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University of Montana School of Journalism |
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Privacy |
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These cases illustrate the torts of private facts, intrusion and false light. |
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Private facts |
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Elements: (1) Highly offensive to a reasonable person (2) Not of legitimate concern to the public (3) Communicated to the public |
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Reporter for WSB-TV, Atlanta, obtains--from copy of indictment provided by court clerk in rape case--name of victim, 17-year-old girl raped and murdered in 1971. State law forbids publishing or broadcasting identity of rape victims. TV station names victim. Girl's father sues, claiming his privacy invaded. Georgia Supreme Court allows suit to go to trial but U.S. Supreme Court reverses. |
U.S. Supreme Court gives First Amendment protection to journalists to report "offensive" private information contained in official records placed in open court. Punishing journalists for publishing lawfully obtained truthful information would lead to self-censorship and timidity in reporting important information to public. |
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The Florida Star v. B.J.F. |
State law bars media from publishing or broadcasting name of victim of sexual offense. Sheriff's office names rape victim in press release, although posted sign warns that such names not public. Cub reporter for Jacksonville weekly includes victim's name in story, contrary to paper's policy. Victim sues for invasion of privacy. Florida appeals court upholds $100,000 award. U.S. Supreme Court reverses. |
Government punishment of publication of lawfully acquired truthful information must be "narrowly tailored to a state interest of the highest order." Fla. law (a) not narrowly tailored: automatic liability instead of case-by-case determination; (b) only applies to mass media: punishment should be evenly applied to all who communicate private information. If government wants to keep information confidential it should take stronger measures to safeguard it. |
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Cape Publishing v. Bridges |
Newspaper Cocoa Today publishes photo of Hilda Bridges partially nude as she flees apartment where estranged husband had forced her to disrobe then killed himself. Bridges sues for invasion of privacy; awarded $10,000 by jury. Florida appellate court reverses. |
Appellate court holds that Bridges involved in newsworthy event. As crimes, arrests, police raids, accidents and fires are matters of public interest, persons involved, even involuntarily, in such events are usually precluded from suing for invasion of privacy. |
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Sipple v. Chronicle Publishing Co. |
Oliver Sipple, decorated Vietnam veteran saves President Gerald Ford's life in 1975 by deflecting assassin's gun in San Francisco. San Francisco Chronicle reveals he is a homosexual. Sipple sued for IP, arguing that while his brave act was newsworthy his sexual orientation was not. California Court of Appeals reverses jury award. |
Appellate court holds that Sipple's sexual orientation was newsworthy because of (a) Sipple's activism in S.F. gay community and (b) because news of his courageous act was an "attempt to dispel the false public opinion that gays were timid, weak and unheroic figures." |
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Intrusion |
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Elements: (1) Highly intrusive to a reasonable person (2) Physical, electronic or mechanical invasion of another's solitude or seclusion, where there is a reasonable expectation of privacy (3) Newsworthiness not a defense |
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Dietemann v. Time Inc. |
In Life magazine investigation of quack doctor, reporters pretend to be patients. Examination in Dietemann's den secretly transmitted to tape recorder in nearby police car and secretly photographed. Dietemann sues for invasion of privacy and wins $1,000 for electronic intrusion into his home. Ninth Circuit court of appeals affirms. |
Court holds that although newsgathering an essential part of news dissemination and protected by the First Amendment, plaintiff's den "was a sphere from which he could reasonably expect to exclude eavesdropping newsmen." Court disagrees that hidden mechanical contrivances are "indispensable tools" of newsgathering. Court declares that "The First Amendment is not a license to trespass, to steal or to intrude by electronic means into the precincts of another's home or office." |
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McCall v. Courier Journal |
Reporters wire indicted drug dealer with hidden tape recorder for meeting with her attorney McCall to corroborate dealer's charges that he bribed judges. McCall sues for invasion of privacy. Trial court and court of appeals rule against him. |
Unlike in Dietemann, plaintiff knew visitor; no false identity involved. As he suspected dealer was wired yet let conversation continue, he consented to her presence and had less expectation of privacy. |
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Desnick v. ABC |
ABC's "Prime Time Live" given access to Desnick Eye Centers for "story on large cataract practices." Reporters posing as patients record eye exams with hidden cameras to investigate allegations that center does unnecessary cataract operations. ABC airs report. Desnick sues for IP, libel, trespass and fraud. Appellate court dismisses charges. |
Extremely favorable ruling for tabloid-style investigative TV reportage. Court holds no IP: eye clinic advertised and solicited public to visit; no invasion of private space, no eavesdropping on private conversations. No trespass: offices not disrupted, no interference with possession of property. Businesses must realize that some customers may conceal true identities. No fraud: "any person of normal sophistication would expect...investigative journalists well known for ruthlessness [to break their] promise to wear kid gloves." Libel case allowed to proceed; later thrown out on summary judgment. |
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No. 99-1687 |
Union negotiators involved in bitter negotiations conversed by cell phone. Conversation illegally intercepted and sent to radio station talk show host who played the tape. In a suit against Vopper, the radio talk show host, the union negotiators charged that he broke the law by intentionally disclosing the contents of an electronic communication when he or she "know[s] or ha[s] reason to know that the information was obtained" through an illegal interception. | Even if Vopper had reason to know that the tape was of an illegal interception of a cell phone conversation, his disclosure was protected by the First Amendment. Vopper played no part in the interception, the conversation was about a matter of public interest and the press is generally protected by the concept that it cannot be punished for publishing truthful, lawfully obtained information--at least if it was a matter of public interest. Dissenters: "Surely the interest in individual privacy...must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations." |
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False light |
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Elements: (1) Highly offensive to a reasonable person (2) False (3) Communicated to the public (4) with knowledge of, or reckless disregard of, the falsity |
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Time, Inc. v. Hill |
Three escaped convicts hold Pennsylvania family hostage for 19 hours in 1952, inspiring book and play, "The Desperate Hours." Life magazine report on 1955 play hypes reality of a tense but peaceful situation into a tale of a "heroic...besieged family...roughed up...by brutish convicts..." Hills sue for invasion of privacy. Lower courts uphold false-light claim but U.S. Supreme Court reverses. |
Three years after NYT v. Sullivan, Court holds that all plaintiffs in false light suits involving newsworthy issues must prove NY Times actual malice. Sanctioning press for mere negligence in reporting facts in news articles would unduly burden First Amendment freedoms. |
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Reporter for Cleveland Plain Dealer embellishes facts in story about widow and family of man killed in bridge collapse. Story falsely implies reporter interviewed widow, whom he describes as wearing "the same mask of non-expression" he had seen at husband's funeral. Cantrell sues for false-light IP, claiming story also exaggerated family's poverty. Supreme Court agrees, noting "significant misrepresentations." |
Court holds reporter and newspaper acted with NY Times actual malice but declines opportunity to apply Gertz v. Welch and let states set own fault standards for false-light suits by private persons. Most jurisdictions still hold private plaintiffs to actual malice standard--possibly because false-light IP has less sting than defamation: less harm, higher fault. Minority of states allow proof of negligence. |
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Duncan v. WJLA-TV, Inc. |
Linda Duncan sues Washington, D.C., television station for airing newscasts with segment on treatment for genital herpes, which zooms in on her as pedestrian on a busy Washington street. In 6 p.m. broadcast, full-face shot of Duncan with no voice-over is followed by a stand-up, in which reporter says, "For the 20 million Americans who have herpes, it's not a cure." In edited 11 p.m. newscast, news anchor reads the same words at same time as tape rolls with same shot of Duncan. Court dismisses Duncan's suit as to 6 p.m. newscast, but allows suit as to 11 p.m. newscast to proceed, holding that juxtaposition of film and voice-over supports an inference Duncan had the disease. |
Graphic demonstration of the need to match pictures and stories and the dangers of using generic or unrelated shots to illustrate a point in a story. Most false light suits today involve editing or writing errors or errors in judgment. Plaintiffs must show that (a) publication put them in a false light, (b) false light would be offensive to a reasonable person and (c) fault by the publisher (usually actual malice). |