5. Privacy

What happens when an out-of-context video clip puts a person in a “false light?” What if the clip itself is accurate, but the editing is done in a way that it leads to a false conclusion?

This is essentially what happened to Shirley Sherrod in 2011.  Sherrod, who was then a USDA employee, gave a speech on her experiences in rural development to a regional NAACP chapter. A recording of the speech became the subject of a national controversy over alleged racism by African Americans.

In July 2010, Andrew Brietbart, a right – wing blogger, distributed an edited version of the speech that used Mrs. Sherrod’s own words in a way that was (Sherrod alleged) contrary to the meaning and context of the speech itself. In fact, Sherrod was talking about a moment when she was tempted to do the wrong thing and ended up doing the right thing.  Brietbart, essentially, had her talking about doing the wrong thing.

Sherrod filed a defamation lawsuit Feb. 11, 2011 in a US District Court which was essentially a “false light” claim.  False light is one of four areas of privacy law.

Other kinds of privacy laws cover misappropriation, intrusion, and publication of private facts, as we’ll see below.

 

Privacy is a right that has been recognized only recently in the 20th Century.

Privacy laws are an attempt to distinguish between the public sphere of life and the private or personal sphere. Unlike defamation laws, privacy laws tend to vary from state to state and from situation to situation.

Privacy rights involve both personal rights, such as the right to a good reputation, and property rights, such as the right to avoid trespass or to control the way your own picture is used by others for advertising.

History:

The call for privacy laws in the US came from a 1890 Harvard Law Review article by Louis Brandeis (who later became a US Supreme Court judge). Brandeis noted that England and France had a variety of laws protecting privacy and thought that the US should adopt similar laws. He argued that a right to privacy does not prohibit publication of matters in the public interest, but should protect private people from becoming “victims of journalistic enterprise.” Although truth would be a defense in libel, Brandeis wrote, truth or falsehood is not the issue. “The right of privacy implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all,” he said.

This privacy principle was already part of common law, Brandeis argued, but had become more urgent with the intrusiveness of the yellow press and the arrival of new technology.

An example of the way new technologies were challenging the law involved a 1902 case, Roberson v. Rochester Folding Box Co. Printing photographs had only recently become possible with the new halftone proces, and the box company used a picture of Abby Roberson on a box of baking flour without her permission.  

In a lawsuit the family claimed the incident caused Ms. Roberson severe embarrassment and humiliation, but according to the N.Y. Court of Appeals, there was no law against the use of her likeness in advertising. Outrage ove the case led to the passage of new laws in many states, and a similar case occurred in Georgia two years later when New England Life Insurance Co. used a person’s name to sell insurance without permission. (Pavesich v. New England Life, 1905). In that case, the state supreme court said there was a common law right of privacy that had been violated by the commercial use of someone’s identity.

More of the kind of protection Brandies sought for private people began to emerge in some state laws and with the increasing concern
for personal rights in the 1960s, for example, with a Connecticut case in which distribution of contraceptive information by a doctor to a married couple was seen as protected by the couple’s privacy rights. In Roe v. Wade, the Supreme Court said the privacy right extended to the right to decide when to conceive children or even to have an abortion. (Since these cases are not media – related, we will not go into them here).

It’s important to note that the courts have generally  interpreted privacy law very strictly in terms of the media, and have leaned towards defending the freedom of the news media to publish information of public importance. Even in cases where private people are thrust against their will into the public spotlight, such as Howard and Sipple (below), invasion of privacy suits are often decided in favor of the news media.

This does not mean, however, that what is legal is the same thing as what is ethical. Under the Society of Professional Journalists and Public Relations Society of America codes of ethics, respect for privacy is an important element of ethical behavior.

In advertising, a lack of respect for privacy and a misunderstanding of the law in this area can be very expensive.

Ethics professor Deni Elliot noted in a 1991 article about Oliver Sipple, for example, that the news media “should be no one’s conscience.” The media’s focus on Sipple’s sexuality “contributed to the stereotype that there is something unusual about a man who is both heroic and homosexual.”

Similarly, the identification of a rape victim by a Georgia broadcaster, based on information lawfully obtained from public records, wasnt invasion of privacy according to the courts in Cox v. Cohn. However, identifying rape victims or witnesses to crime in the media is often a serious breech of ethics.

Privacy issues are usually considered in four areas under a list developed by Prof. William Prosser in 1960:

  • False Light — This is very much like libel, although covers instances where direct defamation has not occurred. Usually the Sullivan standard applies  (knowledge of falsity or reckless disregard for the truth) as well as a standard that says the publication or broadcast is highly offensive to a reasonable person.
  • Misappropriationof a person’s name or likeness (picture) — This is often similar to copyright or intellectual property cases
    • For private people, misappropriation may be called “commercialization”
    • For celebrities, misappropriation cases involve a “right of publicity”
  • Intrusion on a person’s right to seclusion and personal privacy;  Media cases usually involve physical intrusion by news media, often with cameras or recording devices, into the lives of celebrities and  private people
  • Publication of Private Facts or unreasonable revelation
    of private facts that may be true but nevertheless embarrassing to private people
  • Intentional infliction of emotional distress — In some states, such as Virginia, a fifth tort area, “intentional infliction of emotional distress,”  is sometimes used in place of false light, intrusion and publication of private facts. However, as the courts noted in Flynt v Falwell, this is not a substitute for defamation.

Defenses against privacy lawsuits:

  • Newsworthiness, or public interest (for editorial content, mostly in misappropriation and false light cases)
  • Public record, a Constitutional defense similar to privilege  (especially in regard to revealing names of private people in court cases)
  • Consent of private individual involved (eg, signed release of a model to appear in an advertisement)

False light

False light is a close cousin to libel and it involves questions of reputation and statements that might be highly offensive to a reasonable person. It also has to satisfy the Sullivan test for actual malice.

People’s Bank and Nellie Mitchell v. Globe International Publishing, 1992 — When photos of an elderly woman ran in the National Examiner in 1980, the story about her 50 years of service delivering newspapers was accurate, and Nellie Mitchell did not object. Ten years later, when the same photos ran next to  a fictional story about an elderly woman who had to quit her paper route because she became pregnant, Mitchell’s estate (the People’s Bank) sued on behalf of Mitchell under false light and won. While the story never mentioned Mitchell by name, the clear implication from the placement of photos was that this was the elderly woman who became pregnant.

Bobby Seale v. Grammercy Pictures Inc., 1998 — Bobby Seale was a famous Black Panther in the 1960s and the Panthers were the subject of a Gramercy Pictures “docu-drama.” Seale objected to a characterization of a conversation with another Panther (Eldridge Cleaver) and sued unsuccessfully under the legal theory of false light. Seale was a public figure and the actual malice standard was applied as it would have been in a libel case.

Cantrell v. Forest City Publishing Co 1974 — A reporter pretended to have interviewed widow of man killed in a West Virginia bridge collapse, describing her face and talking about her courage in refusing charity, and yet had never bothered to interview her. The court said he had acted with malice, that is, knowingly publishing something false.

Time v. Hill 1967, Time magazine published a story about a play based on a true story in which prison escapees had taken a family hostage.  The events had occurred some 15 years beforehand. In the story there were a few inaccuracies, such as the idea that hostage takers had roughed up the Hill family and made sexual slurs. The family felt their privacy had been invaded. Judge Brennan said that “breathing room” for the First Amendment meant the need to tolerate some level of inaccuracy as much in reporting on a drama as in other political reporting. The family would
have to prove actual malice, thus their status was something like that of an involuntary public figure in a libel suit.

Publicationof private facts

Like false light, lawsuits over publication of private facts also relate to a personal right of privacy. The private facts usually have to be embarrassing — just slipping on a banana peel is not enough — but they don’t have to involve illegal or moral issues. The publication of facts concerning a person’s financial records, medical information or domestic difficulties have been held to be embarrassing enough to cause damages. Of course, lawsuits involving private facts can’t involve facts that have already been made public. And yet, in one 1931 case, the facts were considered to be so embarrassing that the courts found for the plaintiff. This involved a lawsuit over the feminist film, the Red Kimona.

Melvin v. Reid, 1931, The “Red Kimona” was written and produced by Dorothy Davenport Reid, a feminist filmmaker during the silent movie period. It presented what it said was the true story of a former prostitute Gabrielle Darley who was charged with murder and found innocent.  In 1918, Darley married a high society figure from St. Louis, Mr. Bernard Melvin and she abandoned her old life. When the Red Kimona movie came out in 1925, Mrs. Melvin (Darley) sued for $50,000 and won in California court.

The movie producers argued that all the facts of the case were true and open in court records. The court said: “Any person living a life of rectitude has that right to happiness which includes a freedom from unnecessary attacks on his character, social standing, or reputation.” Today, this case would have been decided rather differently. Information in open court records is privileged, as noted in Cox v Cohn and Smith v Daily Mail cases.

Sidis v. F.R. Publishing,1940 — A mathematical genius and Harvard grad at age 16, Sidis was found 20 years later working as a clerk.The New Yorker magazine wrote an article under the headline: “Where Are They Now? April Fool!” Sidis sued for invasion of privacy but lost. NY federal appeals court said someone who had become a celebrity even involuntarily could not avoid all publicity  later on. The key question was newsworthiness or public interest. “Regrettably or not, the misfortunes and frailties of neighbors and public figures are subjects of considerable interest and discussion to the rest of the population.”

** Cox. v. Cohn, 1975, The identification of a sexual assault victim by a Georgia broadcaster from information lawfully obtained from public records wasn’t invasion of privacy, the courts said.   (However, identifying sexual assault victims in the media, without consent,  is usually a serious breech of ethics).

** Smith v. Daily Mail, 1979, W.Va. law prohibiting publication of a juvenile named as a murder suspect, struck down. Criminal prosecution of the media is not the appropriate way to prevent dissemination of names of juvenile offenders. It is permissible for a state to keep information secret, but if media obtain information lawfully, they can publish without fear of prosecution.

** Howard v. Des Moines Register, 1979, A person was identified as a victim of forced sterilization in county mental facility. Court said it was a good example of investigative journalism and was the subject of grave public interest. This is an example of the leeway courts allow legitimate news articles.

** Sipple v. Chronicle Publishing, 1984, After Oliver Sipple  prevented the assassination of Gerald Ford, his past as a gay activist became part of the story of his heroism. He sued the San Francisco Chronicle for revealing details of his private life, but lost because he had become a public figure and questions about his character were deemed newsworthy. The court said — “There can be no privacy with respect to a matter which is already public or which has previously become part of the ‘public domain.’  Once the information is released, unlike a physical object, it cannot be recaptured and sealed.”

Anonymous comments

A judge in Cleveland OH filed suit for $50 million against the Cleveland Plain Dealer newspaper in April, 2010 for invasion of privacy after the paper revealed that she (or someone in her family) made anonymous comments about a lawyer appearing before her in a legal case. The case came at a time when newspapers were rethinking the policy of allowing anonymous online comments.

Misappropriation

Commercialization — These cases usually involve private people whose names, likenesses or other identifying characteristics were used without their permission.

Roberson v. Rochester Folding Box Co., 1902 — (mentioned above); this case came before state laws against misappropriation

Polydoros v. Twentieth Century Fox Film Corp., 1997 – Michael Polydoros was a childhood friend of David Evans. When Evans wrote the movie The Sandlot, Polydoros claimed that he was the fictional character Michael “Squints” Palledorous in the movie and sued for misappropriation of identity and invasion of privacy. (Further commentary by Rochelle Wilcox) The courts sided with Evans, noting: “It is generally understood that novels are written out of the background and experiences of the novelist. The characters portrayed are fictional, but very often they grow out of real persons the author has met or observed …

Frazier v. Boomsma, 2007 — Anti-war activist Dan Frazier used the names of 3,461 soldiers who had died in Iraq as the background of a t-shirt with “Bush Lied” in large type. Although some states prohibit the use of soldiers names for commercial purposes, a federal court held that this was protected political expression.

Right of publicity – These cases usually involve celebrities whose names, likenesses, songs or other identifying characteristics were used without their permission. Singers Tom Waits and Bette Middler have sued when sound-alike songs were used without their permission. The use of look-alike actors can also be a problem, for example, in a case involving a Woody Allen look-alike used to advertise a video store.

Schwarzenegger v. Ohio Discount Merchandise, 2004 — Although settled out of court, this case over a “bobbin” doll raises an interesting issue. When a celebrity becomes a politician, do efforts to control publicity infringe on the First Amendment?

Carson v. Here’s Johnny, 1976 — Carson sued after a portable toilet manufacturer used his introductory slogan, “Here’s Johnny” to advertise his toilets. Similar cases included Middler v. Ford Motor Co. (9th Cir. 1988), which involved singer Bette Midler. She refused to do an ad for Ford, and the ad agency hired one of her backup singers to sing one of Middler’s songs in her voice. Middler won the case. In another similar case, Vanna White v. Samsung Electronics of America, Inc., the electronics manufacturer had a blonde robot flipping cards on a game show. White said it was her likeness and won the suit.

** Zacchini v. Scripps Howard Broadcasting 1977 — A TV station broadcast a “human cannonball’s” entire act, against his objections, and the US Supreme Court rejected the TV station’s newsworthyness defense. The court said the broadcast deprived him of the economic value of his performance. This ruling is similar to copyright rulings where partial excerpts for reviews might be permitted under fair use, but a complete reprinting or rebroadcasting of some material would be copyright infringement.

Intrusion

Intrusion cases involve media news-gathering, when hidden cameras or deception are involved. To win an intrusion suit, a plaintiff must prove that the media acted in a way that a reasonable person would find highly offensive. This is one of the most difficult areas to define since there is often no absolute expectation of privacy. There have been a number of instances in which reporters have gone undercover to investigate matters of public interest. Nelly Bly’s investigation of the Bedloe Island women’s asylum in 1888 is one early example.

** Wilson v. Layne, 1999 — The case  that banned “ride-alongs.” Police invited a Washington Post photographer  to accompany them on a search warrant raid in 1992. Police were looking for the son of a Montgomery County, Maryland couple, but instead subdued the couple in the early morning hours. After being photographed in this more or less embarrassing situation, the couple sued for invasion of privacy. (The story behind the case …from Forensic-evidence.com). The Supreme Court said that the police could not have predicted what course Constitutional law would take in this complex situation and were therefore not liable for damages. But the court also said that from that point forward ride-alongs could violate privacy.

Dietmann v. Time, 1971, Life magazine Crackdown on Quackery
article, court ruled that indeed use of hidden electronic recording equipment by news media was invasion of privacy.

Galella v. Onassis, 1973 — Jackie Kennedy Onassis obtained a court injunction against New York photographer Ron Galella, forcing him to stay 25 feet away from her and even further away from the children.

Bartnicki v. Vopper, 2001 — A radio station DJ played a recording of an illegally intercepted cell phone call. The radio DJ said it was newsworthy and the court agreed that matters of public interest have a First Amendment shield even if the information was obtained illegally by a third party.

Privacy and photography:

According to the Reporter’s Committee for Freedom of the Press,  Guide to Privacy for Journalists

The pursuit and publication of images can expose journalists to crushing financial liability if a court determines that the news organization has invaded a persons privacy.”

While the First Amendment places some limits on the application of privacy law to the media, “it does not, however, immunize the media completely.” Photographers and journalists must know the law in their jurisdiction and how it balances the competing interests of the press and the public against the privacy interests of individuals.

* Generally, any person or thing that can be seen from a public vantage point can be used for news purposes by journalists and printed in newspapers or broadcast on TV. If there are people in the background of a news photo, they have no particular right to privacy. However, photos or video taken for commercial purposes, or for films, have to involve the consent of everyone who is identifiable.

* Even if people are photographed in public, beware of the context in which the picture is placed (such as an innocuous photo of recognizable teen-agers in a story about the rise of teen violence). Use caution when utilizing file footage or photographs to illustrate negative stories. Special effects can be used to render the subjects unidentifiable.

* Anything to be used in a commercial context, whether it is a photo taken in public or in private, must have consent, usually in the form of a model release.

* Consent must be obtained from someone who can validly give it. For example, permission from a child or mentally handicapped person may not be valid, and a tenant may not be authorized to permit photographs of parts of the building not rented by the tenant.

* Consent to enter a home may not be consent to photograph it. Consent exceeded can be the same as no consent at all.

* Although oral consent may protect the press from liability for invasion of privacy, written consent is more likely to foreclose the possibility of a lawsuit. However, a subjects subsequent withdrawal of consent does not bar the publication of the photograph. It simply means that the journalist may not assert consent as a defense if the subject later files suit.

* Permission from a police department to accompany officers who legally enter private property may not immunize journalists from invasion of privacy suits. In most states, authorities may deny photographers access to crime scenes and disaster areas. (Note: See Wilson v. Layne above)

* Public officials and public figures, and people who become involved in events of public interest, have less right to privacy than do private persons.

* In some states, using hidden cameras, or audiotaping people without their consent, may invite criminal or civil penalties. (Note: Virginia laws are less strict than Maryland, and for that reason, the Monica Lewinski tapes were made in Virginia).

* A photograph may intrude into a persons seclusion without being published. Intrusion can occur as soon as the image is taken. (Or even before, as in the Galella case).

Also see Freedom of Photography

Also see Washington DC Policy policy permitting photos of police activities

LOCAL INTEREST

Virginia state law recognizes “misappropriation”

¤ 8.01-40. Unauthorized use of name or picture of any person; exemplary damages; statute of limitations. A. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait  or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages. B. No action shall be commenced under this section more than twenty years after the death of such person.

Only one recent Virgnia case has tested the misappropriation law: The publication of a photograph of a prisoner sleeping in his cell was protected from a claim for invasion of privacy under the federal Civil Rights Act because prisoners surrender most aspects of their right to privacy while incarcerated. Jenkins v. Winchester, 8 Med. L. Rptr. 1403 (W.D. Va. 1981). Source: RCFP.

Virginia state law also recognizes “intentional  infliction of emotional distress”

The state supreme court first recognized the tort of intentional infliction
of emotional distress in Womack v. Eldridge, 215 Va. 338, (1974). The court said that a plaintiff may recover damages for emotional distress resulting from a non-tactile tort if he alleges andproves by clear and convincing evidence that: (1) the wrongdoer’s conduct is intentional or reckless; (2) the conduct is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected;  and (4) the resulting distress is severe. (As noted in McDermott v. Reynolds, 2000)