Mass Media Law 18 th Edition Don Pember Clay Calvert Chapter 7 Invasion of Privacy: Appropriation and Intrusion McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

7-2 Invasion of Privacy The right to privacy for people is in jeopardy partly because: –Concerns raised after the 9-11 terrorist attacks –A new generation of Americans that are more than willing to give away their privacy in exchange for the opportunity to participate in electronic social networking

7-3 The Growth of Privacy Laws Privacy laws arise at the end of the 19 th century because of: –Movement from a rural to urban society –Sensational journalism

7-4 Appropriation It is illegal to appropriate an individual’s name or likeness for commercial or trade purposes without consent

7-5 Appropriation Two rights involved: 1.Right to Privacy – protects an individual from the embarrassment and humiliation that can occur when a name or picture is used without consent for advertising purposes It is a personal right Protects individuals from emotional harm

7-6 Appropriation 2. Right of Publicity – protects individuals from the exploitation of their name or likeness for commercial purposes It is a property right – protects the economic value of the name or likeness

7-7 Appropriation Use of Name or Likeness –What are names? Not limited to full names Can be nicknames, stage names, pen names

7-8 Appropriation Use of Name or Likeness –What is a likeness? Photographs, paintings, sketches, cartoons Fictional characters Look alikes Sound alikes

7-9 Appropriation Advertising and Trade Purposes –Examples of commercial use: Use of someone’s name or likeness in an advertisement in any media outlet including websites A testimonial falsely suggesting an individual uses a product Use of someone’s name or likeness in a commercial entertainment vehicle (television show, movie)

7-10 Appropriation News and Information Exception –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

7-11 Appropriation Other Exceptions –Booth Rule 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

7-12 Appropriation Consent as a Defense –Written consent is generally uncontestable –Oral consent does not offer the same protection; it can be easily contested

7-13 Appropriation When Consent Might Not Work –Consent today may not be valid in the distant future –Some people (minors, wards of the state) cannot give consent –Consent to use a photograph does not apply if the image is materially altered or changed

7-14 Appropriation Life After Death –The right to privacy is a personal right that dies with the individual –Several states have passed laws stating the right to publicity may live on after death (with heirs controlling these rights)

7-15 Intrusion It is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual –Trespass – the intentional and unauthorized entry onto land or property occupied or possessed by another –Intrusion may occur without trespass

7-16 Intrusion Intrusion and the Press –Intrusion may occur in many ways, for example: Eavesdropping to overhear a conversation Gathering personal information from an individual’s private records Using a telephoto lens

7-17 Intrusion Intrusion and the Press –All courts will ask whether the plaintiff “enjoyed a reasonable expectation of privacy” when the information was collected

7-18 Intrusion No Privacy in Public –There is no expectation of privacy in public –Anything that is visible or audible by any person in the vicinity is public, not private –There is no expectation of privacy in places where people gather (restaurants, airplanes)

7-19 Intrusion No Privacy in Public –While photographers can take photos in public places, they may be limited in how close they can come to individuals without engaging in harassment –California has passed an anti-paparazzi law that creates tort liabilities for physical and “constructive” invasions through photographing, videotaping or recording a person engaged in “personal or familial activity.”

7-20 Intrusion The Use of Hidden Recording Devices –There are expectations of privacy in homes, but not in public places of businesses where people are invited in

7-21 Intrusion Hidden Recording Devices –Ethical guidelines for when to use hidden recording devices: When the information is of profound importance When all other alternatives for obtaining the same information have been exhausted When the individuals involved and their news organizations apply the excellence needed to pursue the story fully

7-22 Intrusion Hidden Recording Devices –Ethical guidelines for when to use hidden recording devices: When the harm prevented by the information revealed outweighs any harm caused by the deception When the journalists involved have conducted a meaningful, collaborative and deliberative decision to justify deception

7-23 Intrusion Intrusion and the Publication of Information Obtained Illegally –Journalists are not held accountable for information obtained illegally by another party and passed on to them –Journalists are held accountable for information they have obtained illegally

7-24 Intrusion and the Internet –Assumption of Risk Analysis - There is no expectation of privacy when information is voluntarily made accessible to another person or placed in the flow of commerce

7-25 Intrusion and the Internet Legislative Action –Electronic Communications Privacy Act –Makes it illegal to: Intentionally intercept a cellular telephone conversation Forbids the manufacturers and importers of radio scanners from making or selling scanners that can intercept communication used for cell phones Outlaws intentional interception of online communications

7-26 Intrusion on the Internet Legislative Action –Drivers License Protection Act Barred state departments of motor vehicles from disclosing personal information about individuals that is contained in driver’s license records