Invasion of Privacy Flashcards
Restatement
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if…
the intrusion would be highly offensive to a reasonable person.
- *Comments:**
- a*. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
- b*. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined
Case
Rule
A public figure may not have an action for invasion of privacy for publication of limited details of his private life, including his dress, speech, habits, and the ordinary aspects of his personality.
Sidis v. F-R Publishing Corp.
United States Court of Appeals for the Second Circuit
113 F.2d 806 (2d Cir. 1940)
Rule of Law
A public figure may not have an action for invasion of privacy for publication of limited details of his private life, including his dress, speech, habits, and the ordinary aspects of his personality.
Facts
William James Sidis (plaintiff) was a child prodigy in mathematics. At the age of eleven, he gave a lecture on Four-Dimensional Bodies to a group of distinguished mathematics professors. At the age of sixteen, he graduated from Harvard College. Both events received significant press coverage, and Sidis was regarded as a public figure in which the general public had significant interest. After his childhood success, however, he tried to downplay his achievements and went to great lengths to live in obscurity. He lived alone in a small apartment and worked as a common clerk. In 1937, the New Yorker, a magazine published by F-R Publishing Corp (F-R) (defendant) published a story on former public figures, titled “Where Are They Now?” The article commented extensively on Sidis’ desire to remain obscure and the lengths to which he went to hide from his past as a childhood prodigy. It described his dress, manner of speaking, living accommodations, and occupation as a clerk. The article was not derogatory toward Sidis, but represented him as having a “child-like charm.” Sidis brought suit against F-R for invasion of his right of privacy, infringement of his civil rights, and malicious libel. The trial court granted F-R’s motion to dismiss on the right of privacy and civil rights claims, and Sidis appealed.
Issue
Whether an action for invasion of privacy lies for “limited scrutiny” by the press of details of the private life of a public figure.
Holding and Reasoning (Clark, J.)
No. Sidis does not have an action for invasion of privacy against F-R. A public figure may not have an action for invasion of privacy for publication of limited details of his private life. Such “limited details” which may be discussed by the press may include the public figure’s dress, speech, habits, and the ordinary aspects of his personality. Sidis became a public figure due to his status as a child prodigy and the resulting press coverage. The public clearly had an interest in his intellect and the potential promise he could achieve. The New Yorker article published years later discussed the extent to which Sidis achieved that promise, and thus was relevant to the matter of public concern which originally made Sidis a public figure. While public figures are generally free from unwelcome inquiries into their private lives, they do not enjoy “unlimited immunity” for private details. The New Yorker article’s truthful comments about Sidis’ dress, speech, habits, and personality did not cross the line of becoming an improper invasion of Sidis’ privacy. Since F-R did not invade Sidis’ privacy, Sidis also did not have an action for libel based on the article. Even if the article was published with actual malice (as is required for proving libel by public figures), its words would not be transformed into an invasion of Sidis’ right to privacy. Sidis does not have an action for invasion of privacy against F-R, and the decision of the trial court to dismiss his case is affirmed.
Shulman v. Group W Productions, Inc.
Shulman v. Group W Productions, Inc.
Supreme Court of California
955 P.2d 469 (1998)
Rule of Law
In California, one who intentionally intrudes upon a private place, conversation, or matter of another in a manner that is highly offensive to a reasonable person is liable in tort.
Facts
Ruth Shulman and another family member (plaintiffs) were injured when their car went off the highway, overturned, and trapped them inside. A medical transport and helicopter provided assistance to Shulman and the passenger. Accompanying the paramedics was a video camera operator employed by a television producer who worked for Group W Productions, Inc. (Group W) (defendant). The cameraman filmed Shulman’s extrication from the vehicle, the medical care provided, and her transportation to a hospital in the helicopter. At the same time, a small microphone placed on a nurse captured audio conversations with Shulman and her family member. The video and audio were edited and subsequently broadcast on a television documentary show. Neither Shulman nor her family member consented to the video or audio taping of the rescue efforts or of the broadcast. Shulman brought suit against Group W for invasion of privacy, more specifically intrusion into private places, conversations or other matters. The trial court granted Group W’s motion for summary judgment, and Shulman appealed. The court of appeal revered, holding that there were genuine issues of material fact as to Shulman’s claims. Group W appealed to the California Supreme Court.
Issue
In California, is one who intentionally intrudes upon a private place, conversation, or matter of another in a manner that is highly offensive to a reasonable person liable in tort?
Holding and Reasoning (Werdegar, J.)
Yes. The California tort of intrusion into private places, conversations or other matters requires
(1) an intrusion into a private place, conversation or matter,
(2) in a manner that is highly offensive to a reasonable person.
To establish “intrusion” a plaintiff must show that, while enjoying a reasonable expectation of privacy or seclusion, a defendant invaded some zone of physical or sensory privacy area or obtained unwanted access to, or data about, the plaintiff. Here, Shulman had no right of ownership, possession or control of the area where the rescue, and accompanying video/audio recording, took place. Additionally, Shulman had no reasonable expectation that members of the media should have been excluded from the public area in order to capture a newsworthy event. However, Shulman possibly had a reasonable expectation of privacy when she was within the helicopter being transported to the hospital. Typically, media personnel are not allowed to ride inside an ambulance as paramedics care for an injured person. Further, Shulman was entitled to a degree of privacy in her conversations with the nurse and the nurse’s subsequent conversations with the hospital regarding Shulman’s medical condition. Such questions regarding Shulman’s right to privacy in those instances and whether she had a reasonable expectation of privacy in her conversations should be presented to a jury. Next, to prove whether the intrusion was “offensive” requires analysis of the totality of the circumstances around the intrusion, including its degree and setting and the intruder’s motives and objectives. A reasonable person could well determine that a cameraman and audio recording of a personal medical emergency might be offensive and a court should determine the media’s motives for gathering the news story. Offensiveness also depends on the method of newsgathering. Here, a jury could find the recording of Shulman’s communications to the nurse and the filming in the helicopter as “highly offensive to a reasonable person.” Arguably, the last thing an injured accident victim should have to worry about while being pulled from her wrecked car is that a television producer may be video and audio recording everything she says to medical personnel for broadcast to the public. Moreover, a reasonable jury could well conclude that placing a microphone on the nurse or filming inside the helicopter was not justified in a pursuit to gather “real” news stories. There is no constitutional protection for a member of the media who intrudes in an objectively offensive manner into the private places, conversations or matters of another merely because there might be something to eventually broadcast. The trial court’s grant of summary judgment in favor of Group W is reversed as to the cause of action for invasion of privacy by intrusion.
Dissent (Chin, J.)
The majority incorrectly holds that the circumstances surrounding Shulman’s extrication and medical attention were “highly offensive to a reasonable person.” Here, the cameraman merely recorded newsworthy events of legitimate public concern. Recording of the events as they unfolded was innocuous and inoffensive in a non-secretive manner.
Case
Rule
An invasion of privacy claim is barred under the First Amendment if the claim is based on publication of facts obtained from public, official records of a criminal proceeding.
Gates v. Discovery Communications, Inc.
Supreme Court of California
101 P.3d 552 (2004)
Rule of Law
An invasion of privacy claim is barred under the First Amendment if the claim is based on publication of facts obtained from public, official records of a criminal proceeding.
Facts
Steve Gates was convicted of being an accessory after the fact to a murder for hire, and served a three-year prison sentence, after which he lived an obscure and lawful life. More than a dozen years after the crime occurred, Discovery Communications, Inc. and another company (together, Discovery) aired a documentary that presented an account of the crime based on information gathered from public, official court records. Gates (plaintiff) sued Discovery (defendants), alleging defamation and an invasion of privacy. The trial court dismissed the defamation claim because the disclosures were accurate, but denied Discovery’s request to dismiss the invasion of privacy claim. The Court of Appeal reversed as to the invasion of privacy claim, holding that Discovery’s disclosures were truthful and were contained in the public records of a judicial proceeding, and were accordingly protected under the First Amendment. The Supreme Court of California granted review.
Issue
Is an invasion of privacy claim barred under the First Amendment if the claim is based on publication of facts obtained from public, official records of a criminal proceeding?
Holding and Reasoning (Werdegar, J.)
Yes. An invasion of privacy claim is barred under the First Amendment if the claim is based on publication of facts obtained from public, official records of a criminal proceeding. In bringing his invasion of privacy claim, Gates relies onBriscoe v. Reader’s Digest Association, Inc., 483 P.2d 34 (1971), which held that a cause of action for invasion of privacy arises from the reckless, offensive, and injurious publication of true but not newsworthy information about the criminal history of a rehabilitated convict. However, this holding, at least as it applies to facts obtained from public official court records, has been overturned by subsequent opinions of the U.S. Supreme Court. In Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975), the Supreme Court held that a television station was immune from liability for publishing the identity of a deceased rape victim whose name was obtained from public court records. Similarly, in Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1975), the Supreme Court found that the press could not be prohibited from truthfully publishing information released to the public in connection with the prosecution of a crime. In The Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court established the rule that, if a newspaper lawfully obtains truthful information about a matter of public significance, the state may not punish publication of the information unless there is a need to further a state interest of the highest order. The reasoning behind this rule is that in most cases the government has the ability to protect confidential information without punishing its publication; punishing publication of information already available to the public does not further the protection of the right of privacy; and punishing truthful information lawfully obtained could have a chilling effect on the press. Thus, an invasion of privacy claim is barred under the First Amendment if the claim is based on publication of facts obtained from public, official records of a criminal proceeding, as it is in this case. The Court of Appeal’s judgment is therefore affirmed.
Time, Inc. v. Hill
In Time, Inc. v. Hill the Court extended the application of the actual malice rule to actions alleging that a plaintiff’s privacy had been invaded by “false reports of matters of public interest.”
In 1974 the Court held in Gertz v. Robert Welch, Inc. that private plaintiffs did not have to prove actual malice to recover damages in defamation suits, even if the publication at issue concerned matters of public interest. Since then, the courts have divided over the question of whether Gertz put limits on the holding in Time or whether defendants in false-light privacy actions should receive greater constitutional protection than defendants in defamation actions.
Time, Inc. v. Hill
United States Supreme Court
385 U.S. 374 (1967)
Rule of Law
To recover damages for false reports on matters of public interest, a private plaintiff must prove that the defendant published the report about the plaintiff with knowledge of its falsity or reckless disregard of the truth.
Facts
In 1952, James Hill (plaintiff) and his wife and five children were held hostage in their home for nineteen hours by three escaped convicts. The convicts ultimately released the Hill family unharmed. The story gained significant press, however, after the police subsequently killed two of the convicts and captured the third. In 1955, a magazine owned by Time, Inc. (Time) (defendant) published an article which mentioned a new Broadway play coming out. The play was titled “The Desperate Hours” and purportedly chronicled the experience of Hill and his family. However, scenes from the play contained factual inaccuracies about the conduct of the Hill family during their captivity. Hill brought suit against Time on the ground that the article portrayed his family in a “false and untrue” manner. The jury awarded Hill $50,000 in actual damages and $25,000 in punitive damages. The Court of Appeals of New York affirmed on the ground that Time’s fictionalized account of Hill’s life, and its unauthorized use in the article, were not protected by the “newsworthiness” defense. The United States Supreme Court granted certiorari.
Issue
Whether a private plaintiff may receive damages for false reports of matters of public interest without proving that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.
Holding and Reasoning (Brennan, J.)
No. Hill has not shown Time published the article about him with knowledge of falsity or reckless disregard of the truth. To recover damages for false reports on matters of public interest, a private plaintiff must prove that the defendant published the report about the plaintiff with knowledge of its falsity or reckless disregard of the truth. This rigorous burden of proof for plaintiffs is necessary to respect the strong constitutional protections for speech and press in the First and Fourteenth Amendments to the United States Constitution. To permit damages for every innocent or even negligent publication of untrue facts would overly constrain the press and prevent them from exercising their constitutional right to report on matters of public interest and concern. The record developed at trial would support a conclusion by a reasonable jury that either Time acted innocently or negligently in misstating facts about Hill’s experience, or that it portrayed the play about Hill with reckless disregard of the truth or with actual knowledge that the play’s portrayal of Hill was false. As only the second conclusion will give rise to damages, the case is reversed and remanded for further consideration by a jury of this issue. Hill has not conclusively shown Time published the article about him with knowledge of falsity or reckless disregard of the truth, and thus the decision of the New York Court of Appeals is reversed and remanded.
Concurrence (Douglas, J.)
The matter of Hill’s captivity had been in the news for a long time and was thus a significant part of the public domain. Once a private matter is that much a part of the public domain, the private individual implicated in the matter ceases to retain a right of privacy.
Dissent (Fortas, J.)
The trial court gave sufficient instructions about the requirement for Hill to prove “knowing and reckless falsity” to make a reversal arbitrary and unjustified. There is no reason to revisit the record at trial.
Yath v. Fairview Clinics, N.P.
Yath v. Fairview Clinics, N.P.
Minnesota Court of Appeals
767 N.W.2d 34 (2009)
Rule of Law
A state law prohibiting the unauthorized disclosure of an individual’s private medical information may be preempted by the federal Health Information Portability and Accountability Act (HIPAA) if the state law is contrary to the purposes of the federal law.
Facts
Candace Yath (plaintiff) visited Fairview Clinics, N.P., doing business as Fairview Cedar Ridge Clinic (the Clinic) (defendant), to be treated for a sexually transmitted disease. Navy Tek (defendant), a medical assistant at the Clinic who was related to Yath’s ex-husband, recognized Yath and accessed her medical file without authorization. Tek learned of Yath’s medical diagnosis as well as information related to Yath’s new sex partner and relayed the information to another Clinic employee, Net Phat (defendant), who in turn, disclosed it to others, including Yath’s ex-husband. Subsequently, the Clinic investigated the unauthorized access to Yath’s medical file and eventually fired Tek. Shortly thereafter, a MySpace.com webpage emerged showing Yath’s photo, name, and stating that she had a sexually transmitted disease and had cheated on her spouse. The webpage was created at a business where Tek’s sister, Molyka Mao (defendant), was employed. Yath sued Tek, Mao, Phat, and the Clinic for invasion of privacy, breach of a confidential relationship, intentional infliction of emotional distress, negligent infliction of emotional distress, and for violating Minnesota law related to unauthorized disclosure of a person’s medical information. Yath subsequently dismissed the claims against Mao and Tek. The trial court granted summary judgment in favor of the Clinic and Phat. Yath appealed.
Issue
May a state law prohibiting the unauthorized disclosure of an individual’s private medical information be preempted by the federal Health Information Portability and Accountability Act (HIPAA) if the state law is contrary to the purposes of the federal law?
Holding and Reasoning (Ross, J.)
Yes. Yath first argues that the trial court erred in granting summary judgment in favor of the Clinic and Phat on her invasion of privacy claim. Yath’s claim is based on publication of private facts and should survive a motion for summary judgment if there is evidence to support that
(1) a defendant gave “publicity” to a matter concerning Yath’s private life;
(2) the publicity of the private information would be highly offensive to a reasonable person; and
(3) the matter is not of legitimate concern to the public.
The trial court concluded that Yath’s private information was not given “publicity” within the meaning of the statute because Yath failed to substantiate the number of people that had seen the MySpace.com webpage. However, the publicity element is satisfied when private information is posted on an unrestricted, publicly-accessible website. That was the case here. Nevertheless, the individual most likely liable for the webpage creation and posting, Molyka Mao, is no longer a party to the action. Yath dismissed all claims against Mao. Yath next argues that the trial court erred in granting summary judgment in favor of the Clinic and Phat on her state law claim related to the unauthorized disclosure of a person’s medical information. The Clinic counters that the Minnesota law is preempted by the federal Health Information Portability and Accountability Act (HIPAA). Specifically, the Clinic argues that HIPAA does not provide for a private cause of action for the wrongful disclosure of an individual’s medical information while Minnesota law does. Therefore, the Clinic argues, the state law “contrary” to the federal law. A state law is “contrary” to HIPAA if a health care provider “would find it impossible to comply with both the State and federal requirements” or if the state law is “an obstacle to the accomplishment and execution of the full purposes” of HIPAA. 45 C.F.R. § 160.202. The only difference between the two laws is that a HIPAA violation subjects a person to criminal penalties while the Minnesota statute provides for compensatory damages in a civil action. The state law is not “contrary” to the aims of HIPAA. Similarly, the Minnesota law is not an obstacle to the accomplishment to the execution of the full purposes of HIPAA. The purpose of HIPAA is to improve the federal Medicare and Medicaid programs as well as the efficiency and effectiveness of the health information system through the establishment of standards and requirements. The Minnesota law supports that federal effort by establishing another disincentive for wrongfully disclosing health information. The Minnesota law is not preempted by HIPAA. The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with the opinion.
P can sue for false light when something highly offensive is implied to be true about P that is actually false.
False light in California is different from defamation. While defamation concerns statements that are actually false, false light is about false implications.
The difference between defamation and false light can be illustrated by _____________the case that established false light in California.
Gill v. Curtis Publishing Co., 239 P.2d 630 (Cal. 1952)
In Gill, the “Ladies Home Journal” published an article criticizing “love at first sight” as being based on nothing more than sexual attraction. The author said such love was “wrong” and would lead to divorce. The article featured a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple, who did not know the photo had been taken, sued. Although the journal did not actually say the couple was engaged in the “wrong” kind of love, the implication was clearly there. The couple won by proving the magazine created a false impression of them.
Elements of a False Light Claim
Falsehood
P must show that the D implied something false. For instance, in Gill, discussed above, the photograph created the false impression that the couple was behaving wrongly in love. Similarly, in Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), the court found that having an actor’s photo on the cover of Playgirl magazine, in combination with the magazine’s headlines, could create the false impression that nude photos of the actor appeared inside.
On the other hand, when there is no false implication of fact, the claim will not succeed. True statements are not actionable. Moreover, when the context shows that the writer is using “rhetorical hyperbole” and “imaginative expression” that “cannot be read to imply the assertion of an objective fact,” the plaintiff’s claim will fail. See Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995).
It is important to distinguish the types of falsehoods appropriate for a false light claim versus a defamation claim. As discussed above, defamation concerns false statements of fact, while false light concerns false implications. Ps generally cannot sue for both at the same time about the same statement. When a plaintiff sues for both defamation and false light, and the suit basically concerns a false statement of fact, the court will dismiss the false light claim as superfluous. See, e.g., McClatchy Newspapers, Inc. v. Superior Court, 189 Cal. App. 3d 961, 13 Media L. Rep. 2281 (Cal. Ct. App. 1987);see also “Single Publilcation Rule,” Cal. Civil. Code. § 3425.3 (prohibiting more than one cause of action concerning a false statement for the same publication).
Offensiveness
For P to win, the statement must do more than create a false impression. The false impression that is created must be “highly offensive to a reasonable person.” Fellow v. Nat’l Enquirer, Inc., 32 Cal. 3d 234, 238, 13 Media L. Rep. 1305 (Cal. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the P is offended; it must be reasonable to take offense.
Identification of Plaintiff
The falsehood in question must sufficiently identify P. California courts generally do not require P to be identified by name. For instance, cases such as Gill, discussed above, concern photographs.
Public Disclosure
P must show that D publicly disclosed the falsehood concerning them. While this basic requirement is clear, its application is not – courts go back and forth on how many people must receive the information for it to be “publicly disclosed.” It is safe to say that publishing on the Internet for the whole world to see is public disclosure, and it probably safe to say that privately telling one person is not public disclosure; but it is hard to define the requirement any further.
Fault
P must also show that the false implication occurred due to the defendant’s fault. If the plaintiff is a public figure, then the plaintiff must show that the defendant acted with “actual malice.” See Readers’s Digest Ass’n v. Superior Court, 37 Cal. 3d 244, 265 (Cal. 1984); Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002). Although the California Supreme Court has not decided the level of fault Ps who are not public figures must show, lower California courts indicate that P must show that defendants acted “negligently.” See, e.g., M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (Cal. Ct. App. 2001). For more information on possible levels of fault in claims for published falsehoods, see the section on Actual Malice and Negligence in this guide.
Privileges and Defenses
Opinion
A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for a negative opinion. Of course, distinguishing facts and opinions can be difficult.
Parody
You will not be held liable for casting P in a false light if the false statement of fact in question is in a context the average reader would understand is a parody. See San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal. App. 4th 655, 21 Media L. Rep. 1791 (1993). In San Francisco Bay Guardian, the court held that a newspaper would not be held liable for statements in its April Fool’s Day section suggesting that a landlord gave his tenants electroshock therapy because a reasonable reader would understand them as parody.
In California, the elements of
a publications of private facts claim are:
(1) Public Disclosure;
(2) of a Private Fact;
(3) which would be Offensive and Objectionable to the Reasonable Person; and
(4) which is Not of Legitimate Public Concern.
California is notable for also requiring a plaintiff to show that
the defendant published private facts “with reckless disregard for the fact that reasonable men would find the invasion highly offensive.” Briscoe v. Reader’s Digest Association, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004).
This requirement gives you extra protection against a private facts claim. It means that a plaintiff must show more than that you were simply wrong in believing publication of the facts in question was not offensive; the plaintiff must show that you entertained serious doubts about its offensiveness and decided to publish the facts in question anyway. In a court, this would involve examination of your state of mind at the time of the publication.
Under California law, the plaintiff must affirmatively prove that the facts published were not a matter of legitimate public concern; otherwise, the claim fails. The courts consider three factors when deciding whether facts are of legitimate public concern:
(1) the social value of the facts published;
(2) the depth of the intrusion into ostensibly private affairs; and
(3) the extent to which the plaintiff voluntarily assumed a position of public notoriety.
Most facts about celebrities and public officials are considered matters of legitimate public concern. Private facts about ordinary people involved in events or occurrences of public significance are of legitimate public concern if they bear a reasonable relationship to the newsworthy topic.
Courts applying California law have found the following information, among other things, to be newsworthy (i.e., of legitimate public concern):
- publication of an actress’s address;
- photos showing potential abuse of military prisoners;
- reports of recent crimes (but not necessarily including names of witnesses and victims);
- facts surrounding the disappearance of a man believed to have been murdered by the Manson family, and the fact that the plaintiff was the last person to see him alive;
- the sexual orientation of a man who helped thwart an assassination attempt on President Ford;
- the name of a young woman who had kept her pregnancy secret, given birth, and asked her brother (also named) to abandon the baby at a hospital under false pretenses;
- images of automobile accident victims being rescued and treated; and
- information and records reflecting misconduct by the children of a candidate for public office.
In contrast, courts applying California law have found the following things, among others, to be potentially Non-newsworthy:
- the fact that the first female student body president of a college was a transsexual;
- embarrassing stories from a prominent body surfer’s personal history;
- the name of a woman who had discovered her murdered roommate and seen the murder suspect in her apartment, when the suspect was still at large; and
- the identity of a participant in the federal witness protection program.
Hamberger v. Eastman
Rule
Hamberger v. Eastman
New Hampshire Supreme Court
206 A.2d 239 (1964)
Rule of Law
An action in tort exists for an unreasonable and serious interference with another’s physical and mental solitude or seclusion.
Facts
Hamberger and his wife (plaintiffs) rented a house from Eastman (defendant). Eastman’s house was directly adjacent to Hamberger’s house. Unbeknownst to Hamberger, Eastman had placed an audio recording device in Hamberger’s bedroom. For nearly a year, Eastman listened and recorded the Hambergers’ conversations and intimate activities. After finding the recording device, Hamberger became greatly distressed, humiliated, embarrassed, and sustained mental suffering which impaired his mental and physical condition. Hamberger brought suit against Eastman for invasion of privacy. Eastman moved to dismiss the complaint for failure to state a claim. The trial court reserved judgment on the issue and transferred the case to the New Hampshire Supreme Court for review.
Issue
Does an action in tort exist for an unreasonable and serious interference with another’s physical and mental solitude or seclusion?
Holding and Reasoning (Kenison, C.J.)
Yes. There is no state statute or previous legal decision which supplies an action for invasion of an individual’s right of privacy. As applied to the facts of the present case, it is more accurate to determine whether an action in tort exists for intrusion upon one’s physical and mental solitude or seclusion. Intrusion into a married couple’s bedroom would be offensive to any person of ordinary sensibilities. The Restatement of Torts, § 867 provides that “a person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others . . . is liable to the other.” Liability exists only if a defendant should have known that his conduct would be offensive to persons of ordinary sensibilities. A defendant’s conduct must go beyond the limits of decency, such as where intimate details of a private individual are exposed. Eastman argues that no violation of Hamberger’s right to privacy occurred because there are no allegations that he actually listened to or overheard the conversations and other activities from Hamberger’s bedroom. However, an action for intrusion upon a person’s solitude or seclusion does not require publicity or communication to third persons and does not require anything to be published, written, printed or spoken about the claimed invasion. Certainly, a “peeping Tom” who intentionally invades a private couples’ bedroom via audio recording device in order to surreptitiously record private conversations and intimate acts has invaded the couple’s right of privacy. Here, Eastman’s invasion into the Hambergers’ solitude or seclusion is a violation of their right of privacy and constitutes a tort for which damages are recoverable.
Sidis v. F-R Publishing Corp.
Rule
Sidis v. F-R Publishing Corp.
United States Court of Appeals for the Second Circuit
113 F.2d 806 (2d Cir. 1940)
Rule of Law
A public figure may not have an action for invasion of privacy for publication of limited details of his private life, including his dress, speech, habits, and the ordinary aspects of his personality.
Facts
William James Sidis (plaintiff) was a child prodigy in mathematics. At the age of eleven, he gave a lecture on Four-Dimensional Bodies to a group of distinguished mathematics professors. At the age of sixteen, he graduated from Harvard College. Both events received significant press coverage, and Sidis was regarded as a public figure in which the general public had significant interest. After his childhood success, however, he tried to downplay his achievements and went to great lengths to live in obscurity. He lived alone in a small apartment and worked as a common clerk. In 1937, the New Yorker, a magazine published by F-R Publishing Corp (F-R) (defendant) published a story on former public figures, titled “Where Are They Now?” The article commented extensively on Sidis’ desire to remain obscure and the lengths to which he went to hide from his past as a childhood prodigy. It described his dress, manner of speaking, living accommodations, and occupation as a clerk. The article was not derogatory toward Sidis, but represented him as having a “child-like charm.” Sidis brought suit against F-R for invasion of his right of privacy, infringement of his civil rights, and malicious libel. The trial court granted F-R’s motion to dismiss on the right of privacy and civil rights claims, and Sidis appealed.
Issue
Whether an action for invasion of privacy lies for “limited scrutiny” by the press of details of the private life of a public figure.
Holding and Reasoning (Clark, J.)
No. Sidis does not have an action for invasion of privacy against F-R. A public figure may not have an action for invasion of privacy for publication of limited details of his private life. Such “limited details” which may be discussed by the press may include the public figure’s dress, speech, habits, and the ordinary aspects of his personality. Sidis became a public figure due to his status as a child prodigy and the resulting press coverage. The public clearly had an interest in his intellect and the potential promise he could achieve. The New Yorker article published years later discussed the extent to which Sidis achieved that promise, and thus was relevant to the matter of public concern which originally made Sidis a public figure. While public figures are generally free from unwelcome inquiries into their private lives, they do not enjoy “unlimited immunity” for private details. The New Yorker article’s truthful comments about Sidis’ dress, speech, habits, and personality did not cross the line of becoming an improper invasion of Sidis’ privacy. Since F-R did not invade Sidis’ privacy, Sidis also did not have an action for libel based on the article. Even if the article was published with actual malice (as is required for proving libel by public figures), its words would not be transformed into an invasion of Sidis’ right to privacy. Sidis does not have an action for invasion of privacy against F-R, and the decision of the trial court to dismiss his case is affirmed.
A plaintiff must establish four elements
to hold someone liable for
publication of private facts:
1 ) Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must “give publicity” to the fact or facts in question.
2 ) Private Fact
3 ) Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
4 ) Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.
Explain
Private Facts
A private fact is an intimate detail of one’s private life that is not generally known.
Common examples of private facts include information about medical conditions, sexual orientation and history, and financial status. It may also include things like someone’s social security or phone number, if that information is not ordinarily publicly available.
A plaintiff has no privacy interest with respect to a matter that is already public. Thus, you cannot be held liable for discussing or republishing information about someone that is already publicly available (e.g., found on the Internet or in the newspaper).
In addition, you cannot be held liable for giving publicity to a matter that the plaintiff leaves open to the public eye. For example, when the man who helped stop an assassination attempt on President Ford sued two newspapers for revealing that he was a homosexual, the court denied him relief, finding that his sexual orientation and participation in gay community activities was already widely known by hundreds of people in a variety of cities. The record showed that, prior to the publication in question, the plaintiff had frequented gay bars, participated in gay pride parades, and that his friendship with Harvey Milk (a prominent gay figure) was well-known and publicized in gay newspapers. This, in the court’s view, was sufficient to establish that the plaintiff had left his sexual orientation open to the public eye. See Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040 (Cal. Ct. App. 1984).
In another case, a stripper sued ABC for publishing private facts about her when the television show 20/20 aired a program about the allegedly illegal activities of several persons associated with the strip bar where she worked. The plaintiff appeared in a few shots of the TV program dancing nude in the background. The court held that the plaintiff did not have a valid claim for publication of private facts because her stripping activity was open to the public eye; anyone who paid the $5.00 cover charge could see her performing her work. See Puckett v. American Broad. Co., 1990 WL 170425 (6th Cir. Nov. 6, 1990).
In a more recent case, several Navy SEALs sued the Associated Press for publishing photographs of them potentially abusing Iraqi captives. The court held that the images were not private because the plaintiffs were members of the military on active duty conducting wartime operations in full uniform and chose to allow their activities to be photographed and placed on the Internet. See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 (S.D. Cal. 2005).
As the latter two cases suggest, a person’s photograph or image can be a “private fact,” but generally not when it is captured in a public or semi-public place. Therefore, you can generally publish photographs of an individual or individuals taken in public places without liability for publication of private facts.
For example, in Gilbert v. Hearst Pub. Co., 253 P.2d 441(Cal. 1953), the court held that a newspaper was not liable for invasion of privacy through publication of private facts when it published a photograph of a couple kissing at the farmer’s market in San Francisco. Note, however, that publishing photographs of other people, even if taken in public, may result in liability for unauthorized use of name or likeness. See Using the Name or Likeness of Another for details. And, if you intrude into a private place in order to photograph or record someone, you could be held liable for intrusion. See Gathering Private Information for details.
The Florida Star v. B.J.F.
The Florida Star v. B.J.F.
United States Supreme Court
491 U.S. 524 (1989)
Rule of Law
Information about a matter of public significance lawfully obtained by, and published by, a newspaper enjoys First Amendment protection, absent a need to further a state interest of the highest order.
Facts
B.J.F. (plaintiff) reported to the county sheriff’s department (defendant) that she had been raped and robbed by an unknown person. The official report prepared by the department contained the full name of B.J.F. and was put in the press room, where it was seen by a reporter for The Florida Star (defendant). The reporter published the report, including B.J.F.’s name, in the newspaper. B.J.F. sued the sheriff’s department and The Florida Star for violation of state statute § 794.03 which made it unlawful to “print, publish, or broadcast…in any instrument of mass communication” the name of a rape victim. B.J.F. settled out of court with the sheriff’s department for $2,500 and a jury found The Florida Star liable under the state law in the amount of $75,000 in compensatory damages and $25,000 in punitive damages. The appellate court affirmed the trial court judgment and The Florida Star appealed. The Florida Supreme Court denied review and the U.S. Supreme Court granted certiorari to review.
Issue
Does information about a matter of public significance lawfully obtained by, and published by, a newspaper enjoy First Amendment protection, absent a need to further a state interest of the highest order?
Holding and Reasoning (Marshall, J.)
Yes. Both parties rely on prior precedent for their competing arguments on appeal. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Court reversed a damages award assessed against a television station which broadcasted the name of a rape-murder victim it had obtained from courthouse records. In Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977), the Court held that a state court’s pretrial order enjoining the media from publishing the name or picture of an 11-year-old boy in connection with a juvenile proceeding was unconstitutional. In Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the Court found unconstitutional a state statute which made it illegal for a newspaper to publish, without prior approval from a juvenile court, the name of any youth charged as a juvenile offender. Here, imposing damages upon The Florida Star for publishing B.J.F.’s name violates the First Amendment in line with the Court’s holding in Daily Mail. There, the Court held “[i]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication absent of the information absent a need to further a state interest of the highest order.” B.J.F. argues that three related interests warrant punishment of the publication of sexual assault victims’ names, namely the privacy of those victims, the physical safety of those victims who may be a target for retaliation, and the goal of encouraging victims to report such assaults without fear of exposure. While there may be an occasion in the future to impose liability for publication of a rape victim, the circumstances here do not warrant liability. First, if a government agency, such as a sheriff’s department, provides information to the media, it is appropriate to assume that the department had the means, but failed, to protect against its dissemination. Second, § 794.03 does not require case-specific findings of fact that a disclosure regarding a fact of a person’s life would be highly offensive to a reasonable person. Instead, the statute is automatically invoked once the information is published, regardless of whether the identity of the victim is already known in the community. Moreover, there is no “intent” requirement placed within the statute. Finally, there is serious doubt that the State of Florida is serving the significant interests of individuals in B.J.F.’s position. The statute only prohibits publication of a sexual assault victim’s identity if it appears in an “instrument of mass communication,” a term undefined in the statute. Thus, B.J.F.’s name would not have been covered if her identity had been disseminated by other means. If a state attempts to punish the truthful publication in the name of privacy, it must demonstrate its intent to advance this interest by evenly applying the prohibition across the broad spectrum of the media, from the smallest newspaper to the largest media giant. The judgment of the trial court is reversed.
Dissent (White, J.)
The majority’s reliance upon the three prior cases is misplaced. None of those cases requires the harsh outcome reached in this case. Cox Broadcastingstands for the proposition that the State cannot make the press its first line of defense in withholding private information from the public. Rather, the State should undertake the means itself to prevent such dissemination. In this case the State has undertaken “means which avoid [but obviously, not altogether prevent] public documentation or other exposure of private information.” There is no public interest in publishing the names, addresses, and phone numbers of persons who are the victims of crime and no public interest in immunizing the press from liability in the rare cases where a State’s efforts to protect a victim’s privacy have failed.
In ________ the Court extended the application of the actual malice rule to actions alleging that a plaintiff’s privacy had been invaded by “false reports of matters of public interest.”
In 1974 the Court held in Gertz v. Robert Welch, Inc. that private plaintiffs did not have to prove actual malice to recover damages in defamation suits, even if the publication at issue concerned matters of public interest. Since then, the courts have divided over the question of whether Gertz put limits on the holding in _________ or whether defendants in false-light privacy actions should receive greater constitutional protection than defendants in defamation actions.
Time, Inc. v. Hill
United States Supreme Court
385 U.S. 374 (1967)
Rule of Law
To recover damages for false reports on matters of public interest, a private plaintiff must prove that the defendant published the report about the plaintiff with knowledge of its falsity or reckless disregard of the truth.
Facts
In 1952, James Hill (plaintiff) and his wife and five children were held hostage in their home for nineteen hours by three escaped convicts. The convicts ultimately released the Hill family unharmed. The story gained significant press, however, after the police subsequently killed two of the convicts and captured the third. In 1955, a magazine owned by Time, Inc. (Time) (defendant) published an article which mentioned a new Broadway play coming out. The play was titled “The Desperate Hours” and purportedly chronicled the experience of Hill and his family. However, scenes from the play contained factual inaccuracies about the conduct of the Hill family during their captivity. Hill brought suit against Time on the ground that the article portrayed his family in a “false and untrue” manner. The jury awarded Hill $50,000 in actual damages and $25,000 in punitive damages. The Court of Appeals of New York affirmed on the ground that Time’s fictionalized account of Hill’s life, and its unauthorized use in the article, were not protected by the “newsworthiness” defense. The United States Supreme Court granted certiorari.
Issue
Whether a private plaintiff may receive damages for false reports of matters of public interest without proving that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.
Holding and Reasoning (Brennan, J.)
No. Hill has not shown Time published the article about him with knowledge of falsity or reckless disregard of the truth. To recover damages for false reports on matters of public interest, a private plaintiff must prove that the defendant published the report about the plaintiff with knowledge of its falsity or reckless disregard of the truth. This rigorous burden of proof for plaintiffs is necessary to respect the strong constitutional protections for speech and press in the First and Fourteenth Amendments to the United States Constitution. To permit damages for every innocent or even negligent publication of untrue facts would overly constrain the press and prevent them from exercising their constitutional right to report on matters of public interest and concern. The record developed at trial would support a conclusion by a reasonable jury that either Time acted innocently or negligently in misstating facts about Hill’s experience, or that it portrayed the play about Hill with reckless disregard of the truth or with actual knowledge that the play’s portrayal of Hill was false. As only the second conclusion will give rise to damages, the case is reversed and remanded for further consideration by a jury of this issue. Hill has not conclusively shown Time published the article about him with knowledge of falsity or reckless disregard of the truth, and thus the decision of the New York Court of Appeals is reversed and remanded.
Concurrence (Douglas, J.)
The matter of Hill’s captivity had been in the news for a long time and was thus a significant part of the public domain. Once a private matter is that much a part of the public domain, the private individual implicated in the matter ceases to retain a right of privacy.
Dissent (Fortas, J.)
The trial court gave sufficient instructions about the requirement for Hill to prove “knowing and reckless falsity” to make a reversal arbitrary and unjustified. There is no reason to revisit the record at trial.
California: False Light
P can sue for false light when something highly offensive is implied to be true about P that is actually false.
False light in California is different from defamation. While defamation concerns statements that are actually false, false light is about false implications.
The difference between defamation and false light can be illustrated by Gill v. Curtis Publishing Co., 239 P.2d 630 (Cal. 1952), the case that established false light in California. In Gill, the “Ladies Home Journal” published an article criticizing “love at first sight” as being based on nothing more than sexual attraction. The author said such love was “wrong” and would lead to divorce. The article featured a photo of a couple, with the caption, “[p]ublicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The couple, who did not know the photo had been taken, sued. Although the journal did not actually say the couple was engaged in the “wrong” kind of love, the implication was clearly there. The couple won by proving the magazine created a false impression of them.
Elements of a False Light Claim
Falsehood
P must show that the D implied something false. For instance, in Gill, discussed above, the photograph created the false impression that the couple was behaving wrongly in love. Similarly, in Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002), the court found that having an actor’s photo on the cover of Playgirl magazine, in combination with the magazine’s headlines, could create the false impression that nude photos of the actor appeared inside.
On the other hand, when there is no false implication of fact, the claim will not succeed. True statements are not actionable. Moreover, when the context shows that the writer is using “rhetorical hyperbole” and “imaginative expression” that “cannot be read to imply the assertion of an objective fact,” the plaintiff’s claim will fail. See Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir. 1995).
It is important to distinguish the types of falsehoods appropriate for a false light claim versus a defamation claim. As discussed above, defamation concerns false statements of fact, while false light concerns false implications. Ps generally cannot sue for both at the same time about the same statement. When a plaintiff sues for both defamation and false light, and the suit basically concerns a false statement of fact, the court will dismiss the false light claim as superfluous. See, e.g., McClatchy Newspapers, Inc. v. Superior Court, 189 Cal. App. 3d 961, 13 Media L. Rep. 2281 (Cal. Ct. App. 1987);see also “Single Publilcation Rule,” Cal. Civil. Code. § 3425.3 (prohibiting more than one cause of action concerning a false statement for the same publication).
Offensiveness
For P to win, the statement must do more than create a false impression. The false impression that is created must be “highly offensive to a reasonable person.” Fellow v. Nat’l Enquirer, Inc., 32 Cal. 3d 234, 238, 13 Media L. Rep. 1305 (Cal. 1986) (quoting Restatement 2d of Torts § 652E). In other words, it is not enough that the P is offended; it must be reasonable to take offense.
Identification of Plaintiff
The falsehood in question must sufficiently identify P. California courts generally do not require P to be identified by name. For instance, cases such as Gill, discussed above, concern photographs.
Public Disclosure
P must show that D publicly disclosed the falsehood concerning them. While this basic requirement is clear, its application is not – courts go back and forth on how many people must receive the information for it to be “publicly disclosed.” It is safe to say that publishing on the Internet for the whole world to see is public disclosure, and it probably safe to say that privately telling one person is not public disclosure; but it is hard to define the requirement any further.
Fault
P must also show that the false implication occurred due to the defendant’s fault. If the plaintiff is a public figure, then the plaintiff must show that the defendant acted with “actual malice.” See Readers’s Digest Ass’n v. Superior Court, 37 Cal. 3d 244, 265 (Cal. 1984); Solano v. Playgirl, Inc., 292 F.3d 1078 (9th Cir. 2002). Although the California Supreme Court has not decided the level of fault Ps who are not public figures must show, lower California courts indicate that P must show that defendants acted “negligently.” See, e.g., M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (Cal. Ct. App. 2001). For more information on possible levels of fault in claims for published falsehoods, see the section on Actual Malice and Negligence in this guide.
Privileges and Defenses
Opinion
A false light claim must be based on the implication of a false fact. Opinions are constitutionally protected, and you will not be held liable under a false light claim for a negative opinion. Of course, distinguishing facts and opinions can be difficult.
Parody
You will not be held liable for casting P in a false light if the false statement of fact in question is in a context the average reader would understand is a parody. See San Francisco Bay Guardian, Inc. v. Superior Court, 17 Cal. App. 4th 655, 21 Media L. Rep. 1791 (1993). In San Francisco Bay Guardian, the court held that a newspaper would not be held liable for statements in its April Fool’s Day section suggesting that a landlord gave his tenants electroshock therapy because a reasonable reader would understand them as parody.
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 491 (1975)
Generally speaking, a false light claim
requires the following:
(elements)
1 ) The defendant published the information widely (i.e., not to just a single person, as in defamation);
2 ) the publication identifies the plaintiff;
3 ) it places the plaintiff in a “false light” that would be highly offensive to a reasonable person; and
4 ) the defendant was at fault in publishing the information.
Some states, including California, hold that unlike defamation, false light concerns untrue implications rather than directly false statements.
For instance, an article about sex offenders illustrated with a stock photograph of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim.
Case
Rule
Employees have a limited expectation of privacy in conversations they have in their office in that they will not be secretly videotaped by television reporters, even though the conversations may not have been completely private from other employees.
Sanders v. American Broadcasting Companies, Inc., et al.
Supreme Court of California
978 P.2d 67 (Cal. 1999)
Rule of Law
Employees have a limited expectation of privacy in conversations they have in their office in that they will not be secretly videotaped by television reporters, even though the conversations may not have been completely private from other employees.
Facts
Stacy Lescht, a reporter for the American Broadcasting Companies (ABC) (defendants), got hired as a telepsychic with the Psychic Marketing Group (PMG) for reporting purposes. While she was employed there, she wore a hidden video camera on her hat and a microphone. The camera and microphone recorded two conversations of a “relatively discrete nature” Lescht had with Mark Sanders (plaintiff), another PMG employee. The conversations took place in open cubicles in the PMG office and could likely be overheard by other PMG employees walking by or in nearby cubicles. Sanders brought a suit for invasion of privacy by intrusion. The jury found in favor of Sanders. The court of appeal reversed, finding that Sanders had no reasonable expectation of privacy in his office conversations because others in the shared office could overhear the conversations. Sanders appealed.
Issue
Do employees have an expectation of privacy in conversations they have in their office in that the conversations will not be secretly videotaped by television reporters even though the conversations may not have been completely private from other employees?
Holding and Reasoning (Werdegar, J.)
Yes. Employees have a limited expectation of privacy in conversations they have in their office in that the conversations will not be secretly videotaped by television reporters even though the conversations may not have been completely private from other employees. Whether that expectation of privacy is violated depends on the nature of the recording and other surrounding circumstances. Office conversations are generally not completely private and so do not warrant an absolute expectation of privacy. However, because such conversations are reasonably protected from dissemination to the general public, they deserve a limited expectation of privacy. This expectation of privacy includes protection from secret video or tape recordings by reporters. Such recordings can be disseminated to the general public and take from the speaker a “right to control the nature and extent of the firsthand dissemination of his statements.” In the present case, Lescht posed as a fellow employee of Sanders and by doing so got him to open up about a delicate issue and recorded that conversation mechanically. Even though fellow employees in nearby cubicles may have heard the conversation, the recording by a reporter still violated Sanders’s limited expectation of privacy in his office conversation. The court of appeal is reversed and the case is remanded for a determination on the other element of the intrusion tort.
Sidis v. F-R Publishing Corp.
Rule
Sidis v. F-R Publishing Corp.
United States Court of Appeals for the Second Circuit
113 F.2d 806 (2d Cir. 1940)
Rule of Law
A public figure may not have an action for invasion of privacy for publication of limited details of his private life, including his dress, speech, habits, and the ordinary aspects of his personality.
Facts
William James Sidis (plaintiff) was a child prodigy in mathematics. At the age of eleven, he gave a lecture on Four-Dimensional Bodies to a group of distinguished mathematics professors. At the age of sixteen, he graduated from Harvard College. Both events received significant press coverage, and Sidis was regarded as a public figure in which the general public had significant interest. After his childhood success, however, he tried to downplay his achievements and went to great lengths to live in obscurity. He lived alone in a small apartment and worked as a common clerk. In 1937, the New Yorker, a magazine published by F-R Publishing Corp (F-R) (defendant) published a story on former public figures, titled “Where Are They Now?” The article commented extensively on Sidis’ desire to remain obscure and the lengths to which he went to hide from his past as a childhood prodigy. It described his dress, manner of speaking, living accommodations, and occupation as a clerk. The article was not derogatory toward Sidis, but represented him as having a “child-like charm.” Sidis brought suit against F-R for invasion of his right of privacy, infringement of his civil rights, and malicious libel. The trial court granted F-R’s motion to dismiss on the right of privacy and civil rights claims, and Sidis appealed.
Issue
Whether an action for invasion of privacy lies for “limited scrutiny” by the press of details of the private life of a public figure.
Holding and Reasoning (Clark, J.)
No. Sidis does not have an action for invasion of privacy against F-R. A public figure may not have an action for invasion of privacy for publication of limited details of his private life. Such “limited details” which may be discussed by the press may include the public figure’s dress, speech, habits, and the ordinary aspects of his personality. Sidis became a public figure due to his status as a child prodigy and the resulting press coverage. The public clearly had an interest in his intellect and the potential promise he could achieve. The New Yorker article published years later discussed the extent to which Sidis achieved that promise, and thus was relevant to the matter of public concern which originally made Sidis a public figure. While public figures are generally free from unwelcome inquiries into their private lives, they do not enjoy “unlimited immunity” for private details. The New Yorker article’s truthful comments about Sidis’ dress, speech, habits, and personality did not cross the line of becoming an improper invasion of Sidis’ privacy. Since F-R did not invade Sidis’ privacy, Sidis also did not have an action for libel based on the article. Even if the article was published with actual malice (as is required for proving libel by public figures), its words would not be transformed into an invasion of Sidis’ right to privacy. Sidis does not have an action for invasion of privacy against F-R, and the decision of the trial court to dismiss his case is affirmed.
The statute of limitations in California
for publication of private facts claims is
not entirely clear
A number of California court decisions applying California law have held that the one-year statute of limitations for libel actions applies to claims for invasion of privacy, which includes claims for publication of private facts. The statute of limitations for libel actions is found at Cal. Civ. Proc. Code § 340.
Several historic torts, such as trespass to land, act to protect privacy interests, but it was not until the twentieth century that courts began to recognize actions based specifically on a right of privacy.
Indeed, a single law review article by _______ and Samuel D. Warren, entitled __________ is generally credited with significant influence in prompting ultimate judicial acceptance of the tort.
The Restatement has defined four separate torts for invasion of privacy: intrusion upon seclusion, appropriation of plaintiff’s name or picture, placing the plaintiff in a false light before the public, and public disclosure of private facts. All four privacy torts enjoy general judicial acceptance today. Each of the four privacy torts poses substantial, but distinct, policy concerns.
Louis D. Brandeis
The Right of Privacy
The tort of Intrusion Upon Seclusion addresses acts of
intrusion and other interferences with a victim’s…
Zone of Privacy
A classic instance of such intrusion is the placing of a microphone under the matrimonial mattress. There is no requirement that information be obtained or communicated; it is the intrusion itself that constitutes the interference. While such interference may also constitute trespass, there is no requirement that trespass be committed. For example, the intrusion may be spying through high powered binoculars into an area the victim rightly could expect to be private. There is also no requirement that the victim be aware of the intrusion, although constant disturbance, such as the incessant following and photographing of a celebrity, can lead to liability based on interfering with the victim’s tranquility.
Liability for intrusion upon seclusion can be imposed even if the information obtained proves to be in the public interest by, for example, revealing illegality or public corruption. In Pearson v. Dodd, a columnist escaped liability for searches conducted by others of a U.S. Senator’s private office file only because it could not be proven that the columnist had instigated the search, despite evidence of official corruption.
In another notable case, Life magazine was held liable, because its reporter used a hidden microphone while posing as a patient for an alleged faith healer in the healer’s living room.
More recently, the California Supreme Court held ABC could be subject to a claim of intrusion upon seclusion for arranging for its reporter to get a job as a telepsychic and then having the reporter surreptitiously videotape conversations with co-employees in their shared office space. Such cases illustrate the potential application of the tort to investigative journalism.
In a cause of action for
public disclosure of private fact,
a plaintiff must prove that the information disseminated involved
(elements)
(1) public disclosure,
(2) of a private fact,
(3) which would be offensive and objectionable to a reasonable person and
(4) which is not of legitimate public concern.
- Diaz v. Oakland Tribune, Inc.
Case
Rule
Information about a matter of public significance lawfully obtained by, and published by, a newspaper enjoys First Amendment protection, absent a need to further a state interest of the highest order.
The Florida Star v. B.J.F.
United States Supreme Court
491 U.S. 524 (1989)
Rule of Law
Information about a matter of public significance lawfully obtained by, and published by, a newspaper enjoys First Amendment protection, absent a need to further a state interest of the highest order.
Facts
B.J.F. (plaintiff) reported to the county sheriff’s department (defendant) that she had been raped and robbed by an unknown person. The official report prepared by the department contained the full name of B.J.F. and was put in the press room, where it was seen by a reporter for The Florida Star (defendant). The reporter published the report, including B.J.F.’s name, in the newspaper. B.J.F. sued the sheriff’s department and The Florida Star for violation of state statute § 794.03 which made it unlawful to “print, publish, or broadcast…in any instrument of mass communication” the name of a rape victim. B.J.F. settled out of court with the sheriff’s department for $2,500 and a jury found The Florida Star liable under the state law in the amount of $75,000 in compensatory damages and $25,000 in punitive damages. The appellate court affirmed the trial court judgment and The Florida Star appealed. The Florida Supreme Court denied review and the U.S. Supreme Court granted certiorari to review.
Issue
Does information about a matter of public significance lawfully obtained by, and published by, a newspaper enjoy First Amendment protection, absent a need to further a state interest of the highest order?
Holding and Reasoning (Marshall, J.)
Yes. Both parties rely on prior precedent for their competing arguments on appeal. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Court reversed a damages award assessed against a television station which broadcasted the name of a rape-murder victim it had obtained from courthouse records. In Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U.S. 308 (1977), the Court held that a state court’s pretrial order enjoining the media from publishing the name or picture of an 11-year-old boy in connection with a juvenile proceeding was unconstitutional. In Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the Court found unconstitutional a state statute which made it illegal for a newspaper to publish, without prior approval from a juvenile court, the name of any youth charged as a juvenile offender. Here, imposing damages upon The Florida Star for publishing B.J.F.’s name violates the First Amendment in line with the Court’s holding in Daily Mail. There, the Court held “[i]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication absent of the information absent a need to further a state interest of the highest order.” B.J.F. argues that three related interests warrant punishment of the publication of sexual assault victims’ names, namely the privacy of those victims, the physical safety of those victims who may be a target for retaliation, and the goal of encouraging victims to report such assaults without fear of exposure. While there may be an occasion in the future to impose liability for publication of a rape victim, the circumstances here do not warrant liability. First, if a government agency, such as a sheriff’s department, provides information to the media, it is appropriate to assume that the department had the means, but failed, to protect against its dissemination. Second, § 794.03 does not require case-specific findings of fact that a disclosure regarding a fact of a person’s life would be highly offensive to a reasonable person. Instead, the statute is automatically invoked once the information is published, regardless of whether the identity of the victim is already known in the community. Moreover, there is no “intent” requirement placed within the statute. Finally, there is serious doubt that the State of Florida is serving the significant interests of individuals in B.J.F.’s position. The statute only prohibits publication of a sexual assault victim’s identity if it appears in an “instrument of mass communication,” a term undefined in the statute. Thus, B.J.F.’s name would not have been covered if her identity had been disseminated by other means. If a state attempts to punish the truthful publication in the name of privacy, it must demonstrate its intent to advance this interest by evenly applying the prohibition across the broad spectrum of the media, from the smallest newspaper to the largest media giant. The judgment of the trial court is reversed.
Dissent (White, J.)
The majority’s reliance upon the three prior cases is misplaced. None of those cases requires the harsh outcome reached in this case. Cox Broadcastingstands for the proposition that the State cannot make the press its first line of defense in withholding private information from the public. Rather, the State should undertake the means itself to prevent such dissemination. In this case the State has undertaken “means which avoid [but obviously, not altogether prevent] public documentation or other exposure of private information.” There is no public interest in publishing the names, addresses, and phone numbers of persons who are the victims of crime and no public interest in immunizing the press from liability in the rare cases where a State’s efforts to protect a victim’s privacy have failed.
Nader v. General Motors Corp.
Rule
Nader v. General Motors Corp.
Court of Appeals of New York
255 N.E.2d 765 (N.Y. 1970)
Rule of Law
To sustain a cause of action for invasion of privacy, a plaintiff must show that the defendant’s conduct is truly “intrusive” and designed to elicit information which would not be available through normal inquiry or observation.
Facts
Nader (plaintiff) is an author and lecturer on automotive safety who sharply criticized General Motors Corp. (GM) (defendant) for years over the safety and design of its products. Nader planned to publish a book detailing his criticisms. GM learned of the imminent publication of the book, and planned a campaign against him to suppress his criticism and prevent his disclosure of information about GM’s products. As part of this campaign, Nader alleged GM questioned his friends, relatives and acquaintances about highly personal and unflattering matters, kept him under surveillance in public places for an unreasonable amount of time, cause him to be trapped by women into engaging in sexual intercourse, made threatening and harassing phone calls to him, tapped his telephone and eavesdropped, and conducted a “continuing” and harassing investigation of him. Nader brought suit against GM for the tort of invasion of privacy. The trial court granted GM’s motion to dismiss on all but the first two counts of Nader’s complaint involving alleged invasion of privacy. GM appealed.
Issue
Whether, to sustain a cause of action for invasion of privacy, a plaintiff must show that the defendant’s conduct is truly “intrusive.”
Holding and Reasoning (Fuld, C.J.)
Yes. While not all accusations in Nader’s first two counts constitute invasion of privacy by GM, some may and thus the decision of the lower court is affirmed. To sustain a cause of action for invasion of privacy, a plaintiff must show that the defendant’s conduct is truly “intrusive” and designed to elicit information which would not be available through normal inquiry or observation. The mere gathering of information about a particular individual does not give rise to a cause of action under this theory. Privacy is invaded only if the information sought is of a confidential nature and the defendant’s conduct is unreasonably intrusive. Finally, there can be no invasion of privacy where the information sought is open to public view or has been voluntarily revealed to others. There is no basis for a claim of invasion of privacy in most of Nader’s two counts, as the activities alleged do not constitute truly “intrusive” acts by GM. For example, GM’s act of conducting interviews did not invade Nader’s privacy, even though the questions asked may have involved personal information. This is because information which was already known by others could not be regarded as private to Nader. Additionally, Nader’s allegations that GM used women to lure him into illicit sexual relationships and made harassing phone calls to him could not be characterized as an intrusion for the purpose of gathering information of a private and confidential nature. If Nader felt he was harmed by these activities, he should have brought a tort action for intentional infliction of emotional distress, rather than for invasion of privacy. However, Nader’s allegations that GM wiretapped his phone and eavesdropped on his private telephone conversations, as well as kept him under surveillance in a public place for an unreasonable amount of time, do amount to truly “intrusive” behavior by GM for the purpose of learning private information about Nader. Nader certainly did not intend the public to gain access to his private telephone conversations, and all his actions did not automatically become public simply because they were performed by him while being in a public place. This conclusion would be different if Nader acted in a way that would reveal this private information to even a casual observer. However, he did not act in such a manner and thus GM’s actions meet the test for an invasion of Nader’s privacy. The decision of the lower court upholding the first two counts of Nader’s complaint is affirmed.
Concurrence (Breitel, J.)
It is inappropriate for the majority to decide that some claims within Nader’s cause of action for invasion of privacy would be more appropriately brought as claims for intentional infliction of mental distress.
Consent as a Defense to
Publication of a Private Fact
in California
California recognizes consent as a defense to a publication of private facts claim. California courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in California is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject’s parent(s) or guardian. See thegeneral description for a more detailed discussion of release forms.
Solano v. Playgirl, Inc.
’
Solano v. Playgirl, Inc.
9th Cir. 2002
292 F.3d 1078, 30 Med.
Rule
To prevail on a false light claim, a Public Figure Plaintiff must show
(1) Defendant disclosed to one or more persons information about or concerning plaintiff that was presented as factual but that was actually false or created a false impression about him,
(2) the information was understood by one or more persons to whom is was disclosed as stating or implying something highly offensive that would have a tendency to injure plaintiff’s reputation,
(3) by clear and convincing evidence, Defendant acted with constitutional malice, that is knowingly or recklessly created this false impression.
(4) the plaintiff was damaged by the disclosure.
Facts
The January 1999 issue of Playgirl magazine featured a cover photograph of actor Jose Solano, best known for his role as Manny Gutierrez on the television show Baywatch from 1996 to 1999. Solano did not pose for or give an interview to Playgirl, nor did he consent to using his image, nor did he appear nude in the magazine. Solano was shown shirtless and wearing his red lifeguard trunks, and surrounding him on the front cover were suggestive, offensive headlines and phrases describing the contents of the magazine. This conveyed the message that Solano was not the wholesome person he claimed to be and indicated that we was washed up and had to sell himself naked to the magazine. Inside the magazine on page 21 was quarter-page head and shoulders photo of him fully clothed, accompanied by a profile on him. Significantly, Playgirl displays its magazines on newsstands packaged in plastic wrap so that ideally the cover cannot be seen unless a customer purchases it. He sued Playgirl for false light, alleging that it deliberately created the impression that he gave permission to Playgirl, making it appear that he was willing to degrade himself and endorse the magazine.
Issue
Whether Playgirl committed the tort of false light by publishing Solano’s picture on the cover coupled with degrading and offensive headlines and phrases describing the content of the magazine.
Held
Yes. To prevail on a false light claim, the plaintiff must show (1) Defendant disclosed to one or more persons information about or concerning Solano that was presented as factual but that was actually false or created a false impression about him, (2) the information was understood by one or more persons to whom is was disclosed as stating or implying something highly offensive. That would have a tendency to injure plaintiff’s reputation, (3) by clear and convincing evidence, Defendant acted with constitutional malice, and (4) the plaintiff was damaged by the disclosure. In addition, plaintiffs who are public figures or officials must also show that the Defendant knowingly or recklessly created the false impression. The court found that Solano met all criteria for establishing a false light claim. Evidence that some editors had been worried about the possible false impression was sufficient to satisfy the last requirement. Solano established damages by showing he was embarrassed.
Discussion
Some courts have rejected the false light claim, arguing that it largely duplicates defamation claims or raises free speech problems.
