Privacy Flashcards
1) APPROPRIATION Tort
It is illegal to appropriate an individual’s name or likeness for commercial or trade purposes without consent.
Incidental use, news/info v. entertainment
▪ Includes right of privacy: a personal right.
▪ Includes right of publicity: a property right (White)
APPROPRIATION: Comedy III Inc. v. Gary Saderup Inc. (2001)
no
APPROPRIATION: Messenger v. Gruner + Jahr Printing and Publishing (2000)
14 year old Florida girl posed for a a series of pictures that she believed would appear in young and modern. The photos appeared in the mag but not in the way she was expecting. They were published as part of a story about a young letter writer about her party sex experience. She alleged the photos were published for commercial purposes but the NY court of appeals disagreed. The article was newsworthy and not an advertisement in disguise.
APPROPRIATION: Preston v. Martin Bregman Productions, Inc. (1991)
Permitted the use of a fleeting or brief use of an individual’s name or likeness in some kinds of commercial creations. Penalizing every unauthorized use, no matter how insignificant or fleeting, of a person’s name or likeness would impose undue burdens on expressive activity.
APPROPRIATION: Booth v. Curtis Publishing Co. (1962)
The 1st Amendment protected Holiday magazine from publishing advertisements of a picture of Shirley Booth in a feature story the magazine had previously published. A magazine or newspaper must be able to promote itself.
APPROPRIATION: Time, Inc. v. Hill (1967)
1st Amendment protection
INTRUSION: U.S. v. Charbonneau (1997)
Intrusion doesn’t apply in this case. Charbonneau sent child porn in an online chat room and it happened to go to a federal agent. An e-mail message, like a letter, cannot be afforded a reasonable expectation of privacy once that message is received. Chat rooms don’t afford any reasonable expectation of privacy.
INTRUSION: Deteresa v. American Broadcasting Co., Inc. (1997)
A federal appeals court ruled that a woman who was photographed talking with a producer as she stood at the front door of her home did not enjoy a reasonable expectation of privacy. The court noted she was standing in plain sight of anyone passing on the street.
INTRUSION: Webb v. CBS Broadcasting, Inc. (2011)
A reporter and a videographer for CBS news obtained permission from the neighbor of the plaintiffs (Jill and Robert Webb) to bring a video camera, which had a zoom lens, into the neighbor’s home and to set up the camera in front of one of the kitchen windows on the first floor.
From that vantage point, the CBS journalists were able to videotape footage of the plaintiffs near their swimming pool in their backyard. IN holding that the plaintiffs did not have a reasonable expectation of privacy, the court wrote the “backyard is visible to the naked eye from the first-floor windows of the neighbor’s house and that when objects are in plain view there is not legitimate expectation of privacy. The backyard was also visible to the public from many vantage points. The Webbs lost their case because they simply were not in a place that a reasonable person would have believed to have been secluded.
INTRUSION: Webb v. CBS Broadcasting, Inc. (2011)
A reporter and a videographer for CBS news obtained permission from the neighbor of the plaintiffs (Jill and Robert Webb) to bring a video camera, which had a zoom lens, into the neighbor’s home and to set up the camera in front of one of the kitchen windows on the first floor.
From that vantage point, the CBS journalists were able to videotape footage of the plaintiffs near their swimming pool in their backyard. In holding that the plaintiffs did not have a reasonable expectation of privacy, the court wrote the “backyard is visible to the naked eye from the first-floor windows of the neighbor’s house and that when objects are in plain view there is not legitimate expectation of privacy. The backyard was also visible to the public from many vantage points. The Webbs lost their case because they simply were not in a place that a reasonable person would have believed to have been secluded.
INTRUSION: Bartnicki v. Vopper (2001)
Intrusion and publication of information obtained illegally. A broadcast by a radio station of an audiotape recording of a cell phone conversation between two officials of a teachers’ union. Not-so veiled threats were made during the conversation against local school board members.
INTRUSION: Bartnicki v. Vopper (2001)
Intrusion and publication of information obtained illegally. A broadcast by a radio station of an audiotape recording of a cell phone conversation between two officials of a teachers’ union. Not-so veiled threats were made during the conversation against local school board members. The conversation was illegally intercepted and taped by unknown persons and then distributed to the local press. The two union officials brought suit under the federal wiretap statue, which makes it a violation for anyone to disclose the contents of an illegally intercepted communication. The supreme court decided the press may freely publish 1) truthful material, 2) about matters of public significance, 3) that it has lawfully obtained, even if from a source who obtained it unlawfully, 4) unless the government can demonstrate an interest of the highest order.
3) PUBLICITY OF PRIVATE FACTS Tort
It is illegal to publicize private information about a person if the information is highly offensive to a reasonable person and is not of legitimate public concern.
Remember, the first two prongs are in the title. No public/private dichotomy exists, as in libel law but the dichotomy can help determine newsworthiness.
1) There was Publicity
2) Of PRIVATE FACTS (the plaintiff must show that the information is indeed private, i.e., not a part of the public record)
3) These facts would be considered “highly offensive” to a “reasonable person”
4) The private facts are NOT of legitimate public concern. Virgil v. Time—Relevancy Test: Remember, to fully prove this fourth prong, you have to apply/consider the Virgil relevancy test—is the private information “newsworthy”—relevant to overall story and of interest to the public
PUBLICITY OF PRIVATE FACTS: Cox Broadcasting v. Cohn (1975)
Supreme court ruled that a privacy action against a Georgia broadcasting station for publishing the name of a rape victim could not succeed because the victim’s identity had been included in public court documents.
PUBLICITY OF PRIVATE FACTS: Costlow v. Cuismano (1970)
Publication was protected in the publication of a story about two young children who had suffocated in an abandoned refrigerator. Even though the story was written in a sensational manner.
