Com360: Invasion of Privacy

The Right to Be Left Alone Four Torts (Civil Wrongs): Commercial appropriation of name or likeness Public disclosure of embarrassing private facts Placing an individual in a false light Intrusion upon physical seclusion

Appropriation It is illegal to appropriate an individual’s name or likeness for commercial or trade purposes without consent. It is a property right – protects the economic value of the name or likeness It is a personal right—protects an individual from the embarrassment and humiliation that can occur when a name or picture is used

Commercial use What are advertising and trade purposes? For profit or other interest Use of someone’s name or likeness in an advertisement in any media outlet including websites (includes manuals, recruiting material, etc.) Use of someone’s name or likeness in a media product (television show, movie)

News Exception the Zacchini case (fair use) Individuals cannot sue for appropriation in a news story. “News” has been widely interpreted by the courts to include anything that is not an explicit advertisement. However: the Zacchini case (fair use) Muhammad Ali case (relevance) Playgirl case (false depiction)

Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978)

Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978) Appropriation: The man clearly resembled former heavyweight champion Muhammad Ali. Playgirl was found liable for appropriating Ali's likeness without his consent. The court held: "Ali has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the name of successful business entity.“

Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978) Would the case be the same if the magazine had shown Ali wearing boxing trunks? As a public figure, his likeness and name obviously could be used with legitimate news and feature articles. However, there was no legitimate news value to a depiction of Ali's nudity

News v. commercial use controversies Incidental use News Promos The use of a person’s name or likeness in an advertisement for a media product is usually not regarded as an appropriation if the name or likeness has been or will be part of the content

Art or commercial use? ETW Corp. v. Jireh Publishing, Inc. 2003

Name Or Likeness Names? Not limited to full names Can be nicknames, stage names, pen names A likeness? Photographs, paintings, sketches, cartoons Fictional characters Look alikes / imitations (e.g.,Vanna White case) Sound alikes

Consent as a Defense Written consent is generally uncontestable When Consent Won’t Work Consent today may not be valid in the distant future Some persons (minors, wards of the state) cannot give consent Consent to use a photograph does not apply if the image is materially altered or changed Consent not in exchange for money

Reminder: Four Torts Commercial appropriation of name or likeness Public disclosure of embarrassing private facts Placing an individual in a false light Intrusion upon physical seclusion

Public disclosure of embarrassing private facts The interest protected is that of reputation. It is in reality an extension of defamation ... with the elimination of the defense of truth

Public disclosure of embarrassing private facts First, the disclosure of the private facts must be a public disclosure, not a private one. Second, the facts disclosed to the public must be private facts, not public. Third, the matter made public must be one that would be offensive and objectionable to a reasonable man of ordinary sensibilities.

Disclosure of private facts Disclosure of private facts (true information) that are embarrassing and not newsworthy. (Defamation laws do not apply because the facts are true) Public: Public view is a fair game (but there are exceptions, e.g., “fun house woman case”) Public records and proceedings

Expectation of Privacy A reasonable expectation of privacy exists in a private residence, hospital, hotel room, private office etc. No Expectation of Privacy in Public or in full view (sidewalks, parks, beaches, stores, restaurants, etc.) An intrusion suit cannot be based on the recording of activities that took place in public

Disclosure of private facts The Highly Offensive Disclosure Standard The Newsworthiness Standard Legitimate Public Interest Humiliation for Its Own Sake Facts from the Past

Highly Offensive Physical disorder Unusual sexual practices Bizarre personal habits

Free speech and the right to privacy Nicole "Nikki" Catsouras

The accident and the photos Nikki Catsouras was traveling her father’s Porsche 100 mph onear Lake Forest, Calif., when she clipped another car and lost control, slamming into a concrete tollbooth, killing her instantly. The pictures, taken by California Highway Patrol officers and e-mailed outside the department, spread around the Internet, making their way to about 1,600 Web sites, according to an investigator hired by family. See a report on ABC 20/20 at: http://abcnews.go.com/Video/playerIndex?id=3979266

The case: The Superior Court (County of Orange, CA) Catsouras family sued the California Highway Patrol for invasion of privacy. In 2008, Judge Steven L. Perk dismissed the case. He stated that the CHP officers were not under any responsibility for protecting the privacy of the Catsouras family.

The appeal On February 1, 2010, the California Court of Appeal for the Fourth District had reversed Judge Perk's grant of summary judgment, and instead ruled that the Catsouras family did have the right to sue the defendants for negligence and intentional infliction of emotional distress.

The appeal and settlement On May 25, 2011, the California Court of Appeal for the Fourth District ruled that the CHP failed to prove that e-mailing the photographs is covered by the First Amendment. On January 30, 2012, the CHP reached a settlement with the Catsouras family, under which the family received around $2.37 million in damages.

Facts from the Past The "Red Kimona" case Red Kimona film (1925) was written and produced by Dorothy Davenport Reid, a feminist filmmaker during the silent movie period. It presented the true story of a former prostitute Gabrielle Darley who was charged with murder and found innocent. .

The "Red Kimona" case In 1918, Darley married a high society figure Bernard Melvin and she abandoned her old life. When the 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."

The "Red Kimona" case Important: the case shows earlier approaches of the court. Today the plaintiff would not prevail. 1. Information for the movie taken from public records 2. There was other material widely available 3. The Darley case would be considered newsworthy

Reminder: Four Torts Commercial appropriation of name or likeness Public disclosure of embarrassing private facts Placing an individual in a false light Intrusion upon physical seclusion

Placing an individual in a false light Distortion (out of context) Embellishment (changing the context) Fictionalization Distinguished from defamation by the “damages:” False Light damages are not to reputation, but personal embarrassment and anguish

Distortion (out of context) Leverton v. Curtis Publishing Co., 1951, The plaintiff in 1947, when she was a child of ten, was involved in a street accident in the city of Birmingham, Alabama. A motor car nearly ran over her. The photograph of the child being lifted to her feet by a woman bystander appeared in a newspaper the day following. Twenty months later it was used by the Curtis Publishing Co. as an illustration for an article on traffic accidents, with emphasis on pedestrian carelessness, under the title, "They Ask To Be Killed"

Embellishment (changing the context) Cantrell v Embellishment (changing the context) Cantrell v. Forest City Publishing Co 1974 When a reporter pretended to have interviewed widow of man killed in 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.

Reminder: Four Torts Commercial appropriation of name or likeness Public disclosure of embarrassing private facts Placing an individual in a false light Intrusion upon physical seclusion

Intrusion It is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual in a manner that would be offensive Purpose of the information gathering Means of information gathering: cameras, hidden recording devices, false pretenses

Protection from unwanted observation The main issue here is not the publication, but the process of gathering information

Intrusion and Expectation of Privacy A reasonable expectation of privacy exists in a private residence, hospital, hotel room, private office etc. No Expectation of Privacy in Public or in full view (sidewalks, parks, beaches, stores, restaurants, etc.) An intrusion suit cannot be based on the recording of activities that took place in public

Miller v NBC 1986. Paramedic arrived at Mr. Miller’s home. Camera crew followed all the way to the bedroom filming the resuscitation without obtaining consent from Miller’s wife or anyone else. CONSIDERED INTRUSION

Mark v King Broadcasting 1980.  A television station followed a story about criminal charges against a local pharmacist and filmed him through the window during the usual business hours. NO INTRUSION. The person could have been seen by any passerby.

Shulman v. Group W Productions 1998. In a case settled before it could reach the Supreme Court, the California Supreme Court determined in Shulman v. Group W Productions that a car-accident victim had a reasonable expectation of privacy once she was inside a medical helicopter. CONSIDERED INTRUSION

Dietemann v Time 1971 Life Magazine reporters entered Dietemann’s house under false pretenses of being in need of medical help. Their true intention was to investigate Dietemann who was a quack (minerals, herbs, etc.). Dietemann won mostly because of expectation of privacy in his own home. Especially because the reporters used eavesdropping devices in his private den.

Intrusion and the Internet There is no expectation of privacy when information is voluntarily made accessible to another person or placed in the flow of commerce