Four Privacy Torts by tyndale


									Four Privacy Torts


      def: The unauthorized use of a person’s name or image for a commercial purpose
             (poster, public relations promotion, etc.) without permission. Appropriation can
             be the use of look-alikes, sound-alikes, nick-names, taglines, sayings, or slogans
             (ex. Here’s Johnny for Johnny Carson).

               Celebrities: suffer violation of their right to publicity (commercial loss)
               Private People: suffer emotional distress due to shame or humiliation due
                       to commercialization of identity (similar to private facts)

      Flake v. Greensboro News Co. (1934)
      Zacchini v. Scripps Howard (1977) (pg. 221)
             Only publicity suit brought before the Supreme Court.

Defenses:      Newsworthy, Consent, First Amendment

      (Tort of Publicity)
      NOTE: North Carolina is the only state whose highest court has refused to
      recognize Private Facts and False Light Torts. This puts North Carolina
      outside the mainstream of American jurisprudence.

      def: publication must be:
               1.     Highly offensive to reasonable person
               2.     Information not of legitimate concern to the public
               3.     Story is so intimate that it outrages the community’s notion of
                      decency ( 182)
      Cox Broadcasting v. Cohn (1975)
      Supreme Court establishes nearly total First Amendment protection for
      reporters reporting private information from official records available in
      open court.(txt. 184)
      Sipple v. Chronicle Publishing Co. (1984)
      California Appellate Court ruled that Oliver Sipple’s homosexuality was
      not a private fact because of his public gay activism in San Francisco.
      Also, because his brave action refuted widely held stereotypes of
      homosexuals. There was also a question (newsworthy) of whether the
      President delayed thanking him because he was gay. (txt. 188)
      Hall v. Post (1988)
      ─N.C. Supreme Court rejects this tort for being redundant with intentional
      infliction of emotional distress
Defenses:    Newsworthiness
             Public Records and Occurences: the media are generally free to
             report information that appears in Public Records or results
             through a person’s public activities (txt. 187)

             Strange and Unusual Newsworthiness: revelation of peoples’
             oddities: foibles, skills, talents, style of living, and natural gifts.
             These are the talents abilities and quirks of lesser know people.
             (txt 188-189) Check Virgil v. Sports Illustrated and Sidis v. F-R
             Publishing Corp. (txt. P. 189)

             Newsworthiness over Time: Once a person is newsworthy they
             tend to stay newsworthy. This comes into play regarding follow-
             up stories (Sidis v. F-R Publishing Corp.) and public records (stay
             public) of rehabilitated criminals. It’s all fair game. (txt. 190)

             May be explicit or implied. The more private the info (medical
             records, children, psychological maladies)…the more explicit
             consent needs to be. People who knowingly speak to reporters or
             are involved with a newsworthy public event (voluntarily or
             involuntarily) will usually be ruled to have given implied consent
             to be photographed or written about. (txt. 190) Also, the media can
             invade privacy if they exceed the bounds of the consent granted.

             Truth is NOT a defense. Facts are known to be true, just so intimate that it
             causes shame, humiliation or mental anguish

3.    FALSE LIGHT (txt. pg. 207)
      (Tort of Publicity)

      NOTE: NC does NOT recognize False Light claims as part of the common law of
      the State

      NOTE: Very closely related to Libel….In Theory, the difference is that a false   light
      claim may rest on a publication that is false but is not defamatory.

      def: Publication of information that is:
             1. False (published with knowledge of or reckless disregard for the
             2. Highly offensive to a reasonable person

             Highly Offensive Publications: (2 types) (txt. 208-211)
             1. Distortion – omitting information or using it (photos/video) out of
               2 .Fictionalization – The additional of fictional dialogue or characters
                       to what are otherwise factual works. (ie. Esterhaus case where he
                       reported an interview that never happened) (also, Time v. Hill fits
               3. Minor falsification that would effect only hypersensitive
                              individuals is usually not enough to carry a false/light suit.

False Light Plaintiffs must show FAULT

       Time Inc. v. Hill (1967)
       ─Plaintiffs involved with an issue of public concern must prove actual
       malice to win case (Supreme Court)
       Renwick v. News & Observer Co. (1984)
       N.C. Supreme Court rejects this tort for two reasons:
       1. redundant with the Libel tort, made cases unnecessarily
       complicated and was negated for judicial efficiency.
       2. Recognizing tort would add to existing tension between the First
       Amendment and the law of torts

Defenses: Plaintiff is not identified (like libel defense)
                  Truth (like Libel)
                  Public figure plaintiff’s must prove Fault, usually Actual Malice (like Libel)

       (Tort of Newsgathering)

       Elements of Intrusion: One who intentionally intrudes, physically or otherwise,
             upon the solitude or seclusion of another or his private affairs or concerns, is
             subject to liability for invasion of his privacy, if the intrusion would be highly
             offensive to the reasonable person. (Restatement of Torts, Privacy Chap NC Med
             Hndk, pg.58)

       def: A highly offensive physical, electronic or mechanical invasion or another’s
              solitude. (txt: pgs. 192-193) Whether an act intrudes upon anothers’ privacy
              depends on whether that person has a reasonable expectation of privacy…..The
              more public the surroundings the less a person enjoys a reasonable expectation of

       People in public and quasi-public places must assume they might be photographed or
       recorded…especially if they are public officials carrying out public duties. (Hnbk. Pg.

       Private Places: The 4th amendment protects individuals from government
       monitoring without a warrant. Private citizens are barred from bugging,
wiretapping, and eavesdropping on people in private places. This is called Third
Party Monitoring.

N.C. Bugging, wiretapping, and eavesdropping (3rd Party) of telephone
conversations are illegal under N.C. and federal statutes. The federal law makes it
illegal traditional phone conversations, cell phones, e-mail, and satellite
communications. (hnbk. Pg.60.)

       Participant Monitoring: When one participant in a conversation is secretly
       recording it. N.C. AND Federal Law permits one party to record or transmit a
       conversation without telling the other party unless it is being recorded for the
       purpose of committing a crime or tort (like blackmail). State Laws: 38 states
       allow participant recording while 12 prohibit participant tape recording.
       Regardless of Federal or State statutes, secret recording by a participant to a
       conversation may be an intrusion if subterfuge is used to bring electronic
       eavesdropping equipment into a private place, such as a home. (Dietemann v.
       Time) (txt. Page 200)

There are three types of intrusion:
1.    Trespassing: Going onto Private Property without the consent of the
      owner. Usually requires a physical invasion of someone’s property. (txt.
      Pg. 201) Violation is in invasion itself, not in the subsequent Broadcast.
      -Court decisions in these cases are not consistent and outcomes
      rely on the specific facts of the case. (Hndbk. Priv. pg. 10)

2.     Surveillance: Eavesdropping, using telephoto lenses or hidden tape
       recorders, hounding people.

3.     Overstepping or exceeding any implied or express consent.

Dietemann v. Time (1971) FA does not give journalists immunity from torts committed
while gathering news…It is not a license to trespass or intrude by electronic        means
into the precincts of another’s home or office.
Galella v. Onassis (1982) (not instrusion so much as overzealous
A Federal District Court held that the essence of the privacy
interest in a general right of people to be left alone. Aggressive
journalism can cross over to illegal harassment.
Food Lion v. Capital Cities/ABC (1999)
Two reporters were liable for trespassing into non-public areas of the Food Lion Store
under false pretenses, fraudulently concealing their identities on job applications, and
legal duty of loyalty to their employer. The court ruled the reporters were guilty of
trespass because they exceeded their scope of permission and duty of loyalty by filming
in non-public areas.
       Florida Publishing Co. v. Fletcher (1976)
       (accompanying officials) The Florida Supreme Court ruled that the photographer did not
       trespass because he was invited into the home by a member of the fire department, a
       practice so common that it assumes an implied consent. The act is so customary that the
       court recognizes a privilege for such entries, a privilege in “customs and usage”. NOTE:
       (text. Pg. 202) the influence of this case is limited primarily to Florida in cases dealing
       with disasters (fires &hurricanes etc.). Most other courts have rejected that journalists
       are not liable for trespass or intrusion when accompanying officials into private domains
       absent an emergency. (text. Pg. 203)
       Le Mistral v. CBS (1978) (exceeding the scope of express or implied consent) The Court
       ruled the camera crew was unnecessarily intrusive because it entered without any
       intention of purchasing food and had unreasonably disrupted the business and its
       patrons. (Hnbk. Priv. pg,13)

Defenses:      Consent

Intentional Infliction of Emotional Distress
       Def: In order to prevail in a suit claiming intentional infliction of emotional distress a
       plaintiff must show these three things:
       1.      extreme and outrageous conduct
       2.      which is intended to cause and does cause
       3.      severe emotional distress to another (Hnbk, Priv. 18)

       Injury: The victim suffers rather ill-defined, subjective mental anguish and
       emotional upset. The victim may also suffer tangible damages such as ulcers and
       lost wages.

       Falwell v. Hustler (1988)
       U.S. Supreme Court ruled the First Amendment imposes constitutional limits on
       emotional distress claims brought by public officials and public figures.

Newsgathering Torts

NOTE: The media have First Amendment protection against Publication Torts (libel, false light
invasion of privacy, and intentional infliction of emotional distress) but there is NO F.A.
Protection (except for the right to cover court proceedings) against Newsgathering Torts. There
is no constitutional right to gather news.

       Def: Since 1980 plaintiffs sue under Newsgathering Torts rather the Publication       Torts
       so they can avoid having to prove Actual Malice

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