Privacy: Introduction, private facts, and commercialization

chapter five of the textbook -- specifically, the section that covers privacy generally, the section that covers the claim of publication of private facts, and the section that covers commercialization.

A relatively new area of law, largely developed during the 20th century. Its origins are often traced to Warren and Brandeis's 1890 Harvard Law Review article.

Right of Privacy

Who wrote “The Right to Privacy”?

Samuel Warren and Louis Brandeis, in 1890.

What phrase is associated with Warren and Brandeis's privacy argument?

The “right to be let alone.”

What is the “right to be let alone”?

The basic idea that individuals have a right to be protected from unwanted intrusion or exposure of their private lives.

Who are Samuel Warren and Louis Brandeis?

Two Boston attorneys who wrote the 1890 Harvard Law Review article The Right to Privacy, often credited with establishing the foundation of modern privacy law.

Why is Warren and Brandeis's 1890 article important?

It argued that advances in technology and intrusive newspapers created a need for legal protection of individual privacy.

What did Warren and Brandeis argue privacy is rooted in?

The dignity of the individual.

When did privacy law largely develop?

During the 20th century.

What does the Fourth Amendment protect?

It prohibits unreasonable government searches of people's homes and papers and protects areas where people have a reasonable expectation of privacy.

What is a reasonable expectation of privacy?

An expectation that a place or personal information is private and that society recognizes that expectation as reasonable.

What is spatial/physical privacy?

Protection from physical or technological intrusion into a person's private space or activities.

What is decisional privacy?

The ability to make important personal decisions involving areas such as marriage and family without government interference.

What is informational privacy?

The ability to control information about oneself.

What is the GDPR?

The General Data Protection Regulation, a set of EU privacy regulations that took effect in 2018 and regulates the collection and use of personal data.

What are the four privacy claims discussed in this chapter?

Publication of private facts, intrusion, false light, and appropriation.

What is publication of private facts?

Public disclosure of intimate or private information about a person.

What is intrusion?

A physical or technological invasion of a person's privacy.

What is false light?

Publicly portraying someone in a distorted or fictionalized way.

What is appropriation?

Unauthorized commercial exploitation of someone's identity.

What is the easiest way to distinguish the four privacy claims?

• Private Facts:

• Intrusion

• False Light

• Appropriation

Private facts = revealing;

intrusion = invading;

false light = distorting;

appropriation = commercially using someone's identity.

What is Griswold v. Connecticut (1965)?

A Supreme Court case recognizing constitutional privacy protection for decisions involving marriage and contraception.

What is Roe v. Wade (1973)?

A Supreme Court case that recognized constitutional privacy protection for abortion decisions; it was later overruled by Dobbs v. Jackson Women's Health Organization in 2022.

What is Lawrence v. Texas (2003)?

A Supreme Court case recognizing constitutional protection for certain private decisions involving sexual practices.

Private-facts tort

Publication of private information that (1) would be highly offensive to a reasonable person and (2) is not of legitimate concern to the public.

What are the two requirements for a private-facts claim?

The information must be highly offensive to a reasonable person and not of legitimate public concern.

How is a private-facts claim different from libel?

Private facts involves publication of truthful private information; libel involves false information that harms reputatio

Is truth a defense in a private-facts case?

No. The information can be truthful and still violate privacy.

What type of harm does a private-facts plaintiff claim?

Shame, humiliation, and mental anguish from the disclosure of intimate information.

What is the public domain?

Information that is already publicly available, such as information in public records.

Can someone generally sue over information already in the public domain?

No. Information that is already public generally is not considered private.

What is the rule for information from open court records?

The First Amendment generally protects the media's publication of truthful information contained in official records available in an open court proceeding.

Cox Broadcasting Corp. v. Cohn (1975)

Established strong First Amendment protection for the media's publication of truthful information from open court records.

What is voluntary disclosure?

When a person willingly makes private information public, generally eliminating a privacy claim over that information.

What is newsworthiness?

Whether information is of legitimate public interest or concern.

What is the major First Amendment protection in private-facts cases?

The media generally cannot be punished for publishing truthful, lawfully acquired information about a matter of public importance unless the government can show a narrowly tailored state interest of the highest order.

Florida Star v. B.J.F. (1989)

Held that the First Amendment strongly protects publication of truthful, lawfully acquired information about a matter of public importance.

What three things receive strong First Amendment protection under Florida Star v. B.J.F.?

Information that is truthful, lawfully acquired, and about a matter of public importance.

What is consent?

Permission given by a person for their private information, name, or image to be published.

Can consent be explicit or implied?

Yes.

When should journalists be especially careful to obtain written consent?

When publishing information about medical or psychological conditions and minors.

Can consent be exceeded?

Yes. Consent only covers the use that the person agreed to.

Barber v. Time, Inc. (1942)

Time published a woman's photo and story about her unusual eating disorder; the court found an invasion of privacy because her medical condition could have been reported without revealing her identity

Bollea v. Gawker Media

Gawker published excerpts of a secretly recorded sexual encounter involving Hulk Hogan; the case illustrates that extremely intimate sexual information can support a private-facts claim.

Sipple v. Chronicle Publishing Co. (1984)

A newspaper revealed Oliver Sipple's homosexuality after he helped stop an assassination attempt against President Ford; the court found the information was not private because it was already part of the public domain and connected to a newsworthy event.

Sidis v. F-R Publishing Corp. (1940)

A former child prodigy sued over an article about his adult life; the court found the information newsworthy because his unusual past continued to be a matter of public interest.

What is the right to be forgotten?

European privacy concept allowing individuals, under certain circumstances, to request removal of links to information that is inadequate, irrelevant, or no longer relevant.

Google v. Spain (2014)

Recognized a European right to request removal of links to old personal information that was no longer relevant or in the public interest.