Privacy Lawfor Copy Editors

By Arati Bechtel

Privacy

“The right to be left alone” Four types (or torts) of invasion of

privacy: Private facts Intrusion Appropriation False light

Private Facts

Publication of non-newsworthy, private facts that would be highly offensive to a reasonable person.

Examples: details about medical, psychological condition or treatment

Private Facts

Important notes for news media: If they’re newsworthy, you can report

private facts. Anything in a public record, proceeding,

place or event isn’t usually private. This type of privacy violation is not

recognized in all states, such as North Carolina.

Is it an invasion of privacy under the private facts tort?

…to write that Robert Downey Jr. was addicted to drugs?

…to write that Terri Hatcher is an incest survivor? …that Rosie O’Donnell is a lesbian?

Images & Privacy: Barber Case

Time magazine took a picture of Dorothy Barber in the hospital without permission and wrote about her unusual eating disorder that caused her to lose weight despite eating a lot of food, calling her “the starving glutton.”

This was invasion of privacy.

Images & Privacy: Bridges Case

Images & Privacy: Bridges Case

In 1982, a Florida newspaper published a photo of a nude woman holding a small towel over her front and fleeing an apartment with a police officer. The woman’s estranged husband had held her hostage and then committed suicide.

Court said the picture told a newsworthy story that took place in public.

Intrusion

Highly intrusive physical, electronic or mechanical invasion of a person’s solitude or seclusion.

Privacy violation occurs at the time of newsgathering, not publication.

Intrusion

Example: using a hidden camera in someone’s home without permission; breaking into voice mail or e-mail

Important question to ask: Does the person have a reasonable expectation of privacy in this particular place or area?

Another one: Did the journalist use deception to gain access?

Common Custom

It used to be that news media could go into private places (with officials) if it was common custom to do so in that state.

Fletcher v. Florida Publishing

A teenager was killed in a house fire. A Florida Times-Union photographer took this photo while accompanying fire officials at the private home.

Common Custom is Uncommon

The rule now is that news media may not accompany officials on raids and other official duties on private property without consent of property owners.

Cincinnati Enquirer

In 1998, the Enquirer fired a reporter for using “unethical or illegal” means of accessing voice mail for a series of stories on the Chiquita company’s business practices.

However, if someone else steals voice mail, intercepts cell phone call, etc., and shares it with a journalist, the media wouldn’t be liable for intrusion.

Shulman v. Group W (1998)

Cameraman for “On Scene: Emergency Response” taped scene of auto accident and then followed victims on board a rescue helicopter.

Shulman v. Group W (1998)

Court said: Accident occurred on public highway, so victims had no reasonable expectation of privacy at accident scene.

But they did have a reasonable expectation of privacy on the helicopter.

Expectation of Privacy

Do you have a reasonable expectation of privacy in your office?

… in your car? … in your living room? … in your bathroom? … in your back yard?

Images & Privacy: Barbra’s case

Californiacoastline.org published an aerial photo of Barbra Streisand’s property in Malibu, labeled “Streisand Estate, Malibu.”

Barbra’s case

Streisand sued for $50 million in May 2003 under private facts and intrusion, among other torts.

Suit dismissed in December 2003.

Appropriation

Use of a person’s name, likeness or identity for trade or advertising purposes without consent.

Example: using a news photo in an ad, as in LSU student newspaper.

This is the oldest of the privacy torts.

Not usually relevant for professional news media.

Appropriation

What is a trade or advertising use? Ads Products, such as T-shirts, posters, mugs

News, History Exemptions

What about news, history, etc? Using an individual’s name or picture in a news

story, work of history, biography or other factual use is NOT a commercial use.

“Incidental use” — Using an individual’s name or photo to promote a news use is not commercial use unless the promotion implies the individual endorses the publication.

Images & Privacy: Tonya

In 2002, a company was selling bottles of Tonya Hot Sauce that featured a cartoon of Tonya Harding and said, “Guaranteed to assault your taste buds!” and “not for the weak kneed!”

Is this appropriation?

False Light

Publication of false and highly offensive information about a person.

Example: using a photo out of context so that it distorts the truth.

False Light

Not recognized in all states, including North Carolina, partly because it’s too similar to libel.

If story involves public figure or public official, plaintiff has to prove actual malice.

Images & False Light

Sat. Evening Post used newspaper photo of a child hit by a car (through no fault of her own) with story on pedestrian carelessness – distortion.

False Light Avoided

“Police had used surveillance video during our ‘Mardi Gras Riots’ to arrest several rowdies. 

“We had an A1 above-the-fold refer, which was part of a frame grab from the video showing a man drinking beer. The headline said something like ‘Police use video to make arrests,’ but that man was not a suspect.

False Light Avoided

“I was proofing the page, and we were able to rewrite the hed to avoid characterizing the man as a drunk, disorderly criminal.”

Pop Quiz

During collective-bargaining negotiations between a teachers’ union and the local school board, an unidentified person intercepted and recorded a cell phone conversation between the chief union negotiator and the union president. The negotiator suggested shooting off the front porches of school board members’ houses if they didn’t agree to sufficient raises.

Pop Quiz

A tape of the call made its way to local newspapers, which published transcripts. Is the publication of transcripts an intrusion by the newspapers?

Final Exercise: Privacy & Libel

A people item comes over the AP wire: E!Online reports that Britney Spears feeds her child Coca-Cola instead of milk.

It explains that paparazzi hiding in trees adjacent to her house captured images of Spears’ recycling bin filled with empty Coke cans and her son’s bottle filled with a dark liquid.

Final Exercise: Privacy & Libel

Britney’s rep says it’s not true, though the baby does like the taste of Coca-Cola.

A former nanny says it’s true.

Final Exercise: Libel

You consider publishing this brief. Analyze this hypothetical for libel problems for your paper: Is it defamatory to say Britney feeds her baby Coke? Can she be injured by this statement? Would Spears have to prove falsity? What type of plaintiff is Spears? Would she be able to prove fault? How solid are the

sources?

Final Exercise: Privacy

Analyze this hypothetical for privacy problems for your paper: If she does feed the baby Coke sometimes: Is it

publication of private facts to report it? If she doesn’t feed the baby Coke: Does the

brief potentially place Spears in a false light? What other privacy tort may be involved?

Questions?

What questions do you have? Any comments?