Plopper Assignment: Chapter 4
Optional Middleton Assignment: Chapter 4
Class Web Page: Libel and Privacy Compared
I -- Privacy is often defined as "The right to be left alone. "
II -- Four areas of invasion of privacy for MEDIA law:
1. Private Facts publication
2. Intrusion
3. False Light
4. Appropriation
III -- PRIVATE FACTS
Those when published:
1) would be highly offensive to a reasonable person
2) not of legitimate concern to the public
A. Distinctions from Libel: See the comparison.
Privacy plaintiff sues for shame, humiliation, mental anguish
Harder than proving damage to reputation
Privacy suit may be brought for TRUTHFUL, nondefamatory publication
Publication means widespread publication, not just to a third person. It is a tort of publicity
B. Most successful suits involve publication about illness, hospitalization, retardation, exposure of intimate body parts
C. Defenses
1. Already in public domain: Info generally safe if from public records or already known.
2. First Amendment -- newsworthy and legally obtained from the government (See D.)
3. Newsworthiness
4. Consent
5. Qualified privilege
D. Rape victims' names cases -- Supreme Court heard both cases.
Cox v. Cohn (1975) -- Reporter got name from court record.
Florida Star v. B.J.F. (1989) -- Reporter got name from deputy sheriff
In each case, the state had a law against using a rape victim's name in the news. Sct struck both laws, ruling:
1. Must balance on a case-by-case basis
2. Statute must be narrowly tailored
IV -- FALSE LIGHT
Highly offensive false publicity about someone, with actual malice. False light has much in common with libel.
See comparison.
A. Time v. Hill (1967) -- ALL false light plaintiffs must prove actual malice.
B. The false light claim must be believable.
Peoples Bank & Trust Co. v. Globe , Inc., an Arkansas case.
Nellie Mitchell: "Worlds' oldest newspaper carrier, 101, quits because she's pregnant."
Even if readers could not reasonably believe that she could be pregnant, they could reasonably believe that she was sexually promiscuous.
V -- INTRUSION
"Highly intrusive physical, electronic or mechanical invasion of another's solitude or seclusion"
A. Threshold question is: Does the person have a reasonable expectation of privacy?
If conduct can be readily seen from a public place, no reasonable expectation of privacy.
* police publicly frisking a suspect
* taking a picture of private property from public sidewalk
* recording and photographing what reporters can easily see or
overhear in the public sections of jails
B. Some problem areas:
* secretly recorded conversation
* long-distance photograph with telephoto lens
* someone crouching below a window
* opening someone else's mail
* taping telephones
C. Unlike other privacy torts: Intrusion is a tort of newsgathering, not of dissemination, so journalists can be punished regardless of what they learn or of whether they publish it or not.
D. Recording:
1. Third-party phone tapping: (without knowledge of either party) Only law enforcement agencies can do it legally, with valid search warrant.
2. Participant monitoring of phone calls -- (when one party knows it's being recorded) OK in Arkansas, but not all states.
3. BUT broadcasters must notify caller immediately if phone conversation is being recorded for broadcast.
E. Trespass
Physical invasion without consent.
1. Once a journalist enters, implied consent to remain if property owner or tenant agrees to talk.
2. Become trespasser if refuses to leave when asked, or misrepresent themselves or fail to identify themselves as reporters.
Doesn't mean the police can confiscate photographs/video unless it is evidence of a crime (trespass).
F. Access to Places in Arkansas
Generally, journalists have no more rights of access to places than any other citizen. However, an Arkansas law gives some access privileges:
Arkansas Code Annotated (5-71-206)
Following a section explaining that it is a crime to fail to disperse during a riot or unlawful assembly when ordered to do so by a law enforcement officer:
"It is a defense to a prosecution under this section that the actor was a news reporter or other person observing or recording the events on behalf of the news media not knowingly obstructing efforts by a law enforcement officer or other person engaged in enforcing or executing the law to control or abate the riot or unlawful assembly."
Arkansas law protects citizens from "physical harrasment, surveillance, annoyance and physical abuse."
Exceptions to Arkansas FOI protect privacy
1999: Arkansas passed a statute making video voyeurism a crime.
VI -- APPROPRIATION
1. Use of another's name, picture or likeness
2. without his/her permission
3. for commercial purposes.
A. Protects two types of plaintiffs
1. from shame and humiliation (more like false light or private facts)
2. from loss of publicity value (more like copyright)
B. Defenses to Appropriation
1. Newsworthiness
2. Consent
3. Incidental advertising: Publishers and broadcasters promoting themselves. Does not imply person has endorsed the publication
VII -- Other Torts Affecting Newsgathering
A. Negligent publishing -- resulting in personal injury
1. Media are not liable for physical or financial harm their programs and stories may precede.
2. Braun v. Soldier of Fortune Magazine: Publisher can be held liable only if an advertisement on its face, without further investigation, would alert a reasonably prudent publisher to the unreasonable risk.
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B. OUTRAGE and other attempts to make an end run around NYT
1. Outrage: conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Tort of "outrage."
2. Hustler Magazine v. Falwell -- public plaintiffs must prove actual malice under outrage tort.
VIII -- Fraud, misrepresentation
1. Food Lion v. ABC -- Food Lion sued ABC over a 1992 PrimeTime Live story saying the supermarket served bad meat and other foods. Supermarket never claimed any false reporting, sued over reporting techniques. Court applied Hustler to reduce jury's award to ABC.
Jury awarded $5.5 in punitive damages and $1,402 in compensatory damages. Judge reduced the punitives to $315,000.
Fourth Circuit Court of Appeals ruling threw out the $315,000 judgment.
Food Lion sued for
Take note of the line of cases that shows how the Supreme Court consistently required the plaintiff to prove actual malice regardless of the tort. While only public libel and outrage plaintiffs have to prove actual malice, all plainitiffs in false light must prove it.