Chapter 8 Invasion of Privacy Publication of Private Information and False Light INTRODUCTION 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 publicized a 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 his or 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 have an impact on whether it has legitimate public interest Sensational treatment of a story does not usually remove the protection of newsworthiness 2 Does the law of
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