|Invasion of Privacy and the Media: The Right "To Be Let Alone"|
by John A. Bussian and Paul J. Levine
Updated August 2004
I. Introduction. Categories of Privacy Violations.
2. Has the Newsgatherer Violated a "Sphere of Privacy" from Which the Plaintiff Reasonably Expected the Press To Be Excluded?
3. Is the Conduct Plainly in the Public View, and the Area Generally Outside the Privacy Sphere?
4. Is the Newsgatherer Guilty of Overzealous Surveillance or Shadowing -- Conduct That May Amount to an Exception to the Rule That Conduct Clearly Within the Public View Is Not Actionable?
5. Has the Defendant Violated Florida's "Interception" Statute Which Prohibits Eavesdropping, Taping, and Bugging Without Consent?
6. Has the Plaintiff Consented to the "Intrusion"?
C. Publication of Private Facts.
2. Florida Cases Involving Private Facts.
2. Negligence Is Not Enough.
About the Authors
One man's gossip may be another man's news, but distinguishing between the two is often the key in determining whether the press is guilty of "invasion of privacy."
Whether an article or broadcast is newsworthy, whether the information was gathered in an objectionable fashion, whether truthful information is nonetheless highly offensive -- all are considerations in weighing individuals' claims against the news media. Invasion of privacy is a tort, a civil wrong, which can lead to jury trials and potential claims for compensatory and punitive damages. It also places judges in the unfamiliar and uncomfortable role as "editors" of last resort.
The right of an individual to be free from invasion of privacy can be expressed in several different ways. Sometimes it is called the right "to be let alone." Cooley, Torts, 29 (2d ed. 1888). Often it is seen as a geographical area, "a kind of space that a man may carry with him into his bedroom or into the street." M. Konvitz, Privacy and the Law: A Philosophical Prelude, 31 Law and Contemporary Problems, 272, 279-80 (1966).
Invasion of privacy is a relatively recent addition to American law. Rather than evolving from the English common law, as did libel, invasion of privacy can be traced directly to an influential article by Samuel D. Warren and Louis D. Brandeis, later to be a Supreme Court Justice [Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)]. They argued for the creation of a private remedy -- a lawsuit -- to vindicate privacy rights. Writing before the era of electronic eavesdropping, telephoto lenses, and other modern technology, Warren and Brandeis prophesied that "mechanical devices threaten to make good the prediction that `what is whispered in the closet shall be proclaimed from the housetops'." Id. Not surprisingly, American courts today do not look kindly upon the media in these cases. However, the media's exposure to liability can be minimized through a grounding in privacy law.
A two-step process determines whether the press is liable for invasion of a person's privacy:
It is possible to define four different, though overlapping, forms of invasion of privacy:
2. appropriation of a person's name or likeness;
3. public disclosures of embarrassing private facts; and
4. publicity which places a person in a false light.
There are few ironclad rules in the law, but it is still possible to guard against the risk of unnecessary litigation in each of the four privacy areas.
2. Photographs and Tape Recording -- Taking photographs of a person or his property in a private place may be an invasion of privacy. Tape recording a person without his consent may invite damage awards, and, in Florida, also constitutes a crime. Sec. 934.03(2)(d), Fla. Stat. (1995).
2. Property Rights -- If someone is selling admission to a performance, it may be an invasion of privacy for the press to "give it away" with unauthorized broadcasts or photographs.
C. Private Facts.
2. Newsworthiness -- Even truthful accounts are actionable if they contain highly offensive details not of legitimate concern to the public.
D. False Light Publicity.
2. Photographs out of Context -- Using file photos or film to illustrate a story can imply falsely that a person is involved in a scandalous event.
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A more detailed look at invasion of privacy, including the constitutional defense, follows:
II. Categories of Privacy Violations.
Invasion of privacy by intrusion is defined as follows:
This section discusses invasion of privacy by intrusion, especially as it pertains to the broadcast media and news photographers, by raising certain questions that should be asked in analyzing potential liability for unreasonable intrusion. The section also suggests certain standards of conduct to be followed by reporters and photographers to avoid liability.
The "intrusion" variety of invasion of privacy is related to the common law tort of trespass. The gist of the wrongful act is a physical intrusion into a place where the reporter has no lawful right to be, i.e., peering into windows, tape recording conversations of others without consent, or reproducing private documents without consent. Sometimes the intrusion is not physical, but is accomplished by electronic devices or telephoto lenses. Generally, a reporter or photographer is acting lawfully when in a public area. Yet, this is subject to exceptions too, depending on the offensiveness of the intrusion. See id. for illustration. A reporter's liability for intrusion does not depend on the subsequent publication of the information gathered.
In order to determine whether particular conduct falls within this definition, it is useful to ask a number of questions:
Under the First Amendment, the media has the right to gather news from any source by lawful means. See Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978). The First Amendment does not protect those who commit torts and crimes in the name of newsgathering. In Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971), claims of illegal or unethical entry were made against a magazine by a journeyman plumber engaged in the supposed practice of healing with clay, minerals, and herbs. Using the ruse of seeking the healer's services to gain entrance to his office within his home, two magazine reporters secretly photographed and recorded the healer's examination of one of them. In upholding a judgment for damages in favor of the healer, the Ninth Circuit affirmed the existence of a sphere of reasonable privacy expectations, stating that there is no First Amendment interest in protecting the news media from their own calculated misdeeds. Although the issue had not been decided squarely in California, the Ninth Circuit had "little difficulty in concluding that clandestine photography of the Plaintiff in his den and the recorda tion and transmission of his conversation without his consent resulting in his emotional distress warrants recovery for invasion of privacy in California." Id. at 248. Two factors seemed to guide the federal appeals court in ruling that the reporters were guilty of an unlawful intrusion: (a) the activities all took place in Dietemann's home, an area traditionally deserving the greatest protection; and (b) the reporters gained entry to the home by subterfuge, i.e., posing as patients.
In a more recent case with similar facts, Prime Time Live investigated reports that an eye clinic was performing unnecessary procedures. Desnick v. Capital Cities/ABC, 851 F. Supp. 303 (N.D. Ill. 1994). The complaint alleged that the reporters promised not to engage in "surveillance ambush journalism," but the defendants hired "undercover" patients to visit the clinic with concealed audio and video recorders. The plaintiff sued for trespass, intrusion, fraud, breach of contract, and (in an unrelated matter) defamation. The court dismissed each of the invasion of privacy theories, leaving only the breach of contract (for breaking the no-ambush promise) and defamation claims.
In Food Lion Inc. V. Capital Cities/ABC Inc., 27 Med. L. Rptr. 2409 (4th Cir. 1999), the plaintiff attempted to disguise an invasion of privacy claim as state law fraud, duty of loyalty, and trespass claims. The U.S. Court of Appeals for the Fourth Circuit reversed the trial court judgment that ABC committed fraud and unfair trade practices and that misrepresentation of a resume alone is not grounds for a jury finding of trespass. However, the Court did affirm the jury finding that defendants trespassed against the plaintiff for newsgathering on the job, when the ABC employees were said to have been hired to preserve Food Lion's confidences. Finally, the court affirmed the trial court s refusal to allow Food Lion to recover damages that essentially flowed from a telecast whose truth was not challenged by Food Lion in the litigation.
Ordinarily, reporters or photographers are liable for intrusion only through their own affirmative acts. Therefore, two well-known columnists who published details of documents that were removed improperly from a senator's office were held not liable to the senator for intrusion when they had no role in obtaining the documents. Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969). Similarly, in Bilney v. The Evening Star, 406 A.2d 652, 43 Md. App. 560 (1979), a newspaper was held free of liability for publishing the dismal academic records of six University of Maryland basketball players, where the reporters did not participate in illegally obtaining the players' transcripts. However, the court left unanswered the question whether two student reporters could be held liable for actually obtaining the transcripts for which they were paid $125 by the Washington Star. Media liability for publishing materials unlawfully obtained by others may be expanding, however. Recent cases have demonstrated a split among federal circuit courts of appeals on this issue. For example, in Bartnicki v. Vopper, 200 F.3d 109 (3d Cir. 1999), an unknown person taped cell phone conversations between two union officials. The tapes were delivered to a union opponent, who made them available to the media. Excerpts from the tapes were then broadcast on local radio stations. The union officials sued the media defendants for violation of state and federal wiretap laws. The court held that the First Amendment rights of the defendants prohibited the damages provisions of the wiretap statutes from being enforced against the press.
Conversely, in Peavy v. WFAA-TV, 221 F.3d 158 (5th Cir. 2000), neighbors of a school board official taped hundreds of his cordless telephone conversations and provided them to a WFAA reporter. The tapes were never aired, but an award-winning series of reports based in part on their contents was broadcast. The school board official, after being acquitted of bribery charges, sued the television station. Noting that the reporter had "participated" in intercepting the phone calls (he had, for example, told the couple who recorded the conversations not to edit them), the court held that WFAA and the reporter were potentially liable under the wiretap statute. The Supreme Court has agreed to review the issues raised by these cases and should issue a decision sometime in 2001.
In attempting to predict whether newsgathering efforts are likely to pass muster, it should be remembered that the majority of courts adhere to the view that the First Amendment does not confer a right of access to news sources not available to the public generally. See Houchins. A photographer with WTMJ-TV in Milwaukee found this out the hard way upon his refusal to leave a crime scene cordoned off to the public. The photographer's claim, following his arrest on disorderly conduct charges for his refusal to leave the scene, that the First Amendment gave him a right of access to the scene was unavailing. Oak Creek v. Ah King, 436 N.W.2d 295 (Wis. 1989).
Going even further than Oak Creek, the Second Circuit Court of Appeals, in dicta, censured both the government and media for their actions in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995). Treasury Agents agreed to be accompanied by a camera crew from CBS's "Street Stories" in the agents' execution of a search warrant. In fact, the agents asked the crew to film certain footage. The Second Circuit noted CBS' compliance with the requests and called the actions of both government and media "excessive." With the increased use of "ride along" investigations, this case points out the importance that the media maintain its independence from the government not only to minimize liability but also to safeguard its status as a neutral reporter.
The federal court decisions in Pearson v. Dodd, 410 F.2d 701 (D.C. Cir. 1969) and Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) arguably have established a federal right of privacy paralleling state privacy torts but distinct from the federal constitutional privacy right emanating from the fundamental choice concept. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). Under this theory, the newsgatherer is liable when he invades a "sphere of privacy" -- such as a person's home as in Dietemann -- which the person reasonably believes to be off limits to the news media.
The "sphere" is determined from the plaintiff's viewpoint. In Dietemann, the court found that the covert activity of the Life reporters in photographing and recording the plaintiff within the confines of his personal residence supported the jury's verdict against the magazine. Conversely, the Eighth Circuit has held that a reporter for a radio station who overheard a commotion when a municipal judge was arrested and jailed for DWI, and who thereafter recorded the commotion made by the judge in the jail, could not be held liable for intrusion. Holman v. Central Ark. Broadcasting Co., 610 F.2d 542 (8th Cir. 1979). In granting summary judgment, the court found that the judge's boisterous complaints in the jail were not made with the expectation of privacy or confidentiality. Although the judge's lawyer requested that the reporter not record any statements made by the judge, the appellate court adopted the trial court's findings that the judge knew, as he yelled and cursed at the top of his voice, that the newsman had recording equipment.
In contrast, a federal prisoner sued NBC for invasion of privacy for filming him without his permission while he was alone in the prisoners' exercise cage, wearing only gym shorts. In Huskey v. National Broadcasting Co., 632 F. Supp. 1282 (N.D. Ill. 1986), the prisoner alleged his expectation that the only persons able to see him would be those persons to whom he might be exposed as a necessary result of his incarceration. The prisoner purportedly told a prison guard that he did not want to be filmed and did not consent to being filmed. NBC countered by arguing that filming a person in a publicly visible area "cannot give rise to an intrusion claim." The district court disagreed and refused to dismiss the prisoner's lawsuit because the court was unable to find precedent for NBC's position that no area of a prison falls within a prisoner's protected privacy sphere and that its actions were not "highly offensive" as a matter of law. The court found those to be factual issues that could not be decided at the pleading stage of the case.
Another view on the privacy sphere of incarcerated individuals was provided in Jenkins v. Winchester Star, 8 Med. L. Rep. (BNA) 1403 (W.D. Va. 1981). The Winchester Star published a photograph of the plaintiff sleeping in the local jail without his knowledge or permission, but purportedly with the permission of the chief jailer. The plaintiff sought relief for violation of his federal constitutional right of privacy under 42 U.S.C. Sec. 1983. Although the court granted the defendant's motion for summary judgment, it stated that prison inmates retain a limited privacy right which is protected by the U.S. Constitution. The court found, however, that publication of the prisoner's picture was not violative of any federal constitutional right of privacy, although it "might" state a valid claim for libel and invasion of privacy in a state court suit. Id. at 1404. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 5 (1978).
And in a decision that could curb newsgathering, law enforcement officials were found to violate a search victim s Fourth Amendment rights, as well as his or her privacy rights under 42 U.S.C. Sec. 1983 by inviting the media to "ride along" in conducting the search of a home. Wilson v. Layne, 526 U.S. 603 (1999). It is worth noting that a ride along journalist could be exposed to similar liability were a search victim to allege that the police and the journalist acted jointly or conspired in planning an illegal search.
3. Is the Conduct Plainly in the Public View, and the Area Generally Outside the Privacy Sphere?
In Jacova v. Southern Radio & Television Co., 83 So. 2d 34 (Fla. 1955), plaintiff was an innocent customer filmed during a gambling raid on a cigar store. In plaintiff's right of privacy action, the court granted summary judgment to the television station, finding a qualified privilege to broadcast the name or photograph of a person who became an "actor" in a newsworthy event:
A St. Petersburg television station was sued after it broadcast a videotape depicting the plaintiff being arrested while dressed in underwear and a T-shirt. The court in Spradley v. Sutton, 9 Med. L. Rep. (BNA) 1481 (Fla. 6th Cir. Ct. 1982), found that the embarrassment the plaintiff may have suffered as a result of the broadcast was inadequate to defeat the right of the press to cover the arrest, which was an event of legitimate public concern. Further, the court held that because plaintiff was visible to the public in his underwear when arrested, "[t]here could be no liability for giving further publicity to what [plaintiff] himself . . . left to public view." Id. at 1483.
The more difficult cases under the "plain view" doctrine involve situations that skirt the boundaries of the private facts privacy tort and the cause of action for intentional infliction of emotional distress. In Cape Publications v. Bridges, 423 So. 2d 426 (Fla. 5th DCA 1982), rev. denied, 431 So. 2d 988 (Fla.), cert. denied, 464 U.S. 893 (1983), plaintiff had been held hostage by her husband and had been forced to disrobe in an effort to prevent her escape. The plaintiff's husband shot himself and the frightened wife rushed from the building wearing only a dishtowel clutched against the front of her body. Emphasizing the newsworthiness of the event and stating that at some point the public interest in obtaining information predominates over an individual's right of privacy, the court reversed a jury verdict in favor of the plaintiff. Since the case turned on the legitimate public interest of the event, rather than on the fact that Mrs. Bridges may have been outside the privacy sphere when the photo was taken, it probably fits more neatly into the "private facts" category of privacy litigation in which newsworthiness is the classic defense. In disposing of the Bridges case, the court declared:
Although publication of the photograph, which won industry awards, could be considered by some to be in bad taste, the law in Florida seems settled that where one becomes an actor in an occurrence of public interest, it is not an invasion of her right to privacy to publish her photograph with an account of such occurrence.
Another case in point was decided by the California Supreme Court in June, 1998. A passenger injured in a motor vehicle accident was found to have no claim for invasion of privacy for television news footage of the passenger pinned in her vehicle at the accident scene. However, the court found that the passenger had a justifiable expectation of privacy inside the air-rescue helicopter that transported her to the hospital and that she had a viable invasion of privacy claim for the broadcast of footage taken in the helicopter. Shulman v. Group W Prods., Inc., 955 P. 2d 469, 74 Cal. Rptr. 2d 843, (Cal. 1998)
Strictly speaking, the newsworthiness of the information sought is not a defense in an intrusion case. For example, if there has been a highly offensive intrusion upon seclusion, the defendant is liable even if the information gathered is newsworthy. In close cases, however, the newsworthiness of the subject matter may lead judges to hold that no intrusion has been committed.
In the famous Galella v. Onassis litigation -- "Galella I," 353 F. Supp. 196 (S.D.N.Y. 1972), rev'd in part, 487 F.2d 986 (2d Cir. 1973) and "Galella II," 533 F. Supp. 1076 (S.D.N.Y. 1982), a freelance photographer sued Jackie Onassis for false imprisonment. She, in turn, counterclaimed for intrusion. The photographer's motion to dismiss the counterclaim was denied on the basis that the photographer had hounded Mrs. Onassis relentlessly by photographing her at point-blank range on sidewalks, tennis courts, and riding trails and by hiding in cloakrooms and bribing employees of businesses patronized by Mrs. Onassis.
The plaintiff twice was found in contempt of a restraining order and a permanent injunction was issued prohibiting him from photographing Mrs. Onassis or the Kennedy children from less than 50 yards and prohibiting him from approaching within 100 yards of their New York apartment. The court in "Galella II" noted that "systematic public surveillance" of another could be construed as a plan to intrude on another's privacy. Stating that crimes and torts committed in newsgathering are not protected by the First Amendment, the court found that the plaintiff's constant surveillance and intrusive presence were unwarranted and unreasonable when weighed against the de minimis public importance of the daily activities of Mrs. Onassis. "Gallela II," 533 F. Supp. at 1105 (quoting "Galella I," at 487 F. 2d at 995-96).
A reporter's trespassing upon private property, without more, will not trigger potential liability under the Onassis case. In its 1993 decision in Howell v. New York Post Co., 612 N.E.2d 699 (.Y.), aff'd in part, 619 N.E.2d 650 (N.Y. 1993), the New York Court of Appeals held that a reporter's trespassing to photograph the plaintiff, who was outdoors, from a distance did not remotely approach the standard of Onassis-type liability. However, in April 1996, a federal trial judge in Pennsylvania applied Florida privacy law (because the underlying events occurred there) to Onassis-like facts and entered an injunction against two "Inside Edition" journalists. Citing the Florida Supreme Court's decision in Cason v. Baskin, 20 So. 2d 243 (Fla. 1944), the federal judge found that the defendants were probably liable on the plaintiff's intrusion claim -- justifying injunctive relief -- for hounding business-managing family members. See Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996).
5. Has the Defendant Violated Florida's "Interception" Statute Which Prohibits Eavesdropping, Taping, and Bugging Without Consent?
In Shevin v. Sunbeam Television Corp., 351 So. 2d 723 (Fla. 1977), the Florida Supreme Court rejected a television station's claim that newsgathering should be accorded special First Amendment protection when the station challenged Sec. 934.03(d), Fla. Stat., which prohibits interception of certain communications. The statute provides criminal penalties for unlawful electronic eavesdropping, which includes the tape recording of telephone conversations without all speakers' consent and the surreptitious recording of face-to-face conversations. In upholding the constitutionality of the interception statute, the court stated that the "First Amendment is not a license to trespass or to intrude by electronic means into the sanctity of another's home or office." Id. at 727. Likewise, the fact that the person subjected to the intrusion reasonably is suspected of committing a crime is no justification for the intrusion. Id.
The Shevin court rejected the argument that the statute infringed First Amendment "newsgathering rights," stating that "[n]ews gathering is an integral part of news dissemination, but hidden mechanical contrivances are not indispensable tools of news gathering." Id.
In contrast to Shevin, in Gardner v. The Bradenton Herald, 413 So. 2d 10 (Fla. 1982), the Florida Supreme Court found a related statute, Sec. 934.091, Fla. Stat., to be an unconstitutional prior restraint. That statute provided criminal penalties for those who prematurely published or broadcast the identity of any person notified pursuant to statute that a wire or oral communication to which he was a party had been intercepted. The same argument can be made for the unconstitutionality of Sec. 934.03(c), Fla. Stat., as it relates to the publication by a media defendant of the contents of an intercepted oral or wire communication which it legally obtains.
In Cassidy v. ABC, 377 N.E.2d 126 (Ill. App. Ct. 1978), the court considered an intrusion claim against a broadcaster for eavesdropping in violation of an Illinois statute. The plaintiff was an undercover police officer who was filmed making an arrest of a prostitute in her working quarters. Affirming a summary judgment for the broadcaster, the court held that no cause of action for intrusion exists against one who gathers news concerning the discharge of public duties by a public official.
6. Has the Plaintiff Consented to the "Intrusion"?
Photographs are often the subject of privacy litigation. In Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976), the trial court granted summary judgment in favor of the Florida Times Union for publishing a photograph of the "silhouette" of a teenager's body lying on the floor after a fatal fire. The teenager's parents sued the newspaper for invasion of privacy. The court noted that the fire marshal had invited the news media onto the premises and had requested specifically that the photographer take a picture of the silhouette.
The Florida Supreme Court, finding that implied consent can arise from custom, usage, or conduct, and that the news media customarily enter upon private property where a disaster has occurred, held that the trial court properly granted summary judgment. The court also noted that there was no one at the scene who objected to the photographer's entry. Id. at 918. Cf. Wood v. Fort Dodge Messenger, 13 Media L. Rep. (BNA) 1614 (Iowa Dist. Ct. 1986) (no invasion of privacy where television stations and newspapers entered plaintiffs' farm to photograph 167 dead cattle with express and implied consent of sheriff and farm's caretaker).
The Florida Supreme Court did not determine Fletcher on the basis that the press had a constitutional right to be present at the disaster scene. Indeed, the United States Supreme Court has declared that "[n]ewsmen have no constitutional right to the scenes of crime or disaster when the general public is excluded." Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972).
In Machleder v. Diaz, 538 F. Supp. 1364 (S.D.N.Y. 1982), aff'd in part, rev'd in part on other grounds, 801 F.2d 46 (2d Cir. 1986), CBS named the manufacturer of chemical products in a report on the dumping of chemical wastes. The cameraman stood at the front door of plaintiff's place of business and photographed an area eight to ten feet inside the building, which was illuminated by the camera's lights. The cameraman also confronted one of the plaintiffs outside the building, and after being refused an interview, followed the company president back to his office where the reporter was invited inside by the president's son. In granting summary judgment for CBS, the court noted that the president of the company was confronted in a semipublic area visible to the public and that the questioning did not amount to "hounding." The court found that an implied consent to trespass existed since the defendants were never told to leave and even were invited into the offices by the president's son.
The results in Fletcher and Machleder should be compared with Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So. 2d 810 (Fla. 1st DCA 1976). In Green Valley, the appellate court overturned summary judgment in favor of a media defendant which, at the request of the state attorney, trespassed on a private school's property while the state attorney conducted a search pursuant to a warrant. The court rejected the argument that the trespass was consented to by the state attorney on the ground that a law enforcement official is not empowered to invite people to participate in intrusions. Likewise, the court rejected the broadcaster's argument that the "common usage and custom" of the media permitted the intrusion. See also Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995).
In contrast to Fletcher and Machleder, however, the state attorney in Green Valley began the searches at 11:30 p.m. by rousing the headmaster and students from their beds, verbally harassing them, and ransacking the premises. Id. at 813-14. Further, the media defendants in Green Valley arguably breached the peace by inserting glaring lights into dormitory rooms. It is apparent that the carefully planned search in Green Valley is inherently dissimilar to the "great disaster" situation outlined in Fletcher and is not governed by the same considerations of immediacy as Fletcher. The cases are thus reconcilable.
Television cameras, by their very nature, can be considered "intrusive" in a nonlegal sense, and their use often can lead to litigation. In Lal v. CBS, 551 F. Supp. 356 (E.D. Pa. 1982), aff'd, 726 F.2d 97 (3d Cir. 1984), a university professor charged with failing to maintain a house he leased to five students brought an action for intrusion. The local CBS affiliate had photographed the house without the plaintiff's knowledge and broadcast the tape on the evening news. Although the plaintiff's complaint sounded in trespass and libel, the factual allegations could have been drafted to set forth a claim for intrusion. Nevertheless, the court granted summary judgment in favor of the station, correctly focusing on the fact that the broadcaster had obtained permission to enter the property from plaintiff's tenant and finding that the broadcaster could rely on the tenant's right to give permission.
In Stafford v. Hayes, 327 So. 2d 871 (Fla. 1st DCA 1976), a lobbyist sued a Tallahassee television station after its newsman photographed the lobbyist in a bar following the evacuation of the State Capitol due to a bomb threat. In affirming summary judgment for the station, the court noted that the television crew entered the bar to record the convivial atmosphere enjoyed by the state workers after being evacuated from their offices. Since the plaintiff was an "actor" in a newsworthy occurrence of public interest, the court held that the defendants were privileged to broadcast the videotape which included the plaintiff.
By contrast, in Le Mistral v. CBS, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978), the court upheld a jury verdict in favor of a restaurant on an intrusion claim. The CBS film crew had, in the words of the trial court, "burst into the plaintiff's restaurant in noisy and obtrusive fashion, and following the loud commands of the reporter," photographed the patrons dining. CBS, guilty of trespass through the admission of its own employees, took the position that it entered the restaurant in the course of newsgathering after the restaurant was cited for sanitation code violations.
The Stafford and Le Mistral cases can be distinguished in that the owner of the bar in Stafford consented to the presence of the film crew. It could be argued that the patrons in Le Mistral, as opposed to the restaurant owners, could not have maintained an action for intrusion since they had no legitimate expectation of privacy in a public restaurant.
Generally, intrusion exposure can be eliminated if the following statements are true:
b. the subject matter is newsworthy -- more specifically, it is of legitimate public interest; and
c. the newsgatherer did not enter, physically or by any other means, the "privacy sphere" where the subject of the newsgathering efforts reasonably would not expect to find him; or
d. even if a highly offensive intrusion otherwise would have been committed, the plaintiff or his agent consented to it.
There is a basic conflict between the newsgathering functions of the press and the privacy interests, at least in a nonlegal sense, of the subjects of inquiry. However, there are still methods by which the press can reduce its risks of litigation and liability. Such self-protective measures often can be reduced to the use of common sense and the exercise of good taste.
Robert Giles, former executive editor of the Rochester Times-Union, has written some ground rules for reporters who cover disasters and human tragedies such as those that occurred in Fletcher. Giles cautions reporters against breaking and entering in search of pictures or n interview; he advises reporters to show a sense of feeling and to make sure the survivors and relatives of victims understand that what has happened is news. He tells his reporters to be good listeners and establish a trust with those persons interviewed. Finally, he warns against the temptation of running with the pack, particularly good advice where others seem oblivious to invading privacy rights. Goodwin, Groping for Ethics in Journalism 223 (1983). These suggestions should be followed not only to avoid lawsuits, but also to improve the quality of journalism practiced by the reporter. By employing common sense and a measure of ethics, the skillful reporter will be able to acquire the same, or better, information than the reporter who is insensitive to intrusion issues.
The Restatement (Second) of Torts Section 652C (1977) defines appropriation of name or likeness as follows: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."
The appropriation category of invasion of privacy prevents others from using a person's name or identity for commercial gain. Ordinarily, the news media do not run afoul of this form of the tort. However, as the examples below show, seemingly innocuous news coverage or advertisements can lead to lawsuits.
The United States Supreme Court has had occasion to consider only one appropriation case, and that decision left the Court divided and the news media confused. In Zacchini v. Scripps Broadcasting Co., 433 U.S. 562 (1977), the Court ruled that the First Amendment did not immunize a television station from liability for its unauthorized broadcast of a 15-second "human cannonball" performance. Hugo Zacchini performed at an Ohio county fair and refused permission to have his act filmed by a television reporter. The reporter filmed the act anyway, and it was shown on the late news along with a highly favorable voice-over description. Despite what appeared to be a free advertisement for the act, Zacchini sued, seeking $25,000 in damages. Zacchini's theory was that the station had appropriated his professional property without consent. In allowing the case to go to a jury, the Supreme Court ruled, 5-4, that the newsworthiness of the event did not immunize the television station. "The broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance," Justice Byron White wrote for the majority. 433 U.S. at 575.
The Zacchini decision raises more questions than it answers. What if a newspaper photographer had asked permission to take a still photograph of the act, but that request too had been denied? If the photographer took rapid sequence photos, would the newspaper be liable if it published a page of pictures showing the entire flight of the human cannonball? Rather than provide the answer, Zacchini opens a Pandora's box of new legal problems not previously thought to exist in what Justice Lewis Powell called "ordinary daily news" coverage. See 433 U.S. at 580 (Powell, J., dissenting).
For there to be potential liability for "appropriation," it is generally necessary that a publication use a person's name or identity in a profit-making enterprise. Zacchini seems to be an exception to that rule, since the broadcast was done in a purely news context. The Court's theory was that the broadcast may have deprived Zacchini of profits from his own performance.
The usual appropriation case occurs in the unauthorized use of photos in advertisements. In football player Joe Namath's suit against Sports Illustrated, Namath v. Sports Illustrated, 352 N.E.2d 584 (N.Y. 1976), the magazine used a Super Bowl photo of the quarterback to advertise subscriptions in other Time, Inc. publications. The photo originally had been used with a sports story and was a legitimate "news" picture. The advertisement did not imply that Joe Namath endorsed Sports Illustrated. Such a use would have been a clear misappropriation of his name. Rather, the advertisement merely implied that readers can see Namath's photo and read articles about him in the magazine. The court considered that to be a proper use of the photo.
Generally, a legitimate news use of a person's identity will insulate the publication from liability for appropriation. The Court of Appeals for the Sixth Circuit in Lusby v. Cincinnati Monthly Publishing Corp., 17 Media L. Rep. (BNA) 1962 (6th Cir. 1990), stated that "something more than incidental publication or likeness" is necessary to support an "appropriation" privacy claim. In particular, the "defendant must have appropriated something of value beyond the value each person places on his own name or likeness." The Lusby court found the plaintiff's contention that a photograph of him with six wedding dolls (in connection with an article about litigation) was not an invasion of privacy by appropriation of name or likeness. In Nelson v. Maine Times, 373 A.2d 1221, 2 Media L. Rep. (BNA) 2011 (Me. 1977), a newspaper published a photo of a Penobscot Indian boy in a pastoral setting. The newspaper did not receive permission to photograph the child, whose mother sued for invasion of privacy. However, the photograph was not of direct commercial benefit to the newspaper. Accordingly, the Maine Supreme Judicial Court found there was no actionable invasion of privacy. Id. at 2013-14. The same result was obtained in Brooks v. ABC, 737 F. Supp. 431 (N.D. Ohio 1990), where an investigative TV report was deemed similar to a newspaper or magazine article on newsworthy matters and, therefore, was not actionable.
Even illustrations used to accompany articles can lead to liability. In Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978), Playgirl magazine published a drawing of a nude black man seated in the corner of a boxing ring. The man clearly resembled former heavyweight champion Muhammad Ali. Playgirl was found liable for appropriating Ali's likeness without his consent. The court held: "[Ali] has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the goodwill accumulated in the name of successful business entity." Id. at 729.
Although the case does not discuss the issue, it seems clear that had the portrait shown Ali wearing boxing trunks, he scarcely would be able to complain of appropriation. As a public figure, his likeness and name obviously could be used with legitimate news and feature articles. However, there was no legitimate news value to a depiction of Ali's nudity, and to the extent that the nude portrait would offend many persons, this case probably qualifies as a hybrid of appropriation and publication of private facts.
Slogans and other identity features also have been accorded protection from this form of invasion of privacy. When a Michigan corporation marketed "Here's Johnny" portable toilets, talk show host Johnny Carson sued for unfair competition, trademark infringement, invasion of privacy, and right to publicity. Carson v. Here's Johnny, 698 F.2d 831 (6th Cir. 1983). The court dismissed the copyright and trademark claims on the ground that Carson failed to establish a likelihood of confusion that Carson was connected with the product. However, the court upheld the claims for exploitation of Carson's slogan on the ground that the corporation had appropriated Carson's identity, notwithstanding the fact that neither his "name or likeness" was used. To the same effect is the July 1992 decision by the Ninth Circuit Court of Appeals in White v. Samsung Electronics America, Inc., 20 Media L. Rep. (BNA) 1457 (9th Cir. 1992. Although the Ninth Circuit affirmed the dismissal of the "Wheel of Fortune" hostess's statutory misappropriation claim (California Civil Code Section 3344(d)), the court ruled that a jury should decide her common law claim for misappropriating her identity. Despite a robot appearing in the challenged advertisement, instead of an actual likeness of Vanna White, the court allowed that part of her lawsuit to proceed to trial.
A celebrity's attempt to control the use of her name or likeness was the issue in Cher v. Forum International, 692 F.2d 634 (9th Cir.), cert. denied, 462 U.S. 1120 (1982). Cher gave an interview with the understanding that it would be used for a specific publication. However, at her request, the article was not printed in that publication. The author instead sold the interview to a different publication which used her name and picture in its own advertising. Cher sued, claiming misappropriation of her right to publicity. The Ninth Circuit upheld a judgment against the publication, finding that it knowingly exploited the interview by publishing advertisements implying that the entertainer had endorsed the publication.
The Ninth Circuit found differently, however, in a recent case brought by singer/songwriter Wood Newton for the use of the name, "Wood Newton," in the television show, "Evening Shade." Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994). The court found that (i) Newton had consented to the use of the name, despite his refusal to sign a consent agreement, and (ii) the use did not establish the commercialism required for a misappropriation claim.
In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), the Ninth Circuit reversed the trial court's dismissal of actress-singer Bette Midler's suit against an automobile company and its advertising agency for imitating Midler's voice in a commercial. Unsuccessful in its attempt to hire Midler herself to sing in the commercial, the advertising agency hired a former backup singer for Midler to imitate Midler's singing voice. The song performed appeared on a Midler album. While the trial court described the defendants' conduct as that "of the average thief," it held that the imitation of Midler's voice did not amount to a violation of the federal copyright law. However, the Ninth Circuit found that what Midler did have was a California common law property right in not having her distinctive voice deliberately imitated, and that entitled her to bring an appropriation-based "invasion of privacy" claim to trial. Id. at 462.
Cases also have arisen from the discussion of one person in the biography or fictionalized biography of another. In Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994), the Fifth Circuit Court of Appeals rejected the misappropriation complaint by a former undercover narcotics officer -- convicted of committing crimes in the course of his work -- against his former spouse/colleague for her fictionalized account of her (and his) experiences. A similar claim against CBS for its dramatization in "Top Cops" of an officer's murder was held non-actionable by the Third Circuit Court of Appeals. Lamonaco v. CBS, Inc., 22 Media L. Rep. 1831(3d Cir. 1994). (In a recent blow to the media, the Third Circuit Court of Appeals held that -- unlike defamation claims -- a misappropriation claim survives the death of the aggrieved. McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994)).
In Florida, a statute prevents using a person's name, photograph or likeness "for purposes of trade or for any commercial or advertising purpose . . ." without the person's consent. Sec. 540.08, Fla. Stat. (1993). The statute exists in addition to the common law tort of appropriation and provides for an award of punitive damages. However, the statute contains exceptions for "any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes." Sec. 540.08(3)(a), Fla. Stat. (1993).
In the only reported Florida case interpreting the statute, a newspaper was found not to have violated the appropriation statute when it reported that a woman arrested in Texas was the "Florida Citrus Queen" some 23 years before. See Westphal v. Lakeland Ledger Publishing Co., 361 So. 2d 841 (Fla. 2d DCA 1978). In another, Miller v. Twentieth Century Fox Int'l Corp., 29 Media L. Rep. 1087 (M.D. Fla. 2001), the Court found the defendant-television producer not to be liable for airing footage of the plaintiffs in front of a Daytona Beach motorcycle club which allegedly made the plaintiffs guilty of criminal conduct "by association" with the club's leader. There was no evidence in either case that the publication or broadcast was commercially motivated, and both involved reports that were communicated in the public interest.
The Restatement (Second) of Torts Section 652D (1977) provides that:
To a certain extent, all categories of invasion of privacy overlap, either with each other, or in the case of false light publicity, with the separate tort of defamation. Publication of private facts often is the final step in an invasion of privacy by intrusion. If "intrusion upon seclusion" is seen as a physical act in which a person's personal sphere is invaded, the tort may be completed at that point, and the plaintiff is entitled to a damage award even in the absence of publication. The plaintiff may have suffered no damages, however, unless publication is made, bringing to light whatever embarrassing facts were photographed, recorded, or learned.
By contrast, a "publication of private facts" case is not complete until, as the phrase suggests, the private facts are exposed to the public. A "private facts" case can be defended successfully by showing either that the material was not highly offensive or that it was newsworthy. Stated another way, even the highly offensive treatment of a subject will not render the news media liable for damages if it can be established that the material was newsworthy.
One of the first "private fact" cases occurred when a former child prodigy sued the New Yorker magazine for an article describing him as a middle-aged eccentric who had failed to live up to his youthful success. As a boy, William Sidis had been a mathematical genius and had graduated from Harvard University at the age of 16. Under the title, "Where Are They Now?", the New Yorker reported that Sidis was an obscure clerk who lived alone and collected old streetcar transfers. Charging that these were private facts, Sidis sued for invasion of privacy.
In Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir.), cert. denied, 311 U.S. 711 (1940), the Second Circuit found the article to be both newsworthy and lacking in highly offensive details. The case is important for two propositions. The first is that the passage of time does not necessarily deprive the public of legitimate interest in a newsworthy person or event. Although it had been 27 years since newspapers wrote about the child prodigy, a report on what he had become was not considered mere "popular curiosity." The court observed:
The second important point made in Sidis is that there is no liability unless the personal, embarrassing facts are "highly offensive." Sidis clearly was embarrassed by the story which essentially portrayed him as a failure, an eccentric, and a recluse. Yet, details of his personal habits likely would not have offended most persons in society:
In Wasser v. San Diego Union, 191 Cal. App. 3d 1455 (Ct. App.), rev. denied, 236 Cal. Rptr. 772 (1987), Wasser, a high school teacher, sued the newspaper for invasion of privacy for printing a story about a lawsuit between the teacher and his principal concerning an allegedly libelous teacher evaluation written about Wasser by the principal. In the article about the lawsuit between teacher and principal, the newspaper published the fact of Wasser's earlier acquittal of a murder charge involving his estranged wife. Since his acquittal, Wasser both had instituted and defended lawsuits related to the death of his wife. Various newspapers had reported several of Wasser's lawsuits following his acquittal of the murder charge.
The court granted summary judgment for the newspaper on Wasser's invasion of privacy claim. Wasser had conceded the truthfulness of the news article but contended that the statement concerning his acquittal was no longer newsworthy. The court found that the newspaper had not violated Wasser's privacy because the material contained in the newspaper article was already public, having been printed in seven news articles over eleven years. Moreover, the court found that the passage of time since the acquittal had not ended Wasser's status as a public personage for the purpose of the murder story partly because Wasser's series of lawsuits, which all bore some relationship to the death of his wife, had maintained the public interest in him. The court noted the legitimate function of the press in reminding the public of past history and former public figures, which can be matters of present public interest.
While there are few clear rules, there are some guidelines as to which "private facts" normally should not be subjected to public view. The following list contains several trouble areas which give rise to potential liability:
2. family quarrels;
3. humiliating illnesses;
4. intimate, personal letters;
5. details of home life;
6. photographs taken in private places;
7. photographs stolen from a person's home; and
8. contents of income tax returns.
Restatement (Second) of Torts Section 652D, comments (b), (g) (1977).
Likewise, it can be stated generally that matters of public record are not considered private facts and may be published freely:
2. the fact that a person is married;
3. military record;
4. admission to the practice of any trade or profession;
5. occupational licenses;
6. pleadings filed in a lawsuit;
7. arrest reports;
8. police raids;
13. natural disasters; and
14. homicide victims.
Generally, the "private facts" category of invasion of privacy concerns truthful articles or broadcasts. If the embarrassing, private facts were published falsely, a libel action or a "false light" privacy case would be the appropriate legal vehicle.
The news media have taken the position that there can be no civil liability for publishing truthful information, no matter how embarrassing or damaging it might be to the individual. However, the Supreme Court so far has refused to extend First Amendment protection to immunize the press from lawsuits based on truthful, but embarrassing, publication. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975); see also Taylor v. KTVB, Inc., 525 P.2d 984 (Idaho 1974); Cape Publications v. Hitchner, 549 So. 2d 1374 (Fla.), appeal dismissed, 493 U.S. 929 (1989). Should the Court do so, this category of invasion of privacy would be all but eliminated.
In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the Supreme Court had the opportunity to declare that all truthful publications were protected constitutionally from damage actions. In that case, an invasion of privacy suit was brought by the father of a girl who had been raped and murdered. A television reporter learned the victim's name from a court indictment which was open to public inspection. The plaintiff sought a jury trial for damages on the ground that his "zone of privacy" was invaded by the allegedly offensive broadcast. The television station and various news organizations which filed amicus curiae briefs sought a ruling that all truthful accounts are protected constitutionally.
Rather than creating blanket immunity for truthful accounts, the Court ruled only that the First Amendment does not permit a damage action for invasion of privacy when the truthful report was obtained from open judicial records:
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the United States Supreme Court struck down a Massachusetts statute that prohibited press access to rape trials of minor victims. The Court's opinion suggests that a claim under the private facts branch of privacy might lie, under certain circumstances, for publication of the names of victims of sex crimes.
Various courts presented with privacy claims based on information from other than public records nonetheless have relied on Cox Broadcasting to establish constitutional protection if the publication contains accurate information relating to public figures or is otherwise a matter of public concern. This "public interest" privilege has been found to prevent a suit brought by a private person if there is a "logical nexus" between that person's conduct and the matter of legitimate public interest. See Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980); see also Gilbert v. Medical Economics Co., 665 F.2d 305 (10th Cir. 1981); Bichler v. Union Bank, 715 F.2d 1059, vacated, 718 F.2d 802 (6th Cir. 1983). The "public interest" privilege is far from absolute, however, and courts will evaluate critically the "logical nexus" requirement. See, e.g., Vassiliades v. Garfinckel's Brooks Bros., 492 A.2d 589 (D.C. App. 1985).
While judging the connection between the complaining individual and the matter of legitimate public interest is fact-dependent, the analysis has been designed to give wide berth to free press rights. In the most closely watched privacy suit in recent memory, Shulman v. Group W Productions, Inc., 955 P. 2d 469 (1998), the California Supreme Court considered whether a defendant who broadcast footage of a victim's traumatic experience and comments at an accident scene and in an emergency helicopter invaded the victim's privacy. Emphasizing that the analysis of a claim for wrongful publication of private facts should produce predictable answers, the Court held, consistent with its view of the First Amendment, that the test for newsworthiness of private facts is whether the relevance of the disclosure is "greatly disproportionate" to a matter of legitimate public interest. And in holding that the disclosure of the plaintiff's private, medical facts and suffering was substantially relevant to the newsworthy subject of the broadcast (the rescue and medical treatment of accident victims), the Court cited a First Amendment restriction on privacy claims worth remembering, "Liability for disclosure of private facts is limited to the extreme case, thereby providing breathing space needed by the press to properly exercise effective editorial judgment."
Despite the difficulty of applying the public interest privilege, it offers strong constitutional protection for the news media. The Ninth Circuit has ruled that once a truthful article is deemed newsworthy, it would violate the First Amendment to return a damage award in favor of the offended plaintiff. In Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975), the court gave constitutional force to the newsworthiness defense contained in the Second Restatement of Torts, which states:
The Virgil case illustrates how a seemingly innocuous feature story can lead to expensive litigation. Sports Illustrated magazine prepared a profile of Mike Virgil, an expert body surfer. At first, Virgil cooperated with the magazine. Later, he attempted to revoke his consent to the interviews already given. The story portrayed Virgil as a showoff who, on various occasions, put out a cigarette in his mouth, dived down a flight of stairs to impress some women, purposely injured himself so he could collect unemployment compensation and go surfing, ate spiders, and bit off the cheek of a man in a gang fight.
When the case was returned by the Ninth Circuit to the trial court, Sports Illustrated won a summary judgment on the grounds that the facts were newsworthy and were not so highly offensive as to invade Virgil's privacy. The court found the strange details of Virgil's life neither morbid nor sensational:
A more difficult question arises when a newspaper publishes the name of the victim of a sex crime and the name was gathered from sources not in public records. A jury in Jacksonville returned a large verdict against a small weekly newspaper for the truthful publication of the name of a rape victim who reported the crime to the police. The newspaper learned the woman's name from reviewing police reports and inadvertently -- and against its own newsroom policy -- failed to delete the woman's name. Although the plaintiff relied on the Florida statute barring publication of the name of a rape victim rather than traditional invasion of privacy concepts, the lawsuit still must be considered a privacy case.
The U.S. Supreme Court, in a landmark June 1989 decision that overturned the jury verdict against the newspaper, held that damages cannot be awarded against a party publishing truthful information obtained by lawful means "about a matter of public significance" unless doing so serves a state interest of the highest order. See The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Florida statute which gave rise to the lawsuit and prohibits the disclosure of a rape victim's name, even when lawfully obtained, was found not to meet the constitutional criteria.
Public entities increasingly excuse refusal of access to public records by citing their fear of liability for disclosure of private facts within public records. In Doe v. New York City, 15 F.3d 264 (2d Cir. 1994), the Second Circuit Court of Appeals addressed the invasion of privacy claims against New York City for its announcement in a press release of the settlement of a discrimination claim -- arising out of Doe's HIV positive condition -- brought by Doe. Although Doe was not named in the release, he was identifiable. Such settlements usually are a matter of public record, but the city agreed to confidentiality in Doe's case. Overruling the district court, the Second Circuit held that an individual has a constitutional right of privacy in medical information and that, therefore, its disclosure could form the basis of an invasion of privacy cause of action. The case was remanded for trial.
The Florida Supreme Court first recognized the tort of invasion of privacy in the 1944 case, Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). A Florida census taker who was described in a book as an "ageless spinster" sued the author for invasion of privacy. Id. at 247. The court recognized the principle that public figures give up certain rights to privacy:
Invasion of privacy by publication of private facts could be accomplished, according to the Florida Supreme Court, only when "the community has no legitimate concern" in those facts. Id. More recent Florida cases continue to recognize the existence of the newsworthiness defense to this form of invasion of privacy:
2. (2) Florida's Third District Court of Appeal in 1993 denied recovery to a woman who claimed that a television news broadcast invaded her privacy by revealing her name change that occurred when she got divorced. The name change was a matter of public record. Woodard v. Sunbeam Television Corp., 616 So. 2d 501 (Fla. 3d DCA 1993). Accord Florida v. Johnson, 22 Media L. Rep. (BNA) 1058 (Fla. Palm Beach Cty. Ct. 1993) (mayor's publication of names of persons arrested for solicitation of sexual activity -- found in public record -- not actionable invasion of privacy); accord Florida v. Mackie, 22 Media L. Rep. (BNA) 1060 (Fla. Palm Beach Cty. Ct. 1993) (same);
3. (3) It did not invade a widow's right of privacy to publish a factual account of the murder of her husband, according to a trial court decision in Duval County in Nelson v. Globe Communication Corp., 2 Media L. Rep. (BNA) 1219 (Fla. 4th Cir. Ct. 1977);
4. (4) A newspaper article about a drug treatment program did not invade a woman's privacy when it published the factual statement that she had attempted to escape from the program's custody in Stevenson v. Nottingham, 4 Media L. Rep. (BNA) 1585 (Fla. Cir. Ct. 1978), aff'd, 371 So. 2d 604 (Fla. 2d DCA 1979);
5. (5) However, there was no newsworthiness in a newspaper advertisement stating "Wanna Hear a Sexy Telephone Voice? Call _______________ and Ask for Louise." The listed number was the correct telephone number for one Louise Harms, who successfully maintained a privacy lawsuit against a newspaper in Harms v. Miami Daily News, Inc., 127 So. 2d 715 (Fla. 3d DCA 1961);
6. (6) A newspaper published an article describing plaintiff's involvement in an altercation that took place in a public office. The information for the article was gleaned from the public records. The court in El Amin v. Miami Herald, 9 Media L. Rep. (BNA) 1079 (Fla. Cir. Ct. 1983), held the publication was not actionable;
7. (7) A witness who testified at a murder trial had no claim for invasion of privacy against writers of a song that implied her participation in the murder. While she was not a voluntary participant in the trial, she nonetheless was involved in an event of public interest, and her claim was precluded by the decision of a federal appeals court in Valentine v. CBS, 698 F.2d 430 (11th Cir. 1983); and
8. (8) Florida appellate courts have relied upon the Cox decision. The Second District Court of Appeal denied a claim by a rape victim against a television station that broadcast her testimony. Doe v. Sarasota-Bradenton Television, 436 So. 2d 328 (Fla. 2d DCA 1983). Accord Williams v. New York Times, 462 So. 2d 38 (Fla. 1st DCA 1984).
9. (9) A contract right to publish does not necessarily extinguish a plaintiff s invasion of privacy claim against the publisher. In Facchina v. Mutual Benefits Corp., 27 Med. L. Rptr. 2168 (Fla. 4th DCA 1999), the plaintiff entered into a contract with defendants which gave defendants the right to use his photograph for advertisements regarding the purchasing of life insurance policies. Plaintiff alleged that defendant published his picture in such a way that the ad to imply that he was homosexual and afflicted with AIDS. The appeals court held that "a person may have a contractual right to publish the likeness of another without breaching a contract giving him the right to publish, but may still abuse that right and publish in such a manner as to violate the subject s personal, privacy interests." The insurer-publisher essentially exceeded the scope of the plaintiffs consent to appropriate his name and likeness for commercial gain in violation of 540.08 of the Florida Statutes and invaded the plaintiff s privacy by publishing private facts.
But one 1991 Florida state court decision, while finding a traditional publication of private facts claim legally insufficient, offers a specter of another variety of invasion of privacy liability for publication of private facts. In Armstrong v. H & C Communications, Inc., 575 So. 2d 280 (Fla. 5th DCA 1991), the Florida Fifth District Court of Appeal used a modern-day application of the ancient "outrage" claim as a means to avoid the hurdles to a traditional publication of private facts invasion of privacy claim. The case arose from a broadcast by an Orlando area television station of a video tape of a missing child's skull on the 6:00 news. Relatives of the missing child sued the station. Not surprisingly, the traditional publication of private facts claim was found insufficient as a matter of law because the subject matter was deemed to be of legitimate public interest (a finding that triggers First Amendment protection of suits aimed at publication of true, but "private," facts). What makes the Fifth District's decision anomalous is that, despite its findings that the subject matter was of legitimate public interest, the court allowed the "outrage" claim to survive by holding that proof of publication of anything that could be found by a jury to be "outrageous" (which is only one of several requirements for a publication of private facts/invasion of privacy claim) could entitle a claimant to civil damages.
"Private facts" may come into play beyond the confines of civil lawsuits based upon invasion of privacy. In an important 1988 decision, the Florida Supreme Court found that a litigant's interest in preventing the disclosure of private facts is normally not sufficient to justify closure of judicial proceedings involving that person. A Panama City newspaper contested the closure of the divorce proceedings of Dempsey Barron, a Florida senator. The trial court, finding that there was "private" civil litigation in Florida, had closed the proceedings to the public and sealed the court file to prevent the disclosure of certain sensitive information affecting one of the parties. The intermediate appellate court reversed, ordering the court files opened to the public. In so doing, the appellate court found that the provision of the Florida Constitution precluding governmental intrusion into private lives did not create a right to private judicial proceedings. Florida Freedom Newspapers, Inc. v. Sirmons, 508 So. 2d 462, 463 (Fla. 1st DCA 1987). The Florida Supreme Court affirmed the decision, but noted that the Florida constitutional right to privacy could form a basis for closure under appropriate circumstances. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (1988). Such circumstances include, inter alia, complying with public policy as set forth in the constitution, statutes, and case law; protecting trade secrets or a compelling governmental interest (e.g., national security, confidential informants); and avoiding injury to innocent third parties. The court further noted that "it is generally the content of the subject matter rather than the status of a party that determines whether a privacy interest exists and closure should be permitted," and emphasized that a privacy claim may be negated if the subject matter concerns a position of "public trust" held by the individual seeking closure. Id. at 118.
A Florida trial court extended the Barron reasoning dangerously far in finding that the family members of murder victims have a disclosural right of privacy in even records which are public. Florida v. Rolling, Case No. 91-3832 CF A (Fla. 8th Cir. Ct. Jul. 27, 1994). However, Florida's Third District Court of Appeal squarely rejected the disclosural right in Doe v. American Lawyer Media, L.P., 639 So. 2d 1021 (Fla. 3d DCA 1994).
And in 1993 Florida's Fourth District Court of Appeal, following the lead of the United States Supreme Court in The Florida Star, affirmed the Palm Beach County Circuit Court's October 24, 1991 order in State v. Globe Communications Corp., 622 So. 2d 1066 (Fla. 4th DCA 1993), striking down as unconstitutional Sec. 794.03, Fla. Stat., which prohibits the publication of a rape victim's name. Although the decision is not binding on state courts outside Palm Beach County, it is instructive. Unlike the situation in The Florida Star case, the publisher in the Globe case had no public records source for the information; it was obtained through community sources. The court held that because the information was truthful, of legitimate public interest, and was in "the public domain" at the time of publication, publishing the victim's name could not be prohibited lawfully.
The Restatement (Second) of Torts Section 652E (1977) provides that:
While libel, slander, and false light publicity each require that false statements be made or implied about an individual, a false light privacy claim has special features. First, invasion of privacy by false light publicity does not require that the individual be defamed, that is, held up to scorn and ridicule. It is enough that he is given unreasonable and highly objectionable publicity that attributes false characteristics, conduct or beliefs to him. For example, calling a liberal Democrat a "conservative Republican" may not be defamatory, but it does place the politician in a false light before the public. In addition "false light" claimant generally need prove only nominal or minimal damages, whereas a defamation plaintiff must allege and prove special damages (e.g., mental anguish, damage to reputation). Finally, the challenged material must not be published merely to a third person, as in defamation, but publicized; that is, published to the public at large or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.
In Fudge v. Penthouse, 840 F.2d 1012 (1st Cir. 1988), four elementary school students were photographed with their thumbs down in objection to being separated from their male classmates at recess because of fighting. Later, a photograph and a story headlined "Little Amazons Attack Boys" appeared in Penthouse magazine. A brief editorial comment followed the article, stating: "In the battle of the sexes, we'd certainly score this round for the girls." In the same issue of the magazine, "amazon" was defined as "a sexually aggressive and insatiable female whose desires can only be quelled and satisfied" through the use of mechanical devices. In addition to alleging libel, plaintiffs alleged that the article presented them in a false light by implying their consent to Penthouse's use of the photograph and story, failing to note the girls' objection to the recess segregation, implying association with and endorsement of the magazine's views, and implying that the girls were masculine and dominating.
Addressing plaintiffs' false light claim that the article and photograph implied the plaintiffs' consent to Penthouse's use of the material and their endorsement of the magazine's editorial views, and, therefore, an "association between the plaintiffs and Penthouse," the First Circuit found that the photograph and article were described clearly in the magazine as having been "culled from the nation's press," thereby negating any inference that the magazine obtained the material from the plaintiffs. Id. at 1019. Further, the court noted that the magazine's editorial which followed the news article was attributed expressly to the magazine's editor and was in a different typeface from the body of the article, and, therefore, was not capable of bearing the implication that the plaintiffs had become associated with Penthouse by endorsing its views. Id.
In Braun v. Flynt, 726 F.2d 245 (5th Cir.), cert. denied, 469 U.S. 883 (1984), plaintiff sued Chic, a hard-core men's pornographic magazine, for false light invasion of privacy. Plaintiff was an amusement park employee who performed a novelty act with Ralph, the Diving Pig. The amusement park sold a postcard depicting Ralph diving toward the plaintiff, who was shown in the pool extending a bottle to the pig. Chic had obtained the consent of the amusement park's management to use of the photograph by misrepresenting the true nature of the magazine. Plaintiff successfully contended that the ordinary reader automatically would form an unfavorable opinion about the character of a woman whose picture appeared in Chic. Even if, as Chic contended, no reader would assume the plaintiff to be unchaste or promiscuous on the basis of her picture's publication, the court noted that the jury could have found that the publication of the picture implied the plaintiff's consent to the publication or her approval of the opinions expressed in Chic. In affirming the liability verdict against the magazine, the court noted that either finding would support the verdict that the publication placed the plaintiff in a false light highly offensive to a reasonable person. Further, the appellate court found the trial court correct in admitting the entire magazine into evidence rather than just the photograph so that the jury could be placed in the position of the ordinary reader in evaluating whether the publication placed the plaintiff in "false light." Cf. Dempsey v. National Enquirer, 702 F. Supp. 927 (D. Me. 1988) (content of National Enquirer such that highly objectionable association between that publication and plaintiff would not be made automatically by ordinary reader).
Photographs often provide the news media with problems in this area. Using generic or stock television film to illustrate crime or corruption stories can lead to lawsuits. See Jacova v. Southern Radio & Television Co., 83 So. 2d 34 (Fla. 1955). Newspapers and magazines which use file photos out of context also invite false light publicity litigation. See, e.g., Fils-Aime v. Enlightenment Press, 133 Misc. 2d 559, 507 N.Y.S.2d 947 (N.Y. App. Div. 1986) (suit for invasion of privacy where newspaper article on child pornography was accompanied by old photograph of plaintiff originally used by newspaper to illustrate story on beginning of school year).
The constitutional defense to damage actions is a comparatively recent event in First Amendment law. In 1964, the Supreme Court ruled in New York Times v. Sullivan, 376 U.S. 54 (1964) that a public official may not recover damages for a defamatory falsehood relating to his official conduct unless he proves with convincing clarity that the statement is made with actual malice. The Court defined actual malice as the knowledge that the statement is false, or the "reckless disregard" of its truth or falsity. Later decisions expanded the defense to include libel actions brought by "public figures." Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Associated Press v. Walker, 388 U.S. 130 (1967). A plurality of the Court in 1971 appeared to extend the First Amendment protection to any article or broadcast of public interest or concern, regardless of the public figure status of the plaintiff. Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). However, the expansion of First Amendment protection was short-lived. In 1974, a majority of the Court rejected Rosenbloom and held once again that the constitutional privilege applies only to cases involving defamation of public officials or public figures. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
The Supreme Court first applied the constitutional defense to a privacy action in Time, Inc. v. Hill, 385 U.S. 374 (1967). James Hill filed a lawsuit against Life magazine for reporting that the Broadway play, "The Desperate Hours," was a factual presentation of an incident involving the Hill family. The Hills had been held captive in their home by three escaped convicts. The play sensationalized the incident and added physical violence that had not occurred. While the article did not ridicule the family and thus was not defamatory, the article's suggestion that the play was factual arguably placed the Hills in a false light before the public inasmuch as all of the incidents in the play did not take place.
A jury awarded Hill $75,000 in damages. The sum later was reduced to $30,000, and the Supreme Court reversed that judgment in its entirety upon the ground that the First Amendment provided a constitutional defense:
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But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his official conduct.
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We find applicable here the standard of knowing or reckless falsehood, not through blind application of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon consideration of the factors which arise in the particular context of the application of the New York statute in cases involving private individuals.
The courts have held that "a plaintiff may not avoid the strictures of the burdens of proof associated with defamation by resorting to a claim of false light invasion." Moldea v. New York Times, 22 F.3d 310 (D.C. Cir. 1994); accord Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). And in some respects, the First Amendment protections against invasion of privacy claims are greater than against defamation claims.
Simple negligence or carelessness on the part of the writer will not be sufficient to hold the publication liable. Unless there is proof of reckless or knowing falsity, the publication cannot be held liable for false light invasion of privacy where the subject matter of the article is one of public interest. To this extent, therefore, the news media have more protection in a false light invasion of privacy case than they do in a defamation action. The First Amendment serves as a defense in defamation cases where the plaintiff is a public official or public figure. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Yet, the defense applies in privacy actions in all cases involving matters of public interest whether the plaintiff is a private or a public person.
Inasmuch as the Supreme Court recently has narrowed the category of persons considered public figures, it may be well for news media lawyers to attempt to characterize lawsuits as false light privacy cases, rather than libel lawsuits, when that is possible. Two decisions released the same day in 1979 by the Supreme Court appear to require that a person "thrust himself or his views into public controversy to influence others . . ." in order to be considered a public figure. In Hutchinson v. Proxmire, 443 U.S. 111 (1979), a research scientist who was well-known in his field, but was not known generally, was considered to be a private person for purposes of his libel suit against a U.S. senator. Likewise, Wolston v. Readers Digest Association, 443 U.S. 157 (1979) determined that a person involved in an espionage probe and convicted of contempt of court was not a public figure. He had not "engaged the attention of the public in an attempt to influence the resolution of the issues involved." Id. at 168.
Once the constitutional privilege is found to apply, the news media defendant generally will win the case, whether for libel or invasion of privacy. A plaintiff faces an extraordinary task in proving with "convincing clarity" that the writer either knew the falsity of his statements, or recklessly disregarded the truth. While it is difficult to prove actual malice, i.e., knowing or reckless falsity, it is not impossible. The surest path to trouble in either a libel or privacy case is for a wrier to invent details and events. When a reporter described the appearance of a woman he had never seen and misrepresented her family's poverty and the conditions of her home, the Supreme Court determined that false light invasion of privacy was proven with actual malice. See Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974). The Court reasoned that the writer must have known of the falsity of his account because he fabricated much of the account. Id. at 253.
3. Confusion in Florida Courts
The enduring problem with the false light publicity claim is that it duplicates a defamation claim. Not surprisingly, a number of states -- Georgia, Mississippi, North Carolina, and Texas to name a few -- have renounced false light as a viable theory of recovery.
Florida courts have been guided by the Supreme Court’s implied recognition of the tort in Agency for Health Care Administration v. Associated Industries, 678 So. 2d 1239 (Fla. 1996). In the decision, the Supreme Court commented on a theoretical false light claim and stated that falsity is the lynchpin of the claim. Still, considerable confusion has been spawned by Florida courts wrestling with a claim aimed at an unflattering message and cast as false light publicity or false light invasion of privacy.
The Fourth DCA’s opinion in Rapp sharpened the false light issues that need to be resolved by the Florida Supreme Court. Tellingly, Fourth DCA Judge Gross wrote, “Were we writing on a blank slate, we would be inclined to side with those courts rejecting the false light cause of action.” However, the Court went on to distinguish Gannett and reinstate the plaintiff’s false light claim, finding that the publication targeted by the plaintiff was not libelous in the classic sense. Two questions were certified to the Florida Supreme Court: 1) Does Florida recognize false light claims, and 2) If so, what are the elements of a false light claim?
The most recent decisions by the state circuit courts follow Gannett v. Anderson. In each case, the defendant was relieved of false light liability due to the operation of libel defenses.
Butler v. The Gainesville Sun, decided May 31, 2007 by the Alachua County Circuit Court, essentially says that the Second DCA’s decision in Heeken v. CBS was wrong, insofar as it denied defendants the benefit of truth as a defense to false light invasion of privacy. And the Court held that, for the same reason, the 2-year libel limitations period barred the plaintiff’s false light claim. The “judgment on the pleadings” entered in favor of The Gainesville Sun prompted the plaintiff to appeal to the First DCA, where the case is pending.
Virtually the same thing happened in Okaloosa County in Moll v. Florida Freedom Newspapers. Judge William Stone, following the Alachua County Circuit Court’s reading of Gannett v. Anderson, ruled that multiple libel defenses asserted by the media defendant operated to eliminate the false light claim, as well as the libel claim against the defendant. The case is also on appeal to the First DCA.Although the debate continues, Florida courts have been guided by the Supreme Court's recognition of the tort in Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976). In the decision, the Supreme Court addressed a false light claim, and held that falsity is the lynchpin of the claim. Still, considerable confusion has been spawned by Florida courts wrestling with a claim aimed at an unflattering message and cast as false light publicity or false light invasion of privacy.
Just as in libel cases, invasion of privacy litigation often can be avoided by adequate prepublication counseling. Even more so than with libel, potential invasion of privacy problems can be overlooked by writers and editors. A seemingly sympathetic or favorable story often can lead to an invasion of privacy action. For example, a newspaper's expos of a county home was scathing in its attack upon conditions there, but was sympathetic to the patients. Despite the sympathetic coverage, an 18-year-old patient sued the Des Moines Register on the "private facts" theory for reporting that she had been sterilized against her will. The Iowa Supreme Court affirmed a summary judgment in favor of the newspaper on the ground that the information was available in public records and was newsworthy. Howard v. Des Moines Register, 283 N.W.2d 289 (Iowa 1979), cert. denied, 445 U.S. 904 (1980). News articles or broadcasts accompanied by photographs of persons either uninvolved or only tangentially involved in the subject matter of the publication frequently lead to false light litigation. Until such time as newsgathering rights and truthful publication are immunized from liability -- and that day is not near -- caution is the byword when treading near the zone of personal privacy.
ABOUT THE AUTHORS
John Bussian practices law in his own firm in Raleigh, NC. He has been a member of The Florida Bar since 1980. A graduate of Duke University and Georgetown University Law School, he is national counsel to Freedom Communications.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.