PRIVACY AND COMMUNICATION

Privacy, as defined by Judge Thomas Cooley (1888, p. 29), is "the right to be let alone." As the electronic media expands its reach to all parts of the globe, and twenty-four-hour news services are increasing their desire for time-filling material, federal and state courts are seeing more and more lawsuits that deal with the violation of privacy. In their rush to beat the deadline, reporters may find themselves on the wrong side of a privacy tort. While libel cases make the news, and make newsrooms shudder, it is the tort of privacy that the journalist is more likely to be charged with in civil court.

Privacy entered the legal arena in 1903, when the state of New York passed a statute that made it a misdemeanor and a tort to use someone's name or picture for trade purposes without prior consent. The legislature was reacting to the case of a woman who had no legal recourse after her portrait was used in a flour advertisement that was tacked up in saloons, stores, and warehouses.

When media professionals talk about privacy, they generally mean the five tort actions of unreasonable disclosure of embarrassing private facts, intrusion upon seclusion, portrayal in a false light, appropriation for commercial purposes, and the right of publicity. These actions are referred to as the common-law invasion of privacy, although the courts are still refining the status of the right of publicity.

In the latter part of the twentieth century, plaintiffs seldom prevailed in their invasion of privacy lawsuits. However, that does not prevent someone from attempting to recover something of value from the reporter if that person perceives that the published stories have done harm to his or her reputation. Therefore, it is imperative that the reporter become familiar with the five torts of invasion of privacy. This will go a long way to ensure an adequate defense if the reporter winds up in court.

Unreasonable Public Disclosure of Embarrassing Private Facts

Unreasonable public disclosure of embarrassing private facts is the tort that is most often cited in cases that are brought before the courts. It is also the branch of invasion of privacy to which most definitions of privacy apply. Yet, even though the odds against winning are great, plaintiffs file embarrassing private facts lawsuits frequently; only false light actions appear to outnumber embarrassing facts among all privacy cases.

Why do plaintiffs almost always lose? The major reason is that the defense of newsworthiness, adopted early in the development of the cause of action, has almost completely negated the tort. Newsworthiness means different things to different people, but the majority of cases that have applied an analysis of the newsworthiness defense have relied on the definitions of the news media themselves in reaching conclusions. An editor or news director will likely consider any story news-worthy. Why else would the story have been published in the first place? At times, courts may apply a narrower definition—holding that issues that directly affect the audience members are newsworthy, but that facts that are merely interesting is outside the scope of the newsworthy defense.

The problem with this interpretation is that it focuses on the news value of the story, especially its political or social value, rather than the personal or intimate character of the information. Such narrow definitions of the newsworthiness of a story also fail to take into account the significance of entertaining or novel information. One of the ironies of the embarrassing disclosure of private facts lawsuit is the increased publicity that accompanies the filing of such a lawsuit. Not only is the case brought out in the media, but also the original facts are brought forth again and again. Because the facts are now newsworthy, the lawsuit can only pertain to the original publication or broadcast. Once the lawsuit is public, the tort no longer applies.

In most cases, privacy rights terminate when a person dies or when their name appears in a court document or records of proceedings. Therefore, in these cases, the privacy tort cannot be used.

Two additional lines of private facts cases concern whether occurrences of the past that were then a matter of public record or public interest would be public if they were brought out again at a later date by the media. In Roshto v. Hebert (1983), it was determined that controlling weight on the decision should be given to the fact that the stories were true and a matter of previous public record. Past allegations, so long as they were made by law enforcement or government officials, are also protected from liability when published.

Newsworthiness by proximity to an event or to another person has been less of a concern. Campbell v. Seabury Press (1980) extended the public interest or newsworthiness defense to entirely private persons because of a "logical nexus between the complaining individual and the matter of legitimate public interest." Campbell dealt with the publication of remarks from a former sister-inlaw in the biography of a civil rights leader.

Where can one draw the line between news and intrusion of someone's privacy? Taking into account what the public finds acceptable in its news and entertainment media, should there be a line at all? The courts are trying to decide the answer. Until they do so, one can see that there are fewer disclosure of embarrassing private facts lawsuits being filed, and of those that are filed, the plaintiffs are losing almost every time.

Intrusion

The tort of intrusion upon seclusion deals with newsgathering techniques rather than what is ultimately published. This tort seeks to protect the right of individuals to be left alone in places where there is a reasonable expectation of privacy—in other words, where someone would normally not expect to be observed by others. An act of intrusion occurs when someone intentionally enters a location where another has a privacy interest. In order for the tort to be applied, the intrusion must "be offensive to a reasonable person." Content of the news story or the permission of the owner or privacy interest holder is the complete defense for the tort of intrusion. By giving consent to enter, a person has waived their privacy interest, at least temporarily. Moreover, when newsgathering occurs in a public place, or a place where anyone could have gathered the same facts, a plaintiff has no reasonable expectation of privacy—similar to the "in plain view" defense in Fourth Amendment cases.

In reality, intrusion upon seclusion cases present little danger to the news media. Few suits are filed, and plaintiffs win still fewer. The only time that the media is in danger of violating the tort of intrusion is when the media also violates the common law of trespass—in other words, by entering onto private property without the consent of the owner or somehow interfering with the owner's right of exclusive possession. The property in question must be a place wherein the plaintiff has the right to exclude others (i.e., nonpublic, "private" property). As with intrusion, consent or permission serves as a complete defense.

Intrusion can also be closely related to nuisance laws, especially when surveillance reporting through electronic or photographic means is involved. How a journalist obtains information may be just as offensive to a reasonable person as outright trespass. By using extraordinary means of newsgathering, reporters might find themselves on the wrong side of an intrusion complaint. Extraordinary means include persistent following of a potential news source, in addition to electronic or mechanical means.

The common element in all of these actions is control of one's own property or information about oneself. It is the interference with solitude or space, not the information that is gathered, that justifies the action. However, if the plaintiff cannot lay the claim of intrusion at first, then whatever harm may have come from the publication of facts gleaned during the intrusion is irrelevant.

Routine newsgathering in or from public places is almost always protected from a claim of intrusion. However, if newsgathering behaviors approach harassment, stalking, or public nuisance, the courts have occasionally been persuaded that intrusion or "tortuous newsgathering" has occurred. Tortuous newsgathering includes intrusion, trespass, fraud, harassment, and other related legal issues.

The proliferation of electronic communication devices, including cordless telephones, pagers, e-mail, computer software, and satellite telephones have caused privacy concerns to grow. Statutes at the federal level and in many states are designed to safeguard the privacy of private communications. However, some courts have held that there is no privacy interest in messages that are distributed over unsecured channels. Federal law has been interpreted as creating an interest in the security of communications, not of its confidentiality. In several cases that concerned privacy in the workplace, the federal courts have held that the owner of the communications system can tap into the network and monitor employee communications at any time, without the consent or knowledge of the employee. However, when a third party views the internal communications of a company without the consent of the company, then a tort of intrusion or trespass has occurred.

Is a reporter liable to charges of illegal wiretapping if telephone interviews are recorded without the source's consent? That depends on local state laws. Ten states bar one-party consent recording of telephone calls or of individuals in person. Broadcast news professionals are further barred from airing a recorded telephone call without the other party's consent. That consent must either be in writing or stated clearly by the source at the beginning of the conversation. However, the Federal Communications Commission (FCC), the agency that regulates the airwaves, has allowed exceptions to this regulation for reporters who were investigating crime. The FCC also prohibits the transcription or use of nonpublic radio broadcasts, such as broadcasts that are heard over police scanners, but the commission has not enforced that rule. It has, however, admonished broadcasters to respect that rule, reminding them of their public-interest obligation of not attracting crowds to dangerous situations.

If a reporter interviews someone from another state, is there a risk? Again, that depends on the courts. One might think that the state laws that are in effect in the state where the call originates would be applicable. However, Krauss v. Globe International, Inc. (1995) has indicated other-wise—at least where tort claims are involved.

Federal court decisions have interpreted the Omnibus Crime Control Act of 1968 to mean that if one side of a communication knows that the conversation is being taped, then no illegal wiretapping has occurred.

While wiretapping and bugging of private places by the media are illegal, eavesdropping or recording conversation that is taking place in a public or quasi-public location is legal for both print and broadcast media.

Portrayal in a False Light

Invasion of privacy by portrayal in a false light is the one tort that has fared the worst of all torts in the courts. In fact, false light is a legal hybrid. False light accusations concern either false assertions of fact or false implications of fact, just as in libel. The difference is that in false light, the errors need not be defamatory, only embarrassing. Because of that, false light is a privacy tort rather than a part of libel law in that the harm is considered to be against one's dignity rather than to one's reputation. Another way to look at the difference is that libel harms one in ways that can be quantified, whereas false light, while damaging, cannot be easily calculated. Where one lives could determine whether or not false light is even actionable. Ohio, Texas, and Massachusetts have all refused to acknowledge the existence of false light. These actions are libelous in those states.

The federal courts define false light in specific terms. According to the Restatement (Second) of Torts (section 652), false light is said to have occurred if "(a) The false light in which the other was placed would be highly offensive to a reasonable person and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Part (b) reflects the "federalization" of both libel and false light under the First Amendment by the U.S. Supreme Court.

Filings of false light lawsuits are numerous enough to be a concern for the press. However, as with libel cases, false light cases are hard for plaintiffs to win. Plaintiffs might resort to false light claims rather than libel because the action, as defined in the Restatement of Torts, does not require the proof of defamatory meaning. Thus, this means that a plaintiff only has to prove that the defendant negligently (rather that with malice) overlooked an unfortunate meaning, resulting in embarrassment for the plaintiff. This makes false light cases easier to win for the plaintiffs, and it also invites criticism from legal and media experts.

The most typical instances of false light claims deal with coincidental uses of names, fictionalization, distortion, embellishment, and misuse or misidentification in pictures through unfortunate (not intentional) juxtapositions in otherwise legitimate news stories. If there is anything like a general rule to spotting a potential false light privacy invasion, it would be that some inappropriate interpretation or implication could be drawn from the news story.

Appropriation and the Right of Publicity

Using someone's name, picture, or distinctive personal characteristics without securing the permission of the individual was the first type of invasion of privacy tort to be recognized by the states. It is committed more frequently in promotions, advertising, and merchandising publications than by news personnel. Nevertheless, the tort is still of concern for the mass media.

To prove appropriation, a person must prove that they were used in an identifiable fashion for a commercial purpose without prior consent. In fact, the first appropriation case, Pavesich v. New England Life Insurance Co. (1905), involved an insurance company that used the plaintiff's picture and name and a phony endorsement. The two elements—identification and commercial use— remain the defining characteristics. The tort is designed to protect an individual's "persona" from noncompensated use for commercial purposes.

Starting in the 1950s, more and more appropriation cases have involved taking the name, likeness, or characteristics of famous people rather than unknown persons. From this line of cases has sprung a new tort, the right of publicity, which seeks to protect the monetary interests of those whose names, faces, or characteristics are marketable.

The obvious defense against a lawsuit that alleges appropriation would be a signed consent or release form from the person whose identity is used. Actually, consent forms are a defense against all invasion of privacy torts. However, the forms are rarely used in instances that are likely to provoke private facts, intrusion, or false light cases. Release forms are important tools where the famous or unknown are to be the subject of news or promotional events. If minors or the mentally incompetent are to be used, the parent or guardian must sign the form prior to the release of the materials. If the signed form accurately reflects the use of the name and picture, then it becomes the complete defense. In the case of celebrities, there is usually some form of payment that accompanies the signing of the form. Oral releases can be argued in court; however, the plaintiff usually wins.

Any major alteration of a photograph or substantial changes in treatment of the subject will void almost all release forms and may open the door to additional false light charges as well. Because the passage of time may nullify the reasons for consent, the media should seek an additional release form before using older images, or if the image is to be used for a different purpose than the originally agreed upon purpose.

The use of images of deceased celebrities will be entering the courts soon, as new digital technology can make long-dead movie stars interact with living actors. The appropriation tort states that the immediate family of the deceased owns the right of appropriation for fifty years beyond the date of death. If necessary, the rights can be renewed once through the copyright office.

While invasion of privacy torts should never be far from the mind of the media professional, common sense should dictate their actions. The public's right to know is almost always inviolate. However, when those rights interfere with an individual's right "to be let alone," the journalist should be ready with the consent forms or be ready to prove that the story was newsworthy and that the facts were gathered in a public or quasi-public place. The journalist should also be ready to show that he or she did not stalk the source or use some other illegal means of obtaining the information. This might not keep the journalist out of court, but will definitely increase the chances of winning the case.

See also:Federal Communications Commission;First Amendment and the Media; News Production Theories; Privacy and Encryption.

Bibliography

Alderman, Ellen, and Kennedy, Caroline. (1995). The Right to Privacy. New York: Knopf.

Cooley, Thomas. (1888). A Treatise on the Law of Torts,2nd edition. Chicago: Callaghan.

Ernst, Morris L., and Schwartz, Alan U. (1968). Privacy: The Right to Be Let Alone. London: MacGibbon & Kee.

Hendricks, Evan; Hayden, Trudy; and Novick, Jack D.(1990). Your Right to Privacy: A Basic Guide to Legal Rights in an Information Society, 2nd edition. Carbondale: Southern Illinois University Press.

Kupferman, Theodore R., ed. (1990). Privacy and Publicity. Westport, CT: Meckler.

Snyder, Gerald S. (1975). The Right to Be Let Alone: Privacy in the United States. New York: Julian Messner.

Eric E. Harlan