Chapter 5 Review Where did the right to privacy come from? 1890 article in the Harvard Law Review written by Samuel Warren and Loius Brandeis Article argued that advances in technology and the voyeurism of urban newspapers necessitated new legal protections for privacy. 4th Amendment recognizes a citizens? reasonable expectation of privacy What are the four torts of privacy? The publication of intimate private facts Intrusion: A physical or technological invasion of a person?s privacy False light: The public portrayal of someone in a distorted or fictionalized way Appropriation: The unauthorized commercial exploitation of someone?s identity What are the elements for a private fact case? Publication of private information that: Would be highly offensive to a reasonable person Ex. If the media reveal intimate information about illnesses, mental disorders, medical procedures, and hospitalizations without consent of the subject Is not of legitimate concern to the public What are the defenses to a private fact case? Public Domain Has to be widely published First Amendment protects info that is lawfully acquired if it is not highly offensive Newsworthiness (or public info) Consent Can be implied?being involved in a newsworthy event implies consent to be photographed What are the elements of intrusion? Reasonable expectation of privacy Highly offensive to a reasonable person Only takes one person- doesn?t have to be widely published Secretly recorded conversations Overly aggressive surveillance Long distance photo with a telephoto lens What is the general rule about filming, photographing and recording? The media can record or take pictures of what is easily seen or heard in public or quasi public places Public - People can photograph what can easily be seen or heard Quasi-Public - Like a mall, which is a business and can set their own rules but the public is let in and is free to move about When is intrusive behavior typically found not to be highly offensive? When revealing something that would be of public benefit What are the rules about secret recording (hidden cameras)? See Dietemann v. Time, Inc. May not be an intrusion when in a business setting and the expectation of privacy is lower, but is considered an intrusion while in a private place Basically, they are prohibited and are considered an intrusion. The federal courts affirmed that a person?s home, or in this case, Dietemann?s home, ?was a sphere from which he could reasonably expect to exclude eavesdropping newsman.? What are the elements of a trespass? Physical entry onto private property without the consent of owner The violation lies in the act of the trespass, not in what is learned or published as a result of it. Punitive damages normally award only if trespass is willful or malicious. What is the defense of custom and usage? See Florida Publishing Co. v. Fletcher. Journalists accompanying officials into private places after a calamity is so common that the law has created implied consent. It is similar to a magazine salesperson knocking on a person?s door. Both acts are so customary that the law recognizes a privilege for the entries, ?custom and usage.? Florida is one of the few states that recognizes this Custom and Usage exception to a trespass claim. What are the elements of a false light tort? See Cantrell v. Forest City Publishing Co. Dissemination of highly offensive false publicity with knowledge of and disregard for the falsity Distortion: When media omits info or uses it out of context Fictionalization: The addition of fictional dialogue or characters to what are otherwise essentially factual works Minor falsification is not considered false light When must a plaintiff prove ?actual malice? in a false light case? See Time, Inc. v. Hill. Public figures must prove actual malice Private figures only need to prove negligence Actual malice must be proved for private figures if they are involved in a newsworthy event. What are the defenses for a false light case? What?s happening in Florida? False light plaintiffs must meet a fault requirement Florida Supreme Court does not recognize false light What are the elements of appropriation? What?s happening in Florida? Remember the Anderson case from class. Unauthorized use of another person?s name or likeness for commercial usage Advertisements: Using someone?s picture in an advertisement without their consent Jennifer Lopez and Marc Anthony have filed a lawsuit against high-end baby carriages for misappropriation of their images. Lopez and Anthony were photographed using the carriage product, but that image was used in a commercial for the carriage company, which is illegal Look-alikes Public Trade: Christie Brinkley sued to prevent a store from selling posters with her picture on it. What are your defenses if you get sued for appropriation? See Zacchini v. Scripps-Howard First Amendment: It is a constitutional privilege to disseminate information of public interest Persons who pose or appear with public officials may not claim their identity has been appropriated if the picture is taken in a public or semi public place Zacchini v. Scripps-Howard: Media broadcasted Zacchini?s entire cannonball act, which might prevent people from paying to see it It?s why they only show clips of big bands or speakers here on campus and why they can?t show they whole thing Newsworthiness Consent Must be mentally competent, parents must sign for minors Oral or implied agreement is not satisfactory What are the elements for an emotional distress lawsuit? Outrageous conduct by the media is thought to cause severe anxiety in private persons Intentional Infliction: So outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community What?s the difference between private figures and public official/figures suing for intentional infliction of emotional distress? See Hustler Magazine v. Falwell Private Figures: WESH Orlando news showed a broadcast of the medical examiner holding up the skull of a deceased girl that had been abducted 3 years earlier. WESH settled with the family (intentional infliction) Public Figures: Must prove actual malice Hustler Magazine v. Falwell: Hustler Magazine published a parody of Preacher Falwell being drunk and having his ?first time? with his mother in an outhouse Falwell lost the case because it was a parody, not claiming to be true. ?Outrageousness? standard of liability is unconstitutional because it is so subjective What is participant monitoring? What is the law in Florida? How is this different from the federal law? Participant Monitoring: At least one person is aware of a secret recorder Federal law permits one party to record a conversation without telling the other party. Is considered no more intrusive then orally retelling the conversation to a third party Florida law does not permit participant monitoring Just video is not illegal, but video with sound is illegal Do reporters trespass when they misrepresent themselves to acquire information from public businesses? Supreme Court is divided on this issue Court ruled it was not trespassing when ABC reporters posed as patients in order to investigate an Eye Center Court ruled that it was trespassing into nonpublic areas of Food Lion when reporters misrepresented themselves on job applications to uncover information about low quality meat. When is the media responsible for physical harm, which results from incitement, negligence or lack of duty not to publish material due to foreseeable harm? Physical harm: Person emulates what have seen on tv or read Media is only held responsible if it can be proven that the media ?incited? harmful action This rarely happens
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