Chapter 3: Privacy

What is the difference between libel and privacy law?

Libel is centuries old and concerns defamatory statements; privacy law is relatively new, first suggested in 1890, and protects personal privacy.

Who first suggested a legal right to privacy, and when?

Samuel Warren and Louis Brandeis in an 1890 Harvard Law Review article.

What inspired Warren and Brandeis to write their article on privacy?

Outrage over the yellow press exposing the private lives of prominent individuals.

What event led New York to pass its 1903 privacy law?

A woman’s likeness was used on flour boxes without her consent, and courts said she had no legal recourse.

What did the 1903 New York privacy law prohibit?

Using someone’s name or likeness for commercial purposes without consent.

What are the two main branches of privacy law?

Constitutional privacy and common law privacy.

Does the word “privacy” appear in the U.S. Constitution or Bill of Rights?

No.

When did the U.S. Supreme Court first recognize a constitutional right to privacy?

1965, in Griswold v. Connecticut.

What was the case in Griswold v. Connecticut about?

A Connecticut law banning contraceptive counseling for married couples.

According to Justice Douglas, where does the right to privacy come from?

“Penumbras formed by emanations” from the 1st, 3rd, 4th, 5th, and 9th Amendments.

What later rights have been protected under the constitutional right to privacy?

Abortion rights and the right to marry people of the same sex.

What does constitutional privacy protect against?

Invasions of privacy by the government, not private individuals.

What does common law privacy protect against?

Invasions of privacy by individuals or the media.

What are the four main types of common law invasion of privacy?

Intrusion, Publicity to Private Facts, False Light, Appropriation.

What is the possible fifth form of invasion of privacy?

Right of Publicity (a variation on appropriation).

Which type of invasion of privacy depends solely on the defendant’s conduct, not publication?

Intrusion.

What must a plaintiff prove to win a suit for publicity to private facts?

The defendant gave publicity to matters concerning one’s private life, the matters would be highly offensive to a reasonable person, and the matters are not of legitimate public concern.

Why is publicity to private facts legally difficult to prove?

Courts want to protect individuals from unnecessary exposure but also avoid punishing defendants for publishing truthful information.

How does publicity to private facts differ from libel, false light, and fraud cases?

In libel, false light, and fraud, punishment is for publishing false information, but publicity to private facts concerns the publication of truthful private information.

What is one of the main challenges in publicity to private facts cases?

Deciding what information the public should and should not have access to.

How does “publicity” in a privacy action differ from “publication” in libel cases?

Publicity requires dissemination to a large enough audience for the matter to be considered publicized, not just told to a few people.

Is mass media required for publicity to private facts?

No. Publicity can occur without mass media.

What is an example of publicity under the law?

Sharing private information with all employees of a business or all members of a church or club could be considered publicity.

Would telling one or two people about private facts qualify as publicity?

No, that is not enough for publicity.

Does the law set a clear threshold for how widely information must be shared to be considered publicized?

No, there is no clear legal line, but sharing to a large group is generally enough.

When can a plaintiff sue for publicity to private facts?

Only if the information disclosed is truly private and not already public record or widely known.

Can information on the public record be the basis for a private facts lawsuit?

No. Information on the public record is not considered private.

Can events that happen in public be the basis for a private facts lawsuit?

No. Events in public are not private facts.

If private information is already widely known, can it be the basis for a privacy lawsuit?

No, widely known information is not private.

What are common categories of information generally considered private?

Sexual relationships, relations with close friends/relatives, financial matters, medical information, personal correspondence.

Can private information still be published legally?

Yes, if it is newsworthy.

Why can’t marital relations in divorce court be considered private?

Because divorce filings are public records.

Who was Oliver Sipple?

A former Marine who prevented an assassination attempt on President Gerald Ford in 1975.

What happened in the Oliver Sipple case?

His sexual orientation was publicized by a journalist after the assassination attempt; he sued for publicity of private facts.

Why did the courts rule against Sipple?

(1) His sexual orientation was already widely known locally, and (2) it was newsworthy.

What was the impact of the publicity on Oliver Sipple?

His health declined, he struggled with alcohol and drug abuse, and he died of pneumonia in 1989.

Does there exist an exhaustive list of private information?

No, but certain categories are generally considered private unless they are already public.

What does it mean for private information to become “newsworthy”?

Even private facts can be legally published if they are deemed important for public awareness.

What standard do courts use to decide if published information is “highly offensive”?

The reasonable person test — whether a reasonable person in the plaintiff’s situation would find it highly offensive.

Is something that is merely annoying or moderately embarrassing enough for a privacy claim?

No, the level of offensiveness must be high.

Give an example of something that is not highly offensive.

Disclosure that an athletic trainer loves chocolate candy.

Give an example of something that is highly offensive.

Disclosure that an athletic trainer has an extensive collection of pornographic films.

What key factor can override the offensiveness of private information?

Newsworthiness — if the information is newsworthy, publication may be legally allowed despite offensiveness.

What happened in Cape Publications v. Bridges?

Hilda Bridges was abducted and forced to strip; police rescued her while she wore only a towel; a photographer published her nearly nude photo in a newspaper.

How did the jury rule in Cape Publications v. Bridges?

The jury awarded damages to Bridges for publicity of private facts.

How did the appeals court rule in Cape Publications v. Bridges?

Reversed the ruling, finding the photo was newsworthy despite being highly offensive.

What does Cape Publications v. Bridges illustrate?

Even if publication is highly offensive, it may be allowed if it is newsworthy.

What happened in Bollea v. Gawker Media?

Gawker posted a 1 min 40 sec excerpt of a secretly recorded sex tape of Bollea with Heather Clem; Bollea sued for invasion of privacy.

What was Gawker’s defense in Bollea v. Gawker Media?

Bollea was a celebrity who had publicly bragged about his sex life, so the tape was newsworthy.

What was Bollea’s argument in Bollea v. Gawker?

His private life was distinct from his Hulk Hogan persona, and publication of the tape was deeply offensive and harmful.

How did the jury rule in Bollea v. Gawker?

In favor of Bollea; found offensiveness outweighed newsworthiness.

What damages were awarded in Bollea v. Gawker?

$115M compensatory + $25M punitive damages; later settled for $31M.

What was the broader impact of Bollea v. Gawker?

Gawker went out of business, showing even celebrities have privacy rights over deeply personal matters.

What broader principle comes from Bollea v. Gawker?

Even public figures have limits to privacy invasions, especially regarding deeply personal matters like sex tapes.

In a publicity to private facts case, what must plaintiffs usually prove about the information?

That it is not a matter of public concern.

Why is proving public concern important in private facts cases?

Most legal scholars believe it is required by the First Amendment.

What was the 1975 U.S. Supreme Court case involving public concern?

Cox Broadcasting Co. v. Cohn.

What happened in Cox Broadcasting Co. v. Cohn?

The parents of a 17-year-old rape and murder victim sued a broadcaster for publishing their daughter’s name, arguing it was private information.

What did Georgia law say at the time about publishing rape victims’ names? (Cox Broadcasting Co. v. Cohn)

It prohibited it.

Why did Cox Broadcasting use the victim’s name in their report? (Cox Broadcasting Co. v. Cohn)

The victim’s name, Cynthia Cohn, was included in court records and mentioned in open court during proceedings.

What was the Georgia court’s ruling in Cox Broadcasting Co. v. Cohn?

They concluded the publication of the victim’s name was not a matter of public concern.

How did the U.S. Supreme Court rule in Cox Broadcasting Co. v. Cohn?

Reversed the Georgia courts, ruling that since the name was part of public records, its publication was a matter of public interest, and punishing the broadcaster violated the First Amendment.

Did the Supreme Court clearly define what constitutes a matter of public concern? (Cox Broadcasting Co. v. Cohn)

No, they declined to spell out limits.

What later court attempted to define the limits of public concern? (Cox Broadcasting Co. v. Cohn)

The California Supreme Court in 1998.

Why is defining “news” difficult?

Because it can include momentous events and human-interest stories, and professional journalists sometimes disagree on what qualifies.

Give examples of clearly momentous events that are news.

September 11, 2001 terrorist attacks, the Great Recession of 2008, COVID-19 pandemic of 2020.

What is a human-interest story?

Stories about unusual events or personal topics, such as pets or hobbies, that may not contain necessary information but appeal to audiences.

Who decides what is news under the First Amendment?

The publisher, not the government.

When does the court decide what is newsworthy?

In cases involving lawsuits for publicity to private facts.

What is the significance of Shulman?

The California Supreme Court created criteria to assess “newsworthiness” to balance privacy and First Amendment rights.

What are the Shulman criteria for newsworthiness?

Value to public, intrusiveness of disclosed facts, importance of individuals involved, and relevance to the story’s purpose.

What is “false light” invasion of privacy?

Portraying someone publicly in a misleading or offensive way, focusing on emotional harm rather than reputation.

How does false light differ from libel?

False light protects the right to be left alone; libel protects reputation.

What must a plaintiff prove in a false light case?

1) Publicity placing plaintiff in false light; 2) Highly offensive to a reasonable person; 3) Often: actual malice.

What is “actual malice” in false light cases?

Knowledge of falsity or reckless disregard for truth.

Why is actual malice controversial in false light claims?

Courts are split — some require it, others require negligence, and some states ban false light claims.

What happened in Time Inc. v. Hill (1967)?

Life magazine staged photos implying violence in a real hostage case; Supreme Court required proof of actual malice for false light claims.

What happened in Cantrell v. Forest City Publishing (1974)?

Reporter fabricated quotes about Margaret Cantrell; SCOTUS upheld verdict for Cantrell, finding actual malice.

How do states differ on false light claims?

Some require actual malice, some require negligence, and some ban false light lawsuits.

What was the Solano v. Playgirl case about?

Playgirl’s cover suggested actor Jose Solano posed nude; court found possible actual malice and that it could be highly offensive.

What is the key difference in harm between false light and libel?

False light: emotional harm; libel: harm to reputation.

What determines if a false light claim is “highly offensive”?

The intent behind falsity — negligence is less offensive; knowing falsity is highly offensive.

What is the modern split among states on false light?

Some require actual malice, some require negligence, and some prohibit false light claims entirely.

What is appropriation in privacy law?

Using someone’s name or likeness for one’s own benefit without permission.

What are the two elements of appropriation?

1) Use of another person’s name or likeness. 2) For one’s own benefit (usually commercial).

Does appropriation require the use to be offensive?

No — even flattering use without permission can be appropriation.

What is meant by “benefit” in appropriation cases?

Usually commercial use (ads, products, promotions), but can include any personal gain from someone’s identity.

Give an example of something that is not appropriation.

Changing your own name to “Tom Hanks” because you admire the actor.

Give an example of appropriation.

Pretending to be Tom Hanks to sell tickets or profiting from using his identity without permission.

Why is appropriation important in privacy law?

It’s the oldest recognized form of invasion of privacy and protects against unauthorized commercial exploitation of identity.

What happened in Beverley v. Choices Women’s Medical Center (1985)?

Beverley’s name and photo were used in a clinic’s promotional calendar distributed for marketing; court found this was appropriation.

What damages did Beverley receive in her case? (Beverley v. Choices)

$50,000 actual damages and $25,000 punitive damages.

How did the court decide Beverley v. Choices?

The calendar was commercial advertising because it was distributed for promotion and paid for from the advertising budget, even though it contained health information.

What lesson does Beverley v. Choices illustrate?

If something promotes an organization and uses someone’s likeness without permission, it counts as appropriation, even if framed as informational.

How does the Michael Jordan case relate to appropriation?

It demonstrates how celebrity names and likenesses have strong legal protection under the Right of Publicity and how courts define commercial use.

What is a key takeaway about commercial use in appropriation cases?

Courts look at whether the use promotes or benefits the user, not whether the use is offensive or respectful.

Why is appropriation unique among privacy torts?

It protects against unauthorized commercial use of identity regardless of emotional harm or reputational damage.