Shulman sues on two grounds – Disclosure of private facts – Intrusion
  46. 46. Shulmanv. 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”
  47. 47. Shulmanv. 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
  48. 48. No special protection for newsgathering• Miller v. National Broadcasting Co. – Intrusion into a private place – In a manner that is highly offensive to a reasonable person
  49. 49. No special protection for 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”
  50. 50. No special protection for 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
  51. 51. No special protection for 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?
  52. 52. Hustler Magazine v. Falwell • Libel claim rejected, Supreme Court considers claim of emotional distress
  53. 53. Hustler Magazine v. Falwell • Libel claim rejected, Supreme Court considers claim of emotional distress • Justice Rehnquist cautions against trying to play editor
  54. 54. Hustler Magazine v. Falwell • Libel claim rejected, Supreme Court considers claim of emotional distress • Justice Rehnquist cautions against trying to play editor • Recourse?
  55. 55. Armstrong v. H&C Communications• A literally outrageous case
  56. 56. Armstrong v. H&C Communications• A literally outrageous case• Florida law against “outrage” punished a true report about a newsworthy story
  57. 57. 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?

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