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A closer look at privacy

A closer look at privacy

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A closer look at privacy

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  1. A closer look at privacy How Brandeis’s theorieshave affected media law

  2. Four types of privacy law

  3. Four types of privacy law • Commercial appropriation of name or likeness

  4. Four types of privacy law • Commercial appropriation of name or likeness • Public disclosure of embarrassing private facts

  5. Four types of privacy law • Commercial appropriation of name or likeness • Public disclosure of embarrassing private facts • False light

  6. Four types of privacy law • Commercial appropriation of name or likeness • Public disclosure of embarrassing private facts • False light • Intrusion upon physical seclusion

  7. Appropriation • Dustin Hoffman case shows there can be a fine line between commercial and editorial use

  8. Appropriation • Dustin Hoffman case shows there can be a fine line between commercial and editorial use • A magazine cover may not be protected if it doesn’t pertain to contents

  9. Not protected

  10. Protected “Bush, Cheney, and Rumsfeld”

  11. Protected • But is Warhol’s art truly transformative?

  12. Disclosure of private facts

  13. Disclosure of private facts • Embarrassing private facts

  14. Disclosure of private facts • Embarrassing private facts • Not newsworthy

  15. Disclosure of private facts • Embarrassing private facts • Not newsworthy • Highly offensive

  16. Disclosure of private facts • Embarrassing private facts • Not newsworthy • Highly offensive • To a reasonable person

  17. False light

  18. False light • “Libel Jr.”

  19. False light • “Libel Jr.” • Individual represented in a false and highly offensive manner before the public

  20. False light • “Libel Jr.” • Individual represented in a false and highly offensive manner before the public • Unlike libel, false-light claims seek compensation for personal anguish and embarrassment

  21. Intrusion

  22. Intrusion • Intentional invasion

  23. Intrusion • Intentional invasion • Of a person’s physical seclusion or private affairs

  24. Intrusion • Intentional invasion • Of a person’s physical seclusion or private affairs • In a manner that would be highly offensive

  25. Intrusion • Intentional invasion • Of a person’s physical seclusion or private affairs • In a manner that would be highly offensive • To a reasonable person

  26. Newsgatheringand publication • Intrusion pertains solely to newsgathering

  27. Newsgatheringand publication • Intrusion pertains solely to newsgathering • Similar to trespassing — Miller v. National Broadcasting Co.

  28. Newsgatheringand publication • Intrusion pertains solely to newsgathering • Similar to trespassing — Miller v. National Broadcasting Co. • Material improperly gathered may often be published or broadcast — Shulman v. Group W

  29. Other privacy torts • Fraud • Food Lion v. ABC

  30. Other privacy torts • Fraud • Food Lion v. ABC • Emotional distress • Hustler Magazine v. Falwell

  31. Other privacy torts • Fraud • Food Lion v. ABC • Emotional distress • Hustler Magazine v. Falwell • Outrage • Armstrong v. H&C Communications

  32. Other privacy torts • Fraud • Food Lion v. ABC • Emotional distress • Hustler Magazine v. Falwell • Outrage • Armstrong v. H&C Communications • Wiretapping • One-party states and two-party states

  33. Hoffman v. Capital Cities/ABC • Los Angeles Magazine “crossed the line” between editorial and commercial use

  34. Hoffman v. Capital Cities/ABC • Los Angeles Magazine “crossed the line” between editorial and commercial use • A reasonable decision? Or is the judge playing editor?

  35. McNamara v. Freedom Newspapers • Soccer player photographed with genitals exposed

  36. McNamara v. Freedom Newspapers • Soccer player photographed with genitals exposed • Judge Benavides: “[A] factually accurate public disclosure is not tortious when connected with a newsworthy event”

  37. McNamara v. Freedom Newspapers • Soccer player photographed with genitals exposed • Judge Benavides: “[A] factually accurate public disclosure is not tortious when connected with a newsworthy event” • Parallels to Dustin Hoffman case?

  38. The Florida Star v. B.J.F. • Highlights difference between ethics and the law • The Florida Star’s own ethics policy was violated by publishing name • Victim suffered serious harm from Star’s actions

  39. The Florida Star v. B.J.F. • Highlights difference between ethics and the law • Media cannot be punished for naming rape victims and juveniles • Cox Broadcasting Corp. v. Cohn (1975) • Oklahoma Publishing Co. v. District Court (1977) • Smith v. Daily Mail Publishing (1979)

  40. The Florida Star v. B.J.F. • Highlights difference between ethics and the law • Media cannot be punished for naming rape victims and juvenile • Marshall’s three grounds • Information was lawfully obtained • Information was publicly available • “Timidity and self-censorship” could result

  41. Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? Three-part test • Social value of facts published • Depth of intrusion into private affairs • Extent to which person voluntarily courted notoriety

  42. Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? • Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor”

  43. Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? • Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor” • Entirely true story about the president of a college’s student body

  44. Diaz v. Oakland Tribune • Was Toni Ann Diaz’s transgender status newsworthy or not? • Judge Barry-Deal says Diaz’s status was not newsworthy, citing “attempt at humor” • Entirely true story about the president of a college’s student body • Is Judge Barry-Deal playing editor?

  45. Shulman v. Group W Productions • Shulman sues on two grounds • Disclosure of private facts • Intrusion

  46. Shulman v. Group W Productions • Shulman sues on two grounds • Judge Werdegar throws out private-facts claim on grounds that judges can’t act as “superior editors”

  47. Shulman v. Group W Productions • Shulman sues on two grounds • Judge Werdegar throws out private-facts claim on grounds that judges can’t act as “superior editors” • Allows intrusion claim to move forward

  48. No special protectionfor newsgathering • Miller v. National Broadcasting Co. • Intrusion into a private place • In a manner that is highly offensive to a reasonable person

  49. No special protectionfor newsgathering • Miller v. National Broadcasting Co. • Branzburg v. Hayes and Cohen v. Cowles Media • Judge Werdegar: “[T]he press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws”

  50. No special protectionfor newsgathering • Miller v. National Broadcasting Co. • Branzburg v. Hayes and Cohen v. Cowles Media • Judge Werdegar: Group W’s story is constitutionally protected, but not its reporting techniques