Invasion of Privacy
Invasion of Privacy: Intrusion
Invasion of Privacy: Publication of private facts
Invasion of Privacy: False light
Misappropriation
Invasion of Privacy: Right of publicity
9 Keys to Avoiding Invasion of Privacy Suits
Other newsgathering concerns
Invasion of Privacy: Defenses
Invasion of privacy: Reporter's privacy checklist
Surreptitious recording
Surreptitious Recording: State hidden camera statutes
Confidential sources and information
Confidential sources and information: Legislative protection of news sources
Confidential Sources and Information: Constitutional privilege protects sources
Confidential Sources and Information: A reporter's obligation to a source
Saturday, November 3, 2007
Lecture notes 17
Confidential Sources and Information: What to do when you are subpoenaed
Receiving a subpoena does not mean the marshal will be coming to the door to arrest you. It is simply notice that you have been called to appear at a deposition or other court proceeding to answer questions or to supply certain documents.
You may not ignore a subpoena, however. If you fail to appear at the time and place specified you could be held in contempt of court, and fined or imprisoned, or both.
If you are subpoenaed, there are certain steps you should take immediately.
Under no circumstances should you comply with the subpoena without first consulting a lawyer. It is imperative that your editor or your news organization's legal counsel be advised as soon as a subpoena is served so a plan of action can be developed.
If your state has a shield law, the lawyer must determine whether it applies to the information sought and to the type of proceeding involved. Even if your state does not have a shield law, state courts may have recognized some common law or constitutional privilege that will protect you.
Working with your editor, the lawyer will then recommend a strategy for handling the subpoena, taking into account your news organization's policy governing compliance with subpoenas and revelation of unpublished information or the names of sources.
If a subpoena requests only published or broadcast material, your newspaper or station may elect to turn over these materials without dispute, as a matter of policy. If the materials sought are unpublished, such as notes or outtakes, or concern confidential sources, it is unlikely that your employer has a policy to turn over those materials voluntarily.
Every journalist should be familiar with the news organization's policy for retaining notes and drafts. Follow the rules and do so consistently. If your news organization has no formal policy, talk to your editors about establishing one. Never destroy notes, tapes, drafts or other documents once you have been served with the subpoena.
In some situations, your news organization may not agree that sources or materials should be withheld, and may try to persuade you to reveal the information to the party issuing the subpoena. If the interests of your news organization differ from yours, it may be appropriate for you to seek separate counsel.
http://www.rcfp.org/handbook/c04p05.html
Lecture notes 16
Confidential Sources and Information: A reporter's obligation to a source
Subpoena battles typically arise out of a journalist's commitment to keep his or her source confidential. Many reporters consider their promises to confidential sources to be sacred, and routinely have faced jail to protect their sources.
In 1991, the Supreme Court was asked to decide whether a confidential source may sue a news organization that reveals his identity without his consent.6 The Supreme Court ruled that the First Amendment does not protect journalists from such suits, and left it to the states to decide whether media organizations would be subject to ordinary rules of contracts and "promissory estoppel" (in which a court enforces a promise made to a party who relied on it to his detriment).
Many news organizations have reexamined their policies on whether reporters have the authority to promise unconditional confidentiality to a source, or whether such undertakings can be overruled by editors. You should familiarize yourself with the policy in effect at your news organization.
Subpoena battles typically arise out of a journalist's commitment to keep his or her source confidential. Many reporters consider their promises to confidential sources to be sacred, and routinely have faced jail to protect their sources.
In 1991, the Supreme Court was asked to decide whether a confidential source may sue a news organization that reveals his identity without his consent.6 The Supreme Court ruled that the First Amendment does not protect journalists from such suits, and left it to the states to decide whether media organizations would be subject to ordinary rules of contracts and "promissory estoppel" (in which a court enforces a promise made to a party who relied on it to his detriment).
Many news organizations have reexamined their policies on whether reporters have the authority to promise unconditional confidentiality to a source, or whether such undertakings can be overruled by editors. You should familiarize yourself with the policy in effect at your news organization.
Lecture notes 15
Confidential Sources and Information: Constitutional privilege protects sources
The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes.3 The Court ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries if they actually have witnessed criminal activity.
However, Justices Lewis Powell and Potter Stewart recognized a qualified constitutional privilege in separate opinions. Two other justices joined Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the qualified constitutional privilege a majority.
Since Branzburg, many federal and state courts have acknowledged the existence of some form of qualified constitutional privilege. Where the privilege is recognized, the courts generally utilize a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes "to the heart of the case" and whether it could be obtained from other sources besides the media.
The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the reporter was a witness to a crime. When an important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify.
In criminal trials, many courts apply the three-part balancing test to determine whether the defendant's Sixth Amendment right to confront all witnesses against him outweighs the reporter's need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, or to the defendant's defense.
Additionally, many states will not allow reporters to assert shield law protections to avoid testifying if they witness criminal activity.4
A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts frequently find that the public interest in protecting the reporter's news sources outweighs the private interest in compelling the reporter's testimony.
In libel cases, however, reporters who are defendants may face demands to reveal their confidential sources, particularly if the contested information is the basis of the allegedly defamatory reports.
Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations.
A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory.
The plaintiff also must prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant's identity is needed to properly prepare the case.
Courts also have begun to recognize that subpoenas issued to non-media entities who hold a reporter's telephone records, credit card transactions, or similar material may threaten editorial autonomy, and the courts may apply the reporter's privilege if the records are being subpoenaed in order to discover a reporter's confidential sources.5
The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes.3 The Court ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries if they actually have witnessed criminal activity.
However, Justices Lewis Powell and Potter Stewart recognized a qualified constitutional privilege in separate opinions. Two other justices joined Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the qualified constitutional privilege a majority.
Since Branzburg, many federal and state courts have acknowledged the existence of some form of qualified constitutional privilege. Where the privilege is recognized, the courts generally utilize a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes "to the heart of the case" and whether it could be obtained from other sources besides the media.
The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the reporter was a witness to a crime. When an important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify.
In criminal trials, many courts apply the three-part balancing test to determine whether the defendant's Sixth Amendment right to confront all witnesses against him outweighs the reporter's need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, or to the defendant's defense.
Additionally, many states will not allow reporters to assert shield law protections to avoid testifying if they witness criminal activity.4
A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts frequently find that the public interest in protecting the reporter's news sources outweighs the private interest in compelling the reporter's testimony.
In libel cases, however, reporters who are defendants may face demands to reveal their confidential sources, particularly if the contested information is the basis of the allegedly defamatory reports.
Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations.
A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory.
The plaintiff also must prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant's identity is needed to properly prepare the case.
Courts also have begun to recognize that subpoenas issued to non-media entities who hold a reporter's telephone records, credit card transactions, or similar material may threaten editorial autonomy, and the courts may apply the reporter's privilege if the records are being subpoenaed in order to discover a reporter's confidential sources.5
Lecture notes 14
Confidential sources and information: Legislative protection of news sources
Thirty-one states and the District of Columbia have adopted shield laws affording the media varying degrees of protection against subpoenas.2 Some shield laws protect reporters from forced disclosure of their confidential news sources, but not of unpublished material. Other laws provide absolute or qualified protection according to the type of legal proceeding involved (civil or criminal) or the role of the journalist in the proceeding (defendant or independent third party).
In many states without shield laws, state courts have recognized some form of qualified privilege. In others, state constitutions may include "free press" provisions, which are similar to the U.S. Constitution's First Amendment protections and afford qualified protection. There are several states, however, such as Hawaii and Wyoming, where no privilege to protect unpublished sources or information has been recognized by the courts or legislatures.
Reporters should become familiar with the scope of their state's privilege to withhold confidential sources and information, as recognized by a shield law, state constitution or in case law.
Thirty-one states and the District of Columbia have adopted shield laws affording the media varying degrees of protection against subpoenas.2 Some shield laws protect reporters from forced disclosure of their confidential news sources, but not of unpublished material. Other laws provide absolute or qualified protection according to the type of legal proceeding involved (civil or criminal) or the role of the journalist in the proceeding (defendant or independent third party).
In many states without shield laws, state courts have recognized some form of qualified privilege. In others, state constitutions may include "free press" provisions, which are similar to the U.S. Constitution's First Amendment protections and afford qualified protection. There are several states, however, such as Hawaii and Wyoming, where no privilege to protect unpublished sources or information has been recognized by the courts or legislatures.
Reporters should become familiar with the scope of their state's privilege to withhold confidential sources and information, as recognized by a shield law, state constitution or in case law.
Lecture notes 13
Confidential sources and information
The use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process.
Apart from diverting staff and resources from newsgathering, subpoenas issued to the news media present serious First Amendment problems. The forced disclosure of sources or information threatens the constitutional right to a free press by undercutting the media's independence from government and deterring coverage of matters likely to generate subpoenas. Indeed, the U.S. Court of Appeals in Philadelphia (3rd Cir.) has recognized that "the interrelationship between newsgathering, news dissemination, and the need for a journalist to protect his or her source is too apparent to require belaboring."1
The use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process.
Apart from diverting staff and resources from newsgathering, subpoenas issued to the news media present serious First Amendment problems. The forced disclosure of sources or information threatens the constitutional right to a free press by undercutting the media's independence from government and deterring coverage of matters likely to generate subpoenas. Indeed, the U.S. Court of Appeals in Philadelphia (3rd Cir.) has recognized that "the interrelationship between newsgathering, news dissemination, and the need for a journalist to protect his or her source is too apparent to require belaboring."1
Lecture notes 12
Surreptitious Recording: State hidden camera statutes
The laws of 13 states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people photographed or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance.6
Alabama, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, South Dakota and Utah also prohibit trespassing on private property to conduct surveillance of people there. In most of these states, unauthorized installation or use of a hidden camera, or trespassing to install or use one, is a misdemeanor, punishable by a fine. In Maine, the privacy violation is a felony. In Michigan, unauthorized installation or use of a hidden camera is a felony, punishable by a $2,000 fine and up to two years in prison.7
Several states have laws prohibiting the use of hidden cameras in only certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity.8
Source: http://www.rcfp.org/handbook/c03p02.html
The laws of 13 states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama, Arkansas, California, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, New Hampshire, South Dakota and Utah, installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people photographed or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance.6
Alabama, Delaware, Georgia, Hawaii, Kansas, Maine, Michigan, Minnesota, South Dakota and Utah also prohibit trespassing on private property to conduct surveillance of people there. In most of these states, unauthorized installation or use of a hidden camera, or trespassing to install or use one, is a misdemeanor, punishable by a fine. In Maine, the privacy violation is a felony. In Michigan, unauthorized installation or use of a hidden camera is a felony, punishable by a $2,000 fine and up to two years in prison.7
Several states have laws prohibiting the use of hidden cameras in only certain circumstances, such as in locker rooms or restrooms, or for the purpose of viewing a person in a state of partial or full nudity.8
Source: http://www.rcfp.org/handbook/c03p02.html
Lecture notes 11
Surreptitious recording
Some reporters regard tape recorders and cameras as intrusive devices that all but ensure that interviewees will be uncooperative. To others, they are invaluable newsgathering tools that create important documentary evidence of a conversation.
News organizations frequently adopt policies regarding surreptitious use of these newsgathering tools. It is critical that reporters and news organizations know the state and federal laws that govern the use of cameras and tape recorders. The summary that follows is intended as an introduction to those laws.
You may record, film, broadcast or amplify any conversation if all parties to the conversation consent. It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view. In these instances, the consent of all parties is presumed.
Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit one-party-consent recording of telephone conversations in most circumstances.1 Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.2
The federal wiretap law, passed in 1968, permits surreptitious recording of conversations when one party consents, "unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." Amendments signed into law in 1986 and 1994 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations, computer data transmissions and cordless phone conversations.
Most states have copied the federal law. Some expand on the federal law's language and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability.
Many of the state statutes make possession of wiretapping devices a crime even though one-party consent to taping conversations may be allowed.
Most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. Most also exempt from their coverage law enforcement agencies and public utilities that monitor conversations and phone lines in the course of their businesses.
In general, state statutes apply to conversations that take place within a single state.
When the conversation is between parties in states with conflicting eavesdropping and wiretapping laws, federal law generally applies, although either state also may choose to enforce its laws against a violator.
If a reporter in a state that allows one-party consent taping calls a party in a state that requires two-party consent, and tapes the conversation surreptitiously — which is legal under federal law — a state with tough laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of a preemptive federal statute. Unfortunately, it is still unclear whether courts will hold that the federal protection preempts the state law.3 It is important to know your state law and the law in the state into which you call before you record surreptitiously.
The federal law and many state laws make it illegal to possess and particularly to publish the contents of an illegal wiretap. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime. The U.S. Supreme Court ruled in Bartnicki v. Vopper in May 2001 that the media could not be held liable for damages under the federal statute for publishing or broadcasting information that the media obtained from a source who had conducted an illegal wiretap.
The Federal Communications Commission also has adopted a policy, known as the "Telephone Rule."5 It requires a reporter who tapes a telephone conversation that will later be broadcast to inform the other party that the tape is intended for broadcast.
Source: http://www.rcfp.org/handbook/c03p01.html
Some reporters regard tape recorders and cameras as intrusive devices that all but ensure that interviewees will be uncooperative. To others, they are invaluable newsgathering tools that create important documentary evidence of a conversation.
News organizations frequently adopt policies regarding surreptitious use of these newsgathering tools. It is critical that reporters and news organizations know the state and federal laws that govern the use of cameras and tape recorders. The summary that follows is intended as an introduction to those laws.
You may record, film, broadcast or amplify any conversation if all parties to the conversation consent. It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view. In these instances, the consent of all parties is presumed.
Of the 50 states, 38, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes also permit one-party-consent recording of telephone conversations in most circumstances.1 Twelve states forbid the recording of private conversations without the consent of all parties. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.2
The federal wiretap law, passed in 1968, permits surreptitious recording of conversations when one party consents, "unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." Amendments signed into law in 1986 and 1994 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations, computer data transmissions and cordless phone conversations.
Most states have copied the federal law. Some expand on the federal law's language and prohibit all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states, the laws allow for civil as well as criminal liability.
Many of the state statutes make possession of wiretapping devices a crime even though one-party consent to taping conversations may be allowed.
Most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. Most also exempt from their coverage law enforcement agencies and public utilities that monitor conversations and phone lines in the course of their businesses.
In general, state statutes apply to conversations that take place within a single state.
When the conversation is between parties in states with conflicting eavesdropping and wiretapping laws, federal law generally applies, although either state also may choose to enforce its laws against a violator.
If a reporter in a state that allows one-party consent taping calls a party in a state that requires two-party consent, and tapes the conversation surreptitiously — which is legal under federal law — a state with tough laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of a preemptive federal statute. Unfortunately, it is still unclear whether courts will hold that the federal protection preempts the state law.3 It is important to know your state law and the law in the state into which you call before you record surreptitiously.
The federal law and many state laws make it illegal to possess and particularly to publish the contents of an illegal wiretap. Some states that allow recordings make the distribution or publication of those otherwise legal recordings a crime. The U.S. Supreme Court ruled in Bartnicki v. Vopper in May 2001 that the media could not be held liable for damages under the federal statute for publishing or broadcasting information that the media obtained from a source who had conducted an illegal wiretap.
The recording related to a local union leader's proposal to conduct violent acts in the area. The Court ruled that any claim of privacy in the recorded information was outweighed by the public's interest in a matter of serious public concern.4 The Court did not indicate whether disclosure by the media under different circumstances would be considered legal.
The Federal Communications Commission also has adopted a policy, known as the "Telephone Rule."5 It requires a reporter who tapes a telephone conversation that will later be broadcast to inform the other party that the tape is intended for broadcast.
Source: http://www.rcfp.org/handbook/c03p01.html
Lecture notes 10
Invasion of privacy: Reporter's privacy checklist
Source: http://www.rcfp.org/handbook/c02p09.html
Consent from the subject- Is the subject an adult?
If not, do you have parental consent?
Is the person mentally or emotionally disabled and unable to give consent? Have you obtained valid consent from a guardian or other responsible party?
Has that consent been revoked?
Is the subject currently a private or public figure? Has the person's status changed over time?
Source: http://www.rcfp.org/handbook/c02p09.html
Lecture notes 9
Invasion of Privacy: Defenses
If a person consents, there can be no invasion of privacy. However, the reporter should be sure that the subject has not only consented to be interviewed, but also consented to publishing or airing the interview or photographs. When minors or legally incompetent people are involved, the consent of a parent or guardian may be necessary. A written release is essential for use of pictures or private information in advertising or other commercial contexts.
Truth can be a defense, but only in false light cases. A litigant claiming false light invasion of privacy who is involved in a matter of public interest must prove that the media intentionally or recklessly made erroneous statements about him. However, truth is not a defense to a claim based on publication of private facts.
If the public has a legitimate interest in the story as it was reported, newsworthiness can be a defense to the charge of invasion of privacy. But if the report of legitimate public interest includes gratuitous private information, publication of those private facts may be actionable.
Source: http://www.rcfp.org/handbook/c02p08.html
If a person consents, there can be no invasion of privacy. However, the reporter should be sure that the subject has not only consented to be interviewed, but also consented to publishing or airing the interview or photographs. When minors or legally incompetent people are involved, the consent of a parent or guardian may be necessary. A written release is essential for use of pictures or private information in advertising or other commercial contexts.
Truth can be a defense, but only in false light cases. A litigant claiming false light invasion of privacy who is involved in a matter of public interest must prove that the media intentionally or recklessly made erroneous statements about him. However, truth is not a defense to a claim based on publication of private facts.
If the public has a legitimate interest in the story as it was reported, newsworthiness can be a defense to the charge of invasion of privacy. But if the report of legitimate public interest includes gratuitous private information, publication of those private facts may be actionable.
Source: http://www.rcfp.org/handbook/c02p08.html
Lecture notes 8
Other newsgathering concerns
Subjects of news stories who cannot utilize traditional legal theories to sue the media sometimes sue news organizations under other causes of action, such as fraud or trespass. These claims have proceeded with varying success. In a case over a hidden-camera investigation by ABC News that revealed a grocery chain's unsafe practices, a federal appeals court rejected a fraud claim but allowed nominal damages for claims of trespass and breach of the duty of loyalty. The court said that ABC News employees who had gained employment with the grocer and videotaped nonpublic areas of the store could be liable for only $2 in damages.16
Journalists should be mindful of privacy issues when engaging in "ride-alongs" with law enforcement officials. In 1997, the U.S. Court of Appeals (9th Cir.) held that members of a television news camera crew who taped the execution of a search warrant on private property were so closely aligned with the law enforcement officers that they became "state actors" who can be held liable for civil rights violations. The Supreme Court reviewed the case and held that police officers could be liable for bringing the media inside a home, but the Court declined to rule on the liability of the media defendants. The case ultimately settled out of court.17
Subjects of news stories who cannot utilize traditional legal theories to sue the media sometimes sue news organizations under other causes of action, such as fraud or trespass. These claims have proceeded with varying success. In a case over a hidden-camera investigation by ABC News that revealed a grocery chain's unsafe practices, a federal appeals court rejected a fraud claim but allowed nominal damages for claims of trespass and breach of the duty of loyalty. The court said that ABC News employees who had gained employment with the grocer and videotaped nonpublic areas of the store could be liable for only $2 in damages.16
Journalists should be mindful of privacy issues when engaging in "ride-alongs" with law enforcement officials. In 1997, the U.S. Court of Appeals (9th Cir.) held that members of a television news camera crew who taped the execution of a search warrant on private property were so closely aligned with the law enforcement officers that they became "state actors" who can be held liable for civil rights violations. The Supreme Court reviewed the case and held that police officers could be liable for bringing the media inside a home, but the Court declined to rule on the liability of the media defendants. The case ultimately settled out of court.17
Lecture notes 7
9 Keys to Avoiding Invasion of Privacy Suits
The best hedge against invasion of privacy suits is knowledge of the law in the jurisdiction in which the photograph or videotape is shot and published or broadcast. However, the line between journalism that is protected by the First Amendment and state law, and journalism that creates liability for invasion of privacy, is rarely clear.
Before taking or publishing a questionable picture, a photojournalist might want to consider several factors:
Generally, what can be seen from public view can be photographed without legal repercussions. Photographs taken in private places require consent.
Even if people are photographed in public, beware of the context in which the picture is placed (such as an innocuous photo of recognizable teen-agers in a story about the rise of teen violence). Use caution when utilizing file footage or photographs to illustrate negative stories. Special effects can be used to render the subjects unidentifiable.
If consent is required, it must be obtained from someone who can validly give it. For example, permission from a child or mentally handicapped person may not be valid, and a tenant may not be authorized to permit photographs of parts of the building not rented by the tenant.
Consent to enter a home may not be consent to photograph it. Consent exceeded can be the same as no consent at all.
Although oral consent may protect the press from liability for invasion of privacy, written consent is more likely to foreclose the possibility of a lawsuit. However, a subjects subsequent withdrawal of consent does not bar the publication of the photograph. It simply means that the journalist may not assert consent as a defense if the subject later files suit. In some states the commercial use of a photograph requires prior written consent.
Permission from a police department to accompany officers who legally enter private property may not immunize journalists from invasion of privacy suits. In most states, authorities may deny photographers access to crime scenes and disaster areas.
Public officials and public figures, and people who become involved in events of public interest, have less right to privacy than do private persons.
In some states, using hidden cameras, or audiotaping people without their consent, may invite criminal or civil penalties.
A photograph may intrude into a persons seclusion without being published. Intrusion can occur as soon as the image is taken.
Privacy laws vary widely from state to state, and the law often is unclear within a given state. If in doubt about a situation, a call to a media lawyer or to the Reporters Committee may help you assess the risk.
Source: http://www.rcfp.org/photoguide/ninekeys.html
The best hedge against invasion of privacy suits is knowledge of the law in the jurisdiction in which the photograph or videotape is shot and published or broadcast. However, the line between journalism that is protected by the First Amendment and state law, and journalism that creates liability for invasion of privacy, is rarely clear.
Before taking or publishing a questionable picture, a photojournalist might want to consider several factors:
Generally, what can be seen from public view can be photographed without legal repercussions. Photographs taken in private places require consent.
Even if people are photographed in public, beware of the context in which the picture is placed (such as an innocuous photo of recognizable teen-agers in a story about the rise of teen violence). Use caution when utilizing file footage or photographs to illustrate negative stories. Special effects can be used to render the subjects unidentifiable.
If consent is required, it must be obtained from someone who can validly give it. For example, permission from a child or mentally handicapped person may not be valid, and a tenant may not be authorized to permit photographs of parts of the building not rented by the tenant.
Consent to enter a home may not be consent to photograph it. Consent exceeded can be the same as no consent at all.
Although oral consent may protect the press from liability for invasion of privacy, written consent is more likely to foreclose the possibility of a lawsuit. However, a subjects subsequent withdrawal of consent does not bar the publication of the photograph. It simply means that the journalist may not assert consent as a defense if the subject later files suit. In some states the commercial use of a photograph requires prior written consent.
Permission from a police department to accompany officers who legally enter private property may not immunize journalists from invasion of privacy suits. In most states, authorities may deny photographers access to crime scenes and disaster areas.
Public officials and public figures, and people who become involved in events of public interest, have less right to privacy than do private persons.
In some states, using hidden cameras, or audiotaping people without their consent, may invite criminal or civil penalties.
A photograph may intrude into a persons seclusion without being published. Intrusion can occur as soon as the image is taken.
Privacy laws vary widely from state to state, and the law often is unclear within a given state. If in doubt about a situation, a call to a media lawyer or to the Reporters Committee may help you assess the risk.
Source: http://www.rcfp.org/photoguide/ninekeys.html
Lecture notes 6
Invasion of Privacy: Right of publicity
Some states recognize a right of publicity, which protects a celebrity's commercial interest in the exploitation of his or her name or likeness. In some jurisdictions, this right may descend to heirs or be assigned to others after the person's death.
Although use of a famous person's name or likeness, without consent, to sell a product is usually an invasion of privacy, other infringements may not be so clear. When an Ohio television station filmed a performer's entire 15-second human cannonball act for its evening newscast, the U.S. Supreme Court found that the film posed a substantial threat to the economic value of that performance. Therefore, use of the film was a tortious appropriation of the plaintiff's professional property, the court said.13
Actress Elizabeth Taylor sued NBC, a television production company, and an author to prevent the network from using her name or likeness or using another actress to play her in a miniseries about her life. Taylor argued that the miniseries should be enjoined because it infringed upon her "right of publicity."14
The court rejected that argument, explaining that the right of publicity cannot be used to stifle commentary on the lives of public people. The court ruled that an injunction against NBC would constitute an unconstitutional prior restraint against First Amendment-protected expression. Reproductions of past events and biographies fall within the scope of protected First Amendment expression, the court said.
In a 1993 case, the U.S. Court of Appeals (6th Cir.) ordered a district court judge to vacate his order preventing distribution of a book with a jacket containing a photograph of a murder victim with red ink splattered on it to look like a blood stain. The victim's sister had filed suit claiming that the jacket violated the victim's "right of publicity." The court of appeals stated that "even minimal interference with First Amendment freedoms causes injury."15
Lecture notes 5
Misappropriation
The use of a person's name or likeness for commercial purposes without consent is misappropriation. The law protects an individual from being exploited by others for their exclusive benefit. A person's entire name need not be used. If the person could reasonably be identified, the misappropriation claim probably will be valid.11
Use of a photograph to illustrate a newsworthy story is not misappropriation. Even if a photo is used to sell a magazine on a newsstand, courts usually will not consider that a trade or commercial purpose. The line between news and commercial use is not always clear, however, and even photographs used to illustrate an article may create liability for misappropriation if the article is considered to have an overriding commercial purpose.12
lecture notes 4
Invasion of Privacy: False light
False light invasion of privacy occurs when information is published about a person that is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light.
Although this tort is similar to defamation, it is not the same. The report need not be defamatory to be actionable as false light. This type of invasion of privacy tends to occur when a writer condenses or fictionalizes a story, or uses stock footage to illustrate a news story.
False light includes embellishment (false material added to a story, which places someone in a false light), distortion (the arrangement of materials or photographs to give a false impression) and fictionalization (works of fiction containing disguised characters that represent real people or references to real people in fictitious articles). Some courts may consider works of fiction to be constitutionally protected expressions even if they contain characters who resemble, or clearly were based on, identifiable individuals known by the author or creator.10
Source: http://www.rcfp.org/handbook/c02p04.html
False light invasion of privacy occurs when information is published about a person that is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light.
Although this tort is similar to defamation, it is not the same. The report need not be defamatory to be actionable as false light. This type of invasion of privacy tends to occur when a writer condenses or fictionalizes a story, or uses stock footage to illustrate a news story.
False light includes embellishment (false material added to a story, which places someone in a false light), distortion (the arrangement of materials or photographs to give a false impression) and fictionalization (works of fiction containing disguised characters that represent real people or references to real people in fictitious articles). Some courts may consider works of fiction to be constitutionally protected expressions even if they contain characters who resemble, or clearly were based on, identifiable individuals known by the author or creator.10
Source: http://www.rcfp.org/handbook/c02p04.html
Lecture Notes 3
Invasion of Privacy: Publication of private facts
Publication of truthful information concerning the private life of a person that would be both highly offensive to a reasonable person and not of legitimate public concern is an invasion of privacy in some states. Liability often is determined by how the information was obtained and its newsworthiness.
Revealing private, sensational facts about a person's sexual activity, health or economic status can constitute an invasion of privacy.
Reporting news events that take place in public generally does not constitute invasion of privacy. Arrests are considered newsworthy and, therefore, the press is free to accurately report them. Even a couple's intimate moment in public, captured in a photograph, is not actionable as long as a reasonable person would not consider the picture private. Courts usually find that individuals have no "reasonable expectation of privacy" when they are in public.
Public records: If information comes from a public record, such as a birth certificate, police report or judicial proceeding, the media usually are not liable for reporting it. A newspaper can print a list of people who have been granted divorces, for instance, when the information is derived from court records, no matter how embarrassing it is to the individuals.6 However, not all information kept by public agencies is considered part of the public record.
Some states restrict the release of certain information, even though it is part of an official record, by sealing the files or restricting public and news media access to certain proceedings.
However, if the press lawfully obtains truthful information about a matter of public concern from government sources, the state may not constitutionally punish publication of the information absent the need to further a substantial state interest.7
Reporters should use caution in relying upon semi-public documents. For example, a police detective's notes that do not become part of the official police report may not be considered to be official records. If a document relied upon by a reporter was found to be only semi-public, the reporter might not be privileged to report the information contained in it.
However, one federal appellate court has ruled that publishing information from even a secret police report is not an invasion of privacy, because there is no reasonable expectation that information given to the police will be kept secret.8
Newsworthiness: The court may consider several factors in determining whether information published is newsworthy, including the social value of the facts published, the extent to which the article intruded into ostensibly private affairs, and whether the person voluntarily assumed a position of public notoriety.
For example, in Garner v. Triangle Publications Inc.,9 a woman who had been involved in a car accident sued a reporter who revealed that she was living with a man who was not her spouse. That fact was not pertinent to the story, which was otherwise newsworthy, and the reporter was held liable.
Passage of time: The newsworthiness of a private fact may be affected by the passage of time. Problems occur when individuals who once may have been notorious but who since have been rehabilitated become subjects of historical commentaries that refer to their former crimes or indiscretions. Private facts published in a popular feature, such as a "25 Years Ago Today" column, could be considered an invasion of privacy if the subject is not considered to be a public figure or is deemed to have lost his public figure status.
Disclosed facts about both public officials and public figures are not subject to the passage of time rule. Community standards: The sensibilities of the community also must be considered when determining if a private fact should be reported. The law is not designed to protect the overly sensitive. However, if the information could be considered indecent or obscene by community standards and is not central to the story, it may be safer to eliminate it.
Lecture Notes 2
Invasion of Privacy: Intrusion
Privacy is invaded when one intentionally intrudes, physically or otherwise, upon a person's solitude or into his private area or affairs.
Intrusion claims against the media often center on some aspect of the newsgathering process. This tort may involve the wrongful use of tape recorders, cameras or other intrusive equipment. Trespass also can be a form of intrusion. In addition to liability for tortious invasions of privacy, reporters should be aware that anti-paparazzi laws may create statutory liability, sometimes both civil and criminal, for newsgathering that involves trespass or harassment. California enacted such a law in 1998, and a similar bill was considered by the U.S. Congress in 1999.3
The California Supreme Court has held that at an accident scene, audio and videotaping of rescue efforts alongside an interstate would not constitute intrusion, but taping the same accident victims once they have been moved to a rescue helicopter could be considered an invasion of privacy.5
Privacy is invaded when one intentionally intrudes, physically or otherwise, upon a person's solitude or into his private area or affairs.
Intrusion claims against the media often center on some aspect of the newsgathering process. This tort may involve the wrongful use of tape recorders, cameras or other intrusive equipment. Trespass also can be a form of intrusion. In addition to liability for tortious invasions of privacy, reporters should be aware that anti-paparazzi laws may create statutory liability, sometimes both civil and criminal, for newsgathering that involves trespass or harassment. California enacted such a law in 1998, and a similar bill was considered by the U.S. Congress in 1999.3
An actionable claim for intrusion may arise whether or not a news story is published or aired. For example, in Williams v. ABC, a plaintiff successfully sued a television station when her hip surgery was filmed without her consent.4 The presence of television cameras in private surgery was held to be an intrusion — a violation of the woman's privacy — regardless of whether the surgery footage actually was aired.
The California Supreme Court has held that at an accident scene, audio and videotaping of rescue efforts alongside an interstate would not constitute intrusion, but taping the same accident victims once they have been moved to a rescue helicopter could be considered an invasion of privacy.5
Lecture Notes 1
Invasion of privacy
Almost every state recognizes some right of privacy, either by statute or under common law. Most state laws attempt to strike a balance between the individual's right to privacy and the public interest in freedom of the press. However, these rights often clash.
The concept of a right to privacy was first articulated in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren. It took U.S. courts 15 more years to recognize it. The Georgia Supreme Court was the first to do so in Pavesich v. New England Life Insurance Co.,1 a case involving the use of an individual's photograph in a newspaper advertisement without his permission.
Invasion of privacy is considered a personal tort, aimed at protecting the individual's feelings — feelings often articulated by courts as "reasonable expectations of privacy." Corporations ordinarily cannot claim a right of privacy, and surviving heirs generally cannot file suit on behalf of a decedent.2
Public figures have a limited claim to a right of privacy. Past and present government officials, political candidates, entertainers and sports figures are generally considered to be public figures. They are said to have exposed themselves to scrutiny voluntarily and to have waived their right of privacy, at least in matters that might have an impact on their ability to perform their public duties.
Although private individuals usually can claim the right to be left alone, that right is not absolute. For example, if a person who is normally not considered a public figure is thrust into the spotlight because of her participation in a newsworthy event, her claims of a right of privacy may be limited.
A right of privacy can be violated by any means of communication, including spoken words. This tort is usually divided into four categories: intrusion, publication of private facts, false light and misappropriation.
Source: http://www.rcfp.org/handbook/c02p01.html
Almost every state recognizes some right of privacy, either by statute or under common law. Most state laws attempt to strike a balance between the individual's right to privacy and the public interest in freedom of the press. However, these rights often clash.
The concept of a right to privacy was first articulated in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren. It took U.S. courts 15 more years to recognize it. The Georgia Supreme Court was the first to do so in Pavesich v. New England Life Insurance Co.,1 a case involving the use of an individual's photograph in a newspaper advertisement without his permission.
Invasion of privacy is considered a personal tort, aimed at protecting the individual's feelings — feelings often articulated by courts as "reasonable expectations of privacy." Corporations ordinarily cannot claim a right of privacy, and surviving heirs generally cannot file suit on behalf of a decedent.2
Public figures have a limited claim to a right of privacy. Past and present government officials, political candidates, entertainers and sports figures are generally considered to be public figures. They are said to have exposed themselves to scrutiny voluntarily and to have waived their right of privacy, at least in matters that might have an impact on their ability to perform their public duties.
Although private individuals usually can claim the right to be left alone, that right is not absolute. For example, if a person who is normally not considered a public figure is thrust into the spotlight because of her participation in a newsworthy event, her claims of a right of privacy may be limited.
A right of privacy can be violated by any means of communication, including spoken words. This tort is usually divided into four categories: intrusion, publication of private facts, false light and misappropriation.
Source: http://www.rcfp.org/handbook/c02p01.html
Short cuts
These are short cuts instead of a lengthy blog scroll
Submission of assignments:- http://alfred-massaquoi.blogspot.com/2007/11/submission-of-assignments.html
Assignment:- http://alfred-massaquoi.blogspot.com/2007/10/assignment.html
Lecture notes on Libel and Proof of fault:- http://alfred-massaquoi.blogspot.com/2007/10/lecutures-on-libel-proof-of-fault-and.html
Libel Establishing a Case:- http://alfred-massaquoi.blogspot.com/2007/10/libel-establishing-case.html
Submission of assignments:- http://alfred-massaquoi.blogspot.com/2007/11/submission-of-assignments.html
Assignment:- http://alfred-massaquoi.blogspot.com/2007/10/assignment.html
Lecture notes on Libel and Proof of fault:- http://alfred-massaquoi.blogspot.com/2007/10/lecutures-on-libel-proof-of-fault-and.html
Libel Establishing a Case:- http://alfred-massaquoi.blogspot.com/2007/10/libel-establishing-case.html
Thursday, November 1, 2007
Submission of Assignments
IMPORTANT ANNOUNCEMENT
All students who did the assignment are advised to submit same on Tuesday as against Friday as announced in class, because I shall not be in school on Friday due to some circumstances beyond my control. Hopefully, the problem will be resolved soon by next week. Sorry for the inconvenience this may have caused you.
Pleased be informed that the assignment should be taken seriously, because it shall go for your mid-semester exams.
Please do an individual work else I shall fail any student who copied from one another.
I'm afraid I shall not be in school also for Laboratory work. Rev. Mensah will kick off with you. He shall be informed. Please govern yourselves accordingly. After the mid-semester, the laboratory session shall focus on television production and presentation.
Bye! I missed you, and love you all dearly.
All students who did the assignment are advised to submit same on Tuesday as against Friday as announced in class, because I shall not be in school on Friday due to some circumstances beyond my control. Hopefully, the problem will be resolved soon by next week. Sorry for the inconvenience this may have caused you.
Pleased be informed that the assignment should be taken seriously, because it shall go for your mid-semester exams.
Please do an individual work else I shall fail any student who copied from one another.
I'm afraid I shall not be in school also for Laboratory work. Rev. Mensah will kick off with you. He shall be informed. Please govern yourselves accordingly. After the mid-semester, the laboratory session shall focus on television production and presentation.
Bye! I missed you, and love you all dearly.
Subscribe to:
Posts (Atom)