One of the key concepts in chapter 14 “Law and Regulation” is invasion of privacy.
I think we’d all agree we’re living in an era where there seems hardly to be any privacy. Wherever we go, cameras catch us on video; people with cell phones snap our pictures (many times unbeknownst to us); and sometimes even our conversations are recorded.
Where is the line between an individual’s right to privacy and the public’s right to know?
It can be a blurry, murky line, but it does exist. That’s what much of this blog post is about—trying help you understand that everyone has a right to privacy, and that there are legal consequences—for the news media or anyone else—if someone violates that right.
First a couple of quick scenarios to get you thinking about right to privacy.
1. As a staff member of The Whitetopper, you want to photograph a couple of students embracing each other closely on a bench in front of one of the residence halls on campus.. Can you take their picture, get it published and be legally safe from invasion of privacy, without getting the couple’s permission?
2. You’re a freelance writer and photographer walking down the beach at Myrtle Beach, S.C. (Just so happens you have your camera with you, as you should have because, once a journalist, always a journalist!) You notice a young woman (about 25-30 years old) sunning herself on a blanket. She’s lying on her back. There’s a slight breeze. She seems to be napping. Suddenly a gust of wind blows the top of her bikini off. She remains asleep. You snap her picture, hurry back to your laptop at your motel room and write an article, accompanying the picture, which you sell to a magazine at the beach. Your article is about what people might be surprised to spot at the beach. The woman in the photo sues you for invasion of privacy. Does she have a good case?
To further help get you into a legal framework of thinking about right to privacy, here’s a delicate scenario you could encounter as a journalist:
A candidate is running for city council or for some other elected office in your local community. You as a reporter for the local community newspaper hear a rumor that she (the candidate) suffered a nervous breakdown 10 years ago. Upon your nosing around, the candidate’s opponent slips you a document that verifies it. Should you or should you not pursue the story, write it and have it published as an investigative news feature story in your newspaper ? If your story is published, do you think the candidate will have grounds to sue you? And if she does sue you, what would she allege or under what privacy law or tort would she sue?
Think about the possible answers to these scenarios as we proceed with our discussion today–about invasion of privacy, a key area of First Amendment law.
First of all, concerning invasion of privacy or any othe aspect of First Amendment law (libel, obscenity, copyright…) here are a few broad but very good pieces of advice:
1) always get it right–be accurate, truthful and fair to the best of your ability as a journalist;
2) know your legal rights; and
3) know others’ legal rights.
4) know what the relevant law is in your particular state. (Example: the law concerning invasion of privacy might be one way in Virginia and another way in Illinois or S.C.). Not sure what the law is? Get a copy of it and read!
And yes, it’s good for you as students and practitioners of journalism/mass communications, to be savvy about the applicable law, but, as many well repected journalists also caution, media professionals and others constantly have to practice good, common sense judgment; often there’s no one set answer to handling the many (and often murky, sticky) legal or issues that you might encounter.
Take the sometimes sticky, privacy issue of being honest with your sources. Barbara Ehrenreich wrote a book that has become a popular, controversial best seller. It’s called "Nickel and Dimed," and in it, Ehrenreich investigates menial low wage jobs in America.
Dr. Ehrenreich—who as the time she wrote this book was a freelance writer, a research scientist and social activist— actually worked in the low-paying jobs she writes about in her book. Some have wondered whether she should have worked in those menial jobs without identifying herself as a journalist or academic professional working on a book.
Some journalists would see no problem in what she did. Others, however, might assert that Ehrenreich deceived her sources and that her actions were unethical and even may have constituted an invasion of privacy. The book was favorable to the working class, but it’s not inconceivable that in our litigious (overly eager to file lawsuit society) one of those workers would consider suing Ehrenreich for invasion of privacy. Would the worker have a viable (winnable) privacy invasion lawsuit against Ehrenreich and/or the publisher of the book?
Okay, this seems like a good launching point into privacy and what, concerning privacy, journalists and others who work for the news media should be keenly aware of.
First of all, know that courts in the USA have ruled that every American has a right to a REASONABLE EXPECTATION OF PRIVACY.
Sounds pretty cut and dry, right?
It isn’t.
Privacy or the lack thereof can get plenty murky.
Here’s the crucial, ticklish, complex question: Where does one person’s right to privacy begin and/or end, and where does the writer’s (or journalist’s) right to report and publish begin and/or end?
Hard to know the answer to that question in many cases, since, again, privacy is a murky, still emerging area of the law–and not nearly as well defined an area of law as libel.
Here, however, are some good things to remember about privacy.
Privacy invasion has four torts (areas of the law). These torts are:
1. Intrusion
2. Embarrassing facts or information
3. False light
4. Appropriation
Let’s take a quick look at each privacy tort.
1. INTRUSION: Basically this means that everyone has a reasonable expectation of privacy. More specifically, if you as a journalist cross the line and INTRUDE UPON A PERSON’S PRIVACY, you can get into trouble legally. Be VERY, VERY CAREFUL OF taking a person’s picture and/or electronically recording/videoing them when they are in a place where they can reasonably expect to have their privacy protected. Examples of such places: their bedroom, their bathroom, other places inside their home that are shielded from public view; their office at their place of employment; a restroom, even if the restroom is located in public park; telephone or cell phone conversations they have with another party...; the swimming pool in their backyard, especially if that yard is surrounded/screened by a high wooden or otherwise opaque fence. ARE THEY IN ANY OF THESE ABOVE OR SIMILAR ZONE OF PERSONAL PRIVACY PLACES? DO NOT PHOTOGRAPH OR RECORD THEM OR WRITE ABOUT THEM WITHOUT THEIR PERMISSION!
2. EMBARRASSING FACTS OR INFORMATION: This means that you as a journalist can write provably or indisputably true stuff about a person and still face a lawsuit from that person. Truth in such a scenario is no defense. This is what you should remember. Are the facts or information NEWSWORTHY or are they in the PUBLIC’S INTEREST? Or are these same facts or this same information, even though it’s true, merely pandering to a person’s morbid or salacious curiosity? Put another way: Is what you are writing about the person truly in the public interest or NEWSWORTHY or is it just hurtful or malicious, juicy gossip?
Let’s go back to an earlier scenario in this blog post:
A candidate is running for city council or for some other elected office in your local community. You as a reporter for the local community newspaper hear a rumor that she (the candidate) suffered a nervous breakdown 10 years ago. Upon your nosing around, the candidate’s opponent slips you a document that verifies it. Should you or should you not pursue the story, write it and have it published as an investigative news feature story in your newspaper ? If your story is published, do you think the candidate will have grounds to sue you? And if she does sue you, what would she allege or under what privacy law or tort would she sue?
In my opinion, applying the tort of embarrassing facts or information to this scenario, the reporter had best ask herself some hard questions before writing about the candidate’s mental illness, which occurred a decade ago. Is this information really NEWSWORTHY in the present campaign? Or is printing it merely going to embarrass the candidate and potentially cost her the election? If it’s newsworthy, what makes it newsworthy? Has the candidate said something critical, possibly while campaigning, about her opponent’s mental fitness for office? Has the issue of mental fitness come up frequently in the campaign debates or ads? Can you, as a journalist, make a compelling case that the candidate’s mental illness ten years ago truly is relevant to the current campaign?
3. FALSE LIGHT: This is exactly what it says–portraying someone in a false light or somehow misrepresenting someone through you (the journalist’s) words or pictures. This can happen more easily than you may think.
Example: While living in Iowa years ago, I learned about an author who had written a book about street preachers. (Street preachers being evangelists with Bibles who go out onto the streets, usually of major cities, and try to convert bystanders or walkers to Christ.)
Well, as fate would have it this one particular author had conducted research and interviews (and taken photos for his book) on Bourbon Street in New Orleans. When the author’s book came out on the racks in religious book stores, there, on one page of the book, was a picture of a woman–we’ll call her Janie O. Smith, with others, listening to a street preacher on Bourbon Street. No one was named in the picture caption, but the caption read something along the lines of: "The Rev. Billy Ray Miller III, noted New Orleans street preacher, takes his message about Jesus to sinners and prostitutes on New Orleans’ Bourbon Street."
It so happened that one of Janie O. Smith’s close friends happened along one day in a religious book store and picked up the author’s book about street preachers. The friend, thumbing through the book, noticed a picture of Janie O. Smith, along with the caption suggesting that she was a sinner or prostitute.
You can imagine what then happened.
Janie O. Smith learned from her friend about her portrayal in the book about street preachers.
Janie O. Smith purchased the book.
When she saw her published picture and the accompanying caption, Ms. Smith was angry, hurt and embarrassed, to say the least,
She sued the publisher, book store and author for false light invasion of privacy, seeking millions of dollars in damages.
Did she have a case? What do you think?
4. APPROPRIATION: This means, in a nutshell, that you as a writer or practitioner of mass communication (journalist, PR professional, advertising copywriter…) are not allowed to appropriate (take or use for your own purposes) a person’s picture, likeness, signature, words, testimony or endorsement, WITHOUT THAT PERSON’S PERMISSION, if the appropriation is for your (the writer’s) commercial gain and/or if it could deprive the source of the signature, words, testimony...of commercial benefit.
Simplistic example: It would be appropriation, and therefore a violation of Tiger Woods’ privacy, if someone put his likeness or picture or words on a T-Shirt and sold the shirts to help boost membership in your golf course.
Aother example of appropriation: It would be appropriation, and therefore a violation of Opra Winfrey’s privacy, if you as a writer reprinted in whole or in part, without Ms. Winfrey’s permission, statements from Ms. Winfrey about the value of libraries, put them in an article you wrote about the benefits of reading books, and sold that article to a magazine or newspaper.
But also consider this: you take pictures of a bunch of runners, at the start of a marathon race, and one of your photos just so happens to focus on a runner who tripped and is grimacing and lying in pain on the pavement.
The photo clearly shows the runner wearing a Nike cap with the Nike swoosh symbol on it.
Can you publish this photo without Nike’s permission?
Yes, because the photo is part of a bonifide news event–the marathon race. And you as a journalist/photographer are not depriving Nike of any money by publishing the photo. Nor are you as a journalist gaining any special money (other than your normal compensation) for having the photo published.
Before we leave privacy, it’s good to mention a new aspect of privacy, still emerging, called "practical obscurity."
What’s the meaning of "practical obscurity"?
It has to do with the idea that as recently as about 20-25 years ago, when you wanted to research a person’s past, you as a journalist or researcher painstakingly combed through library books, scoured articles stored in dusty, moldy back issues of newspapers, perused, till your eyes almost went blind, old documents or microfilm of old documents. You might have also went to a lot of time and trouble to track down old, almost forgotten forever or misplaced forever files.
Laborious and time consuming to say the least!
Information was hard to find. Sometimes it could not be found, regardless of how hard you tried.
As a practical matter, the information was obscure.
Of course, a lot as changed today.
In 2016, with the Internet, nothing seems to be "practically obscure."
With the touch of a few fingers and with powerful search engines like Google, it takes only a few seconds to dredge up a person’s past.
Nothing, it seems, is hidden or private anymore. Everything, just about, is out there for the taking.
Make a mistake (such as breaking the law) when you were 18 years old and now you’re 30 and you want that youthful transgression to not become public? Good chance just about anyone with a computer and Internet connection can read all about your early sins.
And what about cameras on cell phones? Everyone seems to have a smart phone with a camera! Think about the consequences for personal privacy, or the lack thereof, for people living in our camera/YouTube cell phone society.
We’ve all read or heard about people taking pictures with their cell phones of pages of books at bookstores; of women’s underwear while they relax unawares reading or lounging; of students snapping pictures of their professors while they’re picking their noses and then putting those pictures on gossipy websites; of YouTubers capturing video, and then posting in on the Internet, of persons taking showers in public restrooms.
CONCLUSION:
Invasion of Privacy. We as journalists should learn as much about it as possible. We have to be smart. We have to know how far to go with our pens, cameras and recorders and when to pull back.
And we have to know that two wrongs don't make a right. Just because the whole world seems to have gone anti personal privacy, we still have to respect who we are capturing with our words or images.
Enough for now.
Think deeply about privacy.
(Oh by the way, concerning scenarios 1 and 2 at the start of this blog post: The reporter/journalist/writer is on safe ground in both scenario. No one in these situations has had their privacy invaded because the subjects of the photographs/media coverage have no reasonable expectation of privacy. They are in a public place where anyone could see them.)
Below is a short video clip of a few of the points I touched on in this blog post.
Larry Timbs
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