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A closer look at privacy. How Brandeis’s theories have affected media law. Four types of privacy law. Four types of privacy law. Commercial appropriation of name or likeness. Four types of privacy law. Commercial appropriation of name or likeness
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A closer look at privacy How Brandeis’s theorieshave affected media law
Four types of privacy law • Commercial appropriation of name or likeness
Four types of privacy law • Commercial appropriation of name or likeness • Public disclosure of embarrassing private facts
Four types of privacy law • Commercial appropriation of name or likeness • Public disclosure of embarrassing private facts • False light
Four types of privacy law • Commercial appropriation of name or likeness • Public disclosure of embarrassing private facts • False light • Intrusion upon physical seclusion
Appropriation • Dustin Hoffman case shows there can be a fine line between commercial and editorial use
Appropriation • Dustin Hoffman case shows there can be a fine line between commercial and editorial use • A magazine cover may not be protected if it doesn’t pertain to contents
Protected “Bush, Cheney, and Rumsfeld”
Protected • But is Warhol’s art truly transformative?
Disclosure of private facts • Embarrassing private facts
Disclosure of private facts • Embarrassing private facts • Not newsworthy
Disclosure of private facts • Embarrassing private facts • Not newsworthy • Highly offensive
Disclosure of private facts • Embarrassing private facts • Not newsworthy • Highly offensive • To a reasonable person
False light • “Libel Jr.”
False light • “Libel Jr.” • Individual represented in a false and highly offensive manner before the public
False light • “Libel Jr.” • Individual represented in a false and highly offensive manner before the public • Unlike libel, false-light claims seek compensation for personal anguish and embarrassment
Intrusion • Intentional invasion
Intrusion • Intentional invasion • Of a person’s physical seclusion or private affairs
Intrusion • Intentional invasion • Of a person’s physical seclusion or private affairs • In a manner that would be highly offensive
Intrusion • Intentional invasion • Of a person’s physical seclusion or private affairs • In a manner that would be highly offensive • To a reasonable person
Newsgatheringand publication • Intrusion pertains solely to newsgathering
Newsgatheringand publication • Intrusion pertains solely to newsgathering • Similar to trespassing — Miller v. National Broadcasting Co.
Newsgatheringand publication • Intrusion pertains solely to newsgathering • Similar to trespassing — Miller v. National Broadcasting Co. • Material improperly gathered may often be published or broadcast — Shulman v. Group W
Other privacy torts • Fraud • Food Lion v. ABC
Other privacy torts • Fraud • Food Lion v. ABC • Emotional distress • Hustler Magazine v. Falwell
Other privacy torts • Fraud • Food Lion v. ABC • Emotional distress • Hustler Magazine v. Falwell • Outrage • Armstrong v. H&C Communications
Other privacy torts • Fraud • Food Lion v. ABC • Emotional distress • Hustler Magazine v. Falwell • Outrage • Armstrong v. H&C Communications • Wiretapping • One-party states and two-party states
Hoffman v. Capital Cities/ABC • Los Angeles Magazine “crossed the line” between editorial and commercial use
Hoffman v. Capital Cities/ABC • Los Angeles Magazine “crossed the line” between editorial and commercial use • A reasonable decision? Or is the judge playing editor?
McNamara v. Freedom Newspapers • Soccer player photographed with genitals exposed
McNamara v. Freedom Newspapers • Soccer player photographed with genitals exposed • Judge Benavides: “[A] factually accurate public disclosure is not tortious when connected with a newsworthy event”
McNamara v. Freedom Newspapers • Soccer player photographed with genitals exposed • Judge Benavides: “[A] factually accurate public disclosure is not tortious when connected with a newsworthy event” • Parallels to Dustin Hoffman case?
The Florida Star v. B.J.F. • Highlights difference between ethics and the law • The Florida Star’s own ethics policy was violated by publishing name • Victim suffered serious harm from Star’s actions
The Florida Star v. B.J.F. • Highlights difference between ethics and the law • Media cannot be punished for naming rape victims and juveniles • Cox Broadcasting Corp. v. Cohn (1975) • Oklahoma Publishing Co. v. District Court (1977) • Smith v. Daily Mail Publishing (1979)
The Florida Star v. B.J.F. • Highlights difference between ethics and the law • Media cannot be punished for naming rape victims and juvenile • Marshall’s three grounds • Information was lawfully obtained • Information was publicly available • “Timidity and self-censorship” could result
Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? Three-part test • Social value of facts published • Depth of intrusion into private affairs • Extent to which person voluntarily courted notoriety
Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? • Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor”
Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? • Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor” • Entirely true story about the president of a college’s student body
Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? • Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor” • Entirely true story about the president of a college’s student body • Is Judge Barry-Deal playing editor?
Shulman v. Group W Productions • Shulman sues on two grounds • Disclosure of private facts • Intrusion
Shulman v. Group W Productions • Shulman sues on two grounds • Judge Werdegar throws out private-facts claim on grounds that judges can’t act as “superior editors”
Shulman v. Group W Productions • Shulman sues on two grounds • Judge Werdegar throws out private-facts claim on grounds that judges can’t act as “superior editors” • Allows intrusion claim to move forward
No special protectionfor newsgathering • Miller v. National Broadcasting Co. • Intrusion into a private place • In a manner that is highly offensive to a reasonable person
No special protectionfor newsgathering • Miller v. National Broadcasting Co. • Branzburg v. Hayes and Cohen v. Cowles Media • Judge Werdegar: “[T]he press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws”
No special protectionfor newsgathering • Miller v. National Broadcasting Co. • Branzburg v. Hayes and Cohen v. Cowles Media • Judge Werdegar: Group W’s story is constitutionally protected, but not its reporting techniques