Chapter 8: Invasion of Privacy – Publication of PrivateInformation and False LightINTRODUCTION-Some call giving publicity to private facts about someone’s life gossipmongering and other call it legitimate journalism.-The law has been largely ineffective in stopping it.-The strangest of the privacy torts is false-light invasion of privacy.PUBLICITY ABOUT PRIVATE FACTS-It is illegal to publicize private information about a person if the matter that is publicizeda. would be highly offensive to a reasonable person, and b. is not of legitimate public concern or interest.-Press critics in the late 19th century called it “keyhole journalism” because of its reporting nature to be snooping, prying, gossipy, and scandal-driven.-What makes this tort constitutionally suspect in the eyes of many judges and legal scholars is that it punishes the press, or whomever, for publishing truthful information that has been legally obtained.-But the courts and legal scholars may be out of step with public opinion on this question.-The law favors the press when the mass media is sued for publishing private facts.-The plaintiff in a private facts case carries the burden of proving each element.-Publicity To Private Facts:1. There must be publicity to private facts about an individual.2. The revelation of this material must be offensive to a reasonable person.3. The material is not of legitimate public concern.PUBLICITY-The words “publicity” and “publication” mean different things in privacy law than in libel law.-In defamation, “publication” means to communicate the material to a single third party.-In privacy law, “publicity” means the material is communicated to the public at large or to a great number of people, making it certain that the facts will shortly become public knowledge.-This kind of publicity can usually be presumed when a story is published in a newspaper or broadcast over a radio and television, or contained on a Web site, a chat room or an electronic bulletin board.PRIVATE FACTS-Before an invasion-of-privacy suit can be successful, the plaintiff must demonstrate that the material publicized was indeed private and not public information.-If a large segment of the public is already aware of supposedly intimate or personal information, it is not private. -But it is an overstatement to say that if anyone else knows the information it is no longer a private fact.-Information contained in documents and files that are considered public records – that is, open to public inspection – is generally not regarded as private (even if no person has ever inspected the file).-If an individual tells a reporter something about himself or herself that others don’t know, the information may or may not be considered private.-Courts have generally followed the standard that a person’s consent is valid, so long as the person has the legal capacity to give consent- regardless of age.-The key is if the individual understands the consequences of revealing the information.Naming Rape Victims-Can and should the name of a rape victim be published? The law is clear on this issue, but the ethical issue is more complicated.-Where a newspaper publishes truthful information which it has lawfully obtained, punishment may be imposed, if at all, only when narrowly tailored to a state interest of the highest order.-So the chances of the victim of a sexual assault successfully suing the media for revealing hisor her name are pretty much impossible.-Most publications and broadcasting stations have not routinely publicized the name of the victim of a sexual assault during the last two decades.-Critics of the publication of the name of a sexual assault victim raise three arguments:-The person who is sexually assaulted becomes the victim three times- the actual assault, the police interrogation, and the publication.-Society often judges the rape victim to be as guilty as the rapist, stigmatizing the victim for many years.-Because of the first two factors, victims may choose to not report the crime and the rapist is not punished and still dangerous.-The other side proposes that publishing the name of a victim adds creditability to a news story. Others argue that they are treating the rape victim differently from the victim of a simple assault or robbery and this reinforces the notion that rape victims are at least partly responsible for their fate.OFFENSIVE MATERIAL-If the determination has been made that private facts about a person’s life have been published, a court must then ask two subsequent questions:1. Would the publication of the material offend a reasonable person?2. Was the published material of legitimate public interest or concern?-If the material is of legitimate public concern, it doesn’t matter how offensive or embarrassing the revelation is. There was no invasion of privacy.-It is the job of editors and reporters, not the courts, to decide what is and what isn’t important.-Courts have typically rejected the notion that a parent or other relative can maintain a privacy suit because of stories about the death of a family member.-The right of privacy is a personal right; the plaintiff must allege some kind of emotional harm; someone who has died cannot do that; the person’s right of privacy ends with his or her death.-Example of woman who won her case: Barber v. Time – Dorothy Barber had a noncontagious disorder where she ate constantly but still lost weight. Time magazine invaded her hospital room, took pictures, and published a story calling her “the starving glutton.” The implications for the general public were minimal and the story was offensive, almost mocking. LEGITIMATE PUBLIC CONCERN-Public interest trumps offensiveness.-Most judges set the public interest bar fairly low and focus not on what people should be interest in reading or hearing, but on what readers and listeners actually find interesting.-Sidis v. F-R Publishing Co. – New Yorker magazine published a story about a child prodigy who had failed to fulfill the promise many had predicted for him. He sued for invasion of privacy. A federal appeals court ruled that while the story might have embarrassed the man, the public enjoyed reading about the problems, misfortunes and troubles of their neighbors and members of the community. The newsworthiness argument was a success.-Some often-asked question’s about legitimate public concern, or newsworthiness:(1) Does the manner in which the story is presented
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