1. The Law of Journalism & Mass Communication
Chapter 6
Privacy:
Limiting Journalists’ Access to Personal Information and Places

2. Sources of Privacy Protection
U.S. Constitution
Federal and state statutes
Tort law

3. Development of Privacy Tort Law
Warren and Brandeis’ 1890 Harvard Law Review article suggesting privacy protection
Prosser’s 1960 law review article dividing privacy tort law into four parts

4. Privacy Tort Law
Appropriation
Intrusion
Private facts
False light

5. Appropriation Commercialization Right of publicity
Personal right protecting against a person’s name, picture, likeness, voice or identity used for commercial or trade purposes without permission
Right of publicity
Property right protecting against well-known person’s name, picture, likeness, voice or identity used for commercial or trade purposes without permission

6. Appropriation First appropriation statute
Abigail Roberson
New York state legislature, 1903
First common law recognition of appropriation
Paulo Pavesich
Georgia Supreme Court, 1905

7. Appropriation Plaintiff Must Prove: Plaintiff’s name used
Even a pseudonym or stage name
Or plaintiff’s likeness used
Even a look-alike
But okay if prominent disclaimer is used

8. Appropriation Plaintiff Must Prove: Or plaintiff’s voice used
Even a sound-alike
But okay if prominent disclaimer is used

9. Appropriation Plaintiff Must Prove: Or plaintiff’s identity used
Vanna White case
“Cheers” case

10. Appropriation Defenses
Newsworthiness
First Amendment
Artistic relevance test
Transformativeness test

11. Appropriation Defenses
Ads for the mass medium
Consent
Incidental use

12. Intrusion
Interfering with another person’s solitude or meddling in a person’s private affairs
If the intrusion would offend a reasonable person

13. Intrusion by Trespass Plaintiff’s case Defense: consent
Plaintiff had reasonable expectation of privacy
The defendant intentionally intruded on the plaintiff’s privacy
The intrusion would be highly offensive to a reasonable person
Defense: consent

14. Private Facts
Publishing truthful, intimate, private information that is not of legitimate public concern
If publishing the information would be highly offensive to a reasonable person

15. Private Facts The plaintiff must show the facts were kept private
Revealed to no more than a few close family and friends

16. Private Facts
Plaintiff must prove the private facts were given widespread publicity

17. Private Facts
The published facts were not of legitimate public concern if published for morbid and sensational reasons

18. Private Facts
First Amendment defense: Generally, the media cannot lose a private facts suit based on truthful information lawfully obtained from a public record

19. False Light
Making a person appear to be someone he or she is not

20. False Light Libel protects a person’s reputation
False light protects a person from emotional distress

21. False Light Plaintiff must prove Publication: widespread distribution
Identification: the material was of and concerning the plaintiff
Falsity
The published material put the plaintiff in a false light that would be highly offensive to a reasonable person
Actual malice, or perhaps only negligence

22. False Light U.S. Supreme Court has ruled in only two false light cases
In both, the Court said all plaintiffs must prove actual malice
Courts in some states follow the Supreme Court’s rulings
Courts in some other states follow the Gertz ruling and allow private plaintiffs to show only negligence in false light cases
Courts in a few states refuse to allow plaintiffs to bring false light lawsuits