Chapter Six: Privacy

Overview of the Topic:

When it comes to privacy, it has been one of the greatest concerns of American citizens. In the U.S. law system, there are several sources of privacy protection: U.S. Constitution, federal and state laws, and the Federal Trade Commission (FTC). The FTC is the chief federal agency in charge of consumer privacy regulations and of the enforcement of federal privacy laws.

Although privacy laws regarding the media are fairly inconsistent from state to state, the privacy laws were split into four torts: false light, appropriation, intrusion and private facts. These four categories allow for the law to recognize an individual’s dignity and right to privacy.

If truthful information is lawfully obtained from some kind of public record, publishing is protected by the First Amendment. However, the First Amendment doesn’t protect the publishing of private facts that are of no legitimate concern to the public. In proving defenses, newsworthiness can never diminish.

Defining Key Terms:

Fact Finder: a judge or the jury determining which facts presented in evidence are accurate.

Appropriation: Using a person’s picture, name, likeness or identity for commercial or trade purposes without permission.

Commercialization: The appropriation tort used to protect people who want privacy.

Transformative use test: A test to determine whether a creator has transformed a person’s name, picture, likeness, voice or identity for artistic purposes.

Artistic relevance test: A test to determine whether the use of a celebrity’s likeness, picture, identity or voice is relevant to a disputed work’s artistic purpose. 

Predominant use test: In a right of publicity lawsuit, a test to determine whether the defendant used the plaintiff’s name or picture more for commercial purposes or protected expression.

Intrusion upon seclusion: Physically or technologically disturbing another’s reasonable expectation of privacy.

Important Cases:

Cox Broadcasting Corp. v. Cohn – During a trial over a deceased 17-y.o. rape victim, a reporter for the Cox Broadcasting Corp. named the victim, regardless that her identity was kept private by other mass media outlets. The Supreme Court ruled the case in appellee’s advantage due to emotional distress cause by the publication of the deceased person’s name.

Riley v. California – The question whether the police has the authority to search a seized phone without permission. Riley’s argument to a Fourth Amendment right was overturned, hence he was charged for different violations.

Relevant Doctrine:

Constitutional Right to Privacy

• Protection comes from the Third, Fourth, Fifth and Fourteenth Amendments.
• The Constitution protects from governmental invasion of privacy.  
• Harlan’s “reasonable expectation of privacy” test establishes a Fourth Amendment right to privacy

Reasonable Expectation of Privacy Test

An individual has a Fourth Amendment right when:

1. A person exhibits an actual expectation of privacy
2. Society is prepared to recognize this expectation as reasonable.

The Four Privacy Torts

1. False Light: Intentionally or recklessly publicizing false information a reasonable person would find highly offensive
2. Appropriation: Using another’s name or likeness for advertising or other commercial purposes without permission. There are two subcategories of the appropriation torts: commercialization and right of publicity.
3. Intrusion: Intentionally intruding on another’s solitude or decision
4. Private facts: Publicizing private, embarrassing information

False Light

In order for a plaintiff to win the case, he/ she must prove:

• Publication
• Identification
• Falsity
• Highly offensive
• Fault

Defense:

• Libel Defenses

Appropriation

1. Commercialization: Applying to someone who wants to remain private and unknown except to family and friends. Using this person’s name, picture, likeness, or voice advertising or other commercial purposes without permission identifies as commercialization. It also cause emotional distress.
2. Right of Publicity: applying to someone who wants to be known far and wide, to be a celebrity – a musician, athlete, movie star or television personality. Using this person’s name, picture, likeness, voice or identity – or a look-alike or sound-alike – for advertising or other commercial purposes without permission invade this person’s right of publicity. It also devalues their economic values.

Commercialization

Plaintiff’s case

• Using a person’s name, picture, likeness, voice or identity
• For advertising or other commercial purposes
• Without permission

Defense:

• News
• Public domain
• First Amendment
• Incidental use
• Advertising for a mass medium
• Consent

Intrusion by Trespass

Plaintiff’s case:

• A reasonable expectation of privacy
• Intentional intrusion on the privacy
• The intrusion would be highly offensive to a reasonable person

Defense

• Consent

Private Facts

Plaintiff’s case:

• Publication
• Private/ Intimate facts
• Highly embarrassing
• Legitimacy of a public concern

Defense:

• First Amendment – truthful information lawfully obtained from public records

Current Issues/ Controversies:

Mid-January, a Chicago-native lawyer filed a suit against the local police of violating his First and Fourth Amendment rights by intercepting his phone during the Black Lives Matter protest. In the case, the plaintiff states that the police tends to use cell site simulators that gather the information from a targeted device without the owner’s permission nor knowledge. In his case, the plaintiff’s allegations call on the invasion of privacy as well. 

Although this case is not as controversial in its nature, it does raise a question on the issue of privacy, and how do different federal and state agencies regard a person’s right to private information. This case is somewhat similar to the Riley case in its basic concept, as both cases talk about the police seizing information from a person’s cell phone without warrant or permission.

As privacy in general is an extremely sensitive area of law for many, it is hard to draw a line where an authorities perform privacy invasion in their investigative measures. The issues revolving around privacy have to be handled with extreme caution, as it can be seen from the given example.

My Questions/ Concerns:

1. How can the concept of a ‘reasonable person’ be defined to reach some level of consistency in court?
2. Does emotional distress have bigger impact in the court’s decision in privacy torts in comparison to other elements of the privacy tort? For instance, if the information is truthful and legally obtained, would that be a sufficient defense if the information cause a severe emotional distress to the plaintiff?

References:

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.

Weiss,D.C. (Jan 13, 2017). Chicago lawyer sues police over interception of hiscellphone information during protest. ABAJournal.