Comm Law Final- Privacy

Appropriation, false light, private facts

Three facets of privacy

Privacy of autonomy: personal decision making free from government influence

Privacy of space: personal home and belongings

Privacy of information: ability to control facts and data about yourself

Constitutional right to privacy

4th amendment: protects against search and seizure

14th amendment due process clause

Some state constitutions include the word private or privacy

Common privacy statutes

FERPA protects against disclosure of education data

HIPAA against medical information being leaked

COPPA protects online privacy of children

Legal tenets of privacy rights in common law

-appropriation of name or likeness- common one

-intrusion upon solitude or seclusion

-public disclosure of private facts 

-publication of false light material 

History of privacy law

Began with Warren and Brandeis Harvard Law Review article at the end of the 19th century mostly as a result of widespread urbanization and sensationalized journalism

Appropriation

Using name or likeness for commercial gain without the subject’s consent

Oldest privacy law aspect and is the only one used in some states

Right to privacy

compensates for emotional damage when name or likeness is used for a commercial purpose, entertainment that might create some kind of humiliation or distress for NORMAL PEOPLE THAT ARE NOT FAMOUS 

Right to publicity

FOR FAMOUS PEOPLE, protects against economic harm when name or likeness is used for a commercial purpose 

Commercial purpose

someone is making money from it on something like an advertisement or a website OR a testimonial falsely suggesting endorsement of a product or something similar 

Applies to full names as well as nicknames and shorthand 

Likeness includes photo, drawing, any truly identifying attributes even sound 

Transformative use test

legal standard courts use to decide whether someone’s First Amendment free speech rights outweigh another person’s right of publicity (their right to control the commercial use of their name, image, or likeness).

first amendment expression takes precedence over right of publicity if the image is TRANSFORMED to become a:

-parody

-song

-use of express opinions or ideas

-use for criticism 

Note lookalikes can also count 

News and public interest exception

-individuals cannot successfully sue for appropriation when their name or likeness is used primarily to communicate information or express ideas, as the actual laws here are intended to only protect commercial use 

-line between news and entertainment is difficult because of association between advertising and editorial content 

Incidental use exception

Fleeting use of name, image, or likeness that could have been accidental- like in the background

Booth rule

a person's name or likeness can be used in an advertisement for a media publication without violating their privacy, provided the photo or name was previously used as part of the medium’s legitimate news or information content

Issue-oriented advertising

Using someone to advertise a public issue (not a commerical product) is generally an exception to appropriations tort

Consent law

prohibits UNAUTHORIZED USE of a person’s name or likeness for commercial purposes, written consent is the best way to do this as oral consent can be withdrawn at any point before production starts (like any point), or it can no longer be relevant

you will also have issues with mentally or physically incapacitated people and minors

Life after death

Indiana is 100 years

CA is 70

NY is 40 and is the newest statute that took place in 2021

VA is 20 years

Intrusion

illegal to:

-intrude upon the seclusion, solitude, or private affairs of an individual 

-if a reasonable person would find the manner of intrusion highly offensive 

Similar to trespass but trespass can be unintentional 

EXAMPLE: filming a private street would be trespassing, but not intrusion if it’s just a picture of the outside of a house like on google earth, but if the plaintiff was in public in even the slightest sense of the word you cannot accuse intrusion

Public space versus paparazzi

Photographers are free to take pictures in public space, but they cannot harass, intrude, or otherwise obstruct normal life for celebrities

Common issues with intrusion and the press

Eavesdropping

Getting personal info from private documents 

Use of cameras

Robertson vs. Rochester Folding Box Co (1902)

Abigail Robertson’s face was used without her consent on flour boxes, she sued for privacy and emotional distress but NY didn’t have any privacy laws at the time she could sue based on, this led to first privacy laws

Public disclosure of private facts

1. publicity must be given

2. To private facts about a person

3. Facts must be offensive to a reasonable person

4. Facts must NOT be of legitimate public concern

Element 1: publicity must be given

-publicity: distributing information to a large number of people, making it certain that facts will eventually become public knowledge 

-publication: commuting information to a SINGLE THIRD PARTY like one newspaper

No specific number defines “large”, however judges often consider telling anyone anything on the internet to be publicity 

CASE EXAMPLE: Peterson vs Moldovsky: federal judge refused to dismiss a private-facts case against a man who sent pictures of his ex to six people, but because he emailed them judge said it was publicity 

Element 2: private facts about a person

-information is NOT considered private if:

-it happens in public 

-a large segment of the public is already aware of the information 

-the information is contained in public records

Facts must be offensive to a reasonable person

-such as sexual conduct, medical records, addiction recovery, education record, photos of the deceased

REASONABLE PERSON STANDARD: against eggshell plaintiffs who are very sensitive, in general most information about a public figure is viable here and private people have a higher expectation of seclusion, less open to scrutiny 

Element 4: No legitimate public concern

note newsworthy public figures will generally fall within scope of legitimate public concern

Starving glutton case- no legit public concern, private person and it wasn’t impacting anyone else

SPJ Ethical tenets to note

-pursuit of the news is not a license for undue arrogance

-avoid pandering to lurid curiosity 

Recounting the past

Fine when that would be the only reason to include something potentially offensive, not fine when that is used to humiliate

False light

when you portray a subject incorrectly, to be considered false light the material must be both highly offensive and the publisher of the material should be at fault 

False light versus defamation

False light v defamation:

-both accuse publication of unflattering or embarrassing material about a plaintiff

-false light doesn't need to prove major reputational damages 

How to determine between false light versus defamation

Defamation is reputational harm vs false light is emotional harm

KEY QUESTION: If the portrayal were true, would people think less of the person

IF YES defamation 

IF NOT NECESSARILY just false light 

Highly offensive- major misrepresentation of a person’s character, history, activities

To prove a publisher is at fault for false light, a plaintiff must prove that:

-defendant intentionally or recklessly made a false statement- for public figures you must prove actual malice, for private people negligence

-it was made publicly

-it was highly or outrageously offensive

-it caused personal harm such as emotional distress

Common cases where you will see false light:

-fictionalization: purposeful distortion of the truth for dramatic purposes, often this is found in docudramas 

-advisable if producing a docudrama to buy rights from real people who sign a contract giving up right to sue 

B roll- captured at the wrong time, in the background, caption/headlines/photos