Mass Media Law18th Edition

Don PemberClay Calvert

Chapter 8Invasion of Privacy: Publication of Private

Information and False LightMcGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.

8-2

Publicity to Private FactsIt is illegal to publicize private information about a person if the matter:

– Has publicity– Would be highly offensive to a reasonable person,

and– Is not of legitimate public concern

8-3

Publicity to Private FactsPublicity in privacy law differs from publication in libel law

– Publicity—the communication of information to a large number of people

– Publication—the communication of information to a single third party

8-4

Publicity to Private FactsPrivate Facts

– The plaintiff must prove the information is indeed private before there was publicity

8-5

Private Facts

– Information is not considered private if:

• The activity happens in public• A large segment of the public is already aware of

the supposedly intimate or personal information• The information is contained in documents or files

that are considered public records

Publicity to Private Facts

8-6

Publicity to Private FactsNaming Rape Victims

• If the victims’ name is part of a public document or proceeding, or if the press obtains it in another legal manner, it can be published without incurring legal liability.

8-7

Publicity to Private FactsNaming Rape Victims

– Even though it is often legal to publish the names of rape victims, most newspapers and broadcasting outlets have internal policies restricting the publication of a rape victim’s name

8-8

Publicity to Private FactsOffensive Material

– If it is determined private facts received publicity, a court then asks:

1. Is the material offensive to a reasonable person, not someone who is overly sensitive?

2. Is the published material of legitimate public interest or concern?

8-9

Publicity to Private FactsLegitimate Public Concern

– To determine this, a court may ask:

1. How much public interest or importance is there in the material?

2. How deeply does publication of these facts intrude into an individual’s privacy?

8-10

Publicity to Private FactsLegitimate Public Concern

– To determine this, a court may ask:

3. How public or private is the individual who is the focus of the story?

4. Is there a nexus between the information about the private life and the public life?

8-11

Publicity to Private FactsEthics and Privacy

– Good editors agree:

• The feelings and sensibilities of the subject of a story should always be considered, but

• These feelings and sensibilities should never be used as a reason to deny the public information that has legitimate public concern

8-12

Publicity to Private FactsEthics and Privacy

– Ethics Code of the Society for Professional Journalists (SPJ):

• “Recognize that gathering and reporting information may cause harm and discomfort. Pursuit of the news is not a license for arrogance.”

• Journalists should “show good taste,” and “avoid pandering to lurid curiosity.”

8-13

Publicity to Private FactsRecounting the Past

– Two kinds of lawsuits arise about the past:

1. A news story, book or TV documentary that simply recounts the past; a history

2. “Where they are now” stories; pushes beyond history

8-14

Publicity to Private FactsRecounting the Past

– When can they be told?

1. History—these kinds of cases are never successful; press have a right to retell these stories

2. “Where they are now” stories—permissible as long as they are not designed to purposely embarrass or humiliate the plaintiff

8-15

Publicity to Private FactsPrivate Facts on the Internet

– The disclosure of private facts on the Internet is treated by the courts in the same way as publication in a newspaper

8-16

False Light PrivacyIt is illegal to publicize material that places an individual in a false light if:

1. The false light in which the individual was placed would be offensive to a reasonable person, and

2. The publisher of the material was at fault when the publication was made

8-17

False Light Privacy

– Both false light privacy and libel cases involve the publication of derogatory material about a plaintiff

– In false light cases, though, the material does not have to harm the plaintiff’s reputation, it must just be false and have caused embarrassment or humiliation

8-18

False Light PrivacyFictionalization

– The purposeful distortion of the truth for dramatic purposes

8-19

False Light PrivacyOther Falsehoods

– Most false light cases result from the publication of false information about a person in a news or feature story because of:

• Simple editing or writing errors, and/or• Misuse of photographs and video

8-20

False Light PrivacyHighly Offensive Material

– To determine if the false light is “highly offensive”, a court will consider the facts from the perspective of a “reasonable person”

8-21

False Light PrivacyThe Fault Requirement

– Since the U.S Supreme Court ruling in Time v. Hill (1967), plaintiffs have been required to prove fault in false light cases

– This fault requirement is very much like the one applied in libel cases