Mass Media Outline
a. What does the law say about how we can say about each other? If not the law, who should regulate? Media? Public? Norms of civility? Market?
b. Information is a public good. We need it to survive and function in society. Therefore, we need to regulate information very carefully. Who gets to regulate? Media, law, etc
Haynes v. Alfred Knopf- Person who published book about the husband who drank excessively and was a bad husband.
In order to maintain an action for invasion of privacy: (1) the private facts publicized must make a reasonable person deeply offended; and (2) the public has no legitimate interest in the facts. Depicts private facts as bedroom/bathroom.
Gilbert v. Medical Economics- P was an anaseteoligst who was involved in two things of med mal. Magazine used her picture, talked about pysch problems and marital problems. Court held for the magazine, the disclosures were newsworthy to the topic.
Sipple v. Chronicle- Sipple was the person who stopped the president from being shot. Paper then released a story about him being gay.
Rule: There will be no invasion of privacy if two elements are met:
1-The facts were not private
2-The facts are newsworthy
Whether a reporter’s alleged intrusion into private matters is “offensive” and hence actionable as an invasion of privacy, courts must consider the extent to which the intrusion was under the circumstances, justified by the legitimate motive of gathering the news.
a. Intrusion upon seclusion
c. Putting plaintiff in false light
a. A disclosure to the public.
b. Of facts of and concerning the private life of the plaintiff.
c. Disclosure would be highly offensive to the reasonable person
i. See Shulman for offensiveness
d. Are not of legitimate concern or newsworthy
i. CA Newsworthy test
Sidis v. F.R. Publishing- Child prodigy. Certain public figures must sacrifice their privacy and expose at least part of their lives to public scrutiny as the price of the power they attain.
In this case, the Plaintiff was a very prominent public figure. Despite his effort to remain out of the public eye, the article in The New Yorker was written about him. However, in this case, the newsworthiness of the article is a defense to the Plaintiff’s claim of invasion of privacy.
i. Essence of the harm is dignitary and emotional. Claiming injury to their personal sensibilities.
ii. A disclosure to the public. Once you disclose to more than one person or “at large” it is public.
iii. Of facts concerning the private life of the plaintiff. What is private? If something takes place outside the walls of the private home, it is public. The rule on celebrities private life, if it is of interest to the public, it is perfectly public.
1. A public figure under privacy law has a broad definition of public figure. Anyone who the public could have some kind of conceivable interest.
2. Law of privacy also recognizes the involuntary public figure (Sipple, Haynes). Someone who is thrust into the spotlight.
iv. Disclosure would be highly offense to the reasonable person
1. Highly offensive- Does anything shock us? Haynes case- Posner suggested that very little is highly offensive. Would have to be intimate, takes place in the bedroom or bathroom.
v. The facts are not of legitimate concern to the public or “newsworthy”
1. What is a matter of public concern and who gets to decide? Is the public interested in it? Courts take a descriptive approach, not normative. If the media publishes it, the public must be interested in it.
2. CA Newsworthiness test:
a. Social value of the facts published;
b. The depth of the article’s intrusion into ostensibly private affairs;
c. The extent to which the individual voluntarily acceded to a position of public notoriety
3. A lot of these cases regard crimes they were convicted of, but were rehabilitated. (Briscoe). Court focused on the social value of rehabilitation. Briscoe was overturned, however.
4. No S.C. case addressing pdpf. However,
5. Smith v. Daily Mail, “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.
f. Involuntary public figure: Comment to Restatement Second 652D:
g. ‘There are …individuals who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest. They have, in other words, becomes 'news.’ … These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains and victims, and those who are closely associated with the
as been an invasion of his right whether or not his “name or likeness” is used.
Kennedy Dissent in Carson
Three policy considerations, why there is appropriation:
1. Vindicates the economic interest of celebrities
2. Fosters the production of intellectual and creative works
3. To prevent wrongful conduct
Zaccahani- Help appropriation because the performance was so short (cannonball).
Look for likeness
b. One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion if his privacy. This focuses on economic harm, lost profits, etc…
c. The protected domain in these cases is a person’s identity. What is someone’s identity? Johnny Carson Case.
d. There is a newsworthy aspect of this. Generally for an appropriated image to be newsworthy, it has to have a “real relationship” to a matter of public concern.
e. NY Civ. Rights Law Sec. 51
i. Any person whose portrait, picture, or voice is used for advertising purposes of trade without consent . . . may sure and recover damages for any injuries sustained by reason of such use.
1- A false –If of public concern, P has burden of proving falsity.
2- And defamatory
3- Statement of fact
5- With fault at least amounting to negligence
A communication is defamatory if it “tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with or dealing with him.”
A defamatory statement “exposes a person to hatred or contempt…injures him in his profession or trade, and causes him be shunned by his neighbors.”
A statement in the form of an opinion is actionable only if it implies defamatory facts as the basis for the opinion.
• Publication = communication to one other person than the person defamed
• Each communication of the same defamatory matter by the same defamer is a separate and distinct publication, for which there is a separate cause of action
• Except – single publication rule