Privacy invasion

Bill,

For my Feature Writing class on Monday, April 21 (2 p.m.-3:15 p.m.), I have in our WebCT course "Calendar" that the topic of the day will be First Amendment law.

Here's a lecture I've put together for you (or for whoever wants to read or touch on it for my class today.)

Feel free to edit, condense, expand, whatever.

You might want to print out the story from The Charlotte Observer as a separate handout, and make copies, (to help spark class discussion).

Please tell the class that our class session on Wed., April 23, will focus on libel and copyright (other areas of First Amendment law potentially of great consequence for feature writers).

Here's the lecture; remind them to take notes; if they don't take notes, they don't retain or learn:

Lecture for my Feature Writing class–for Monday, April 21, 2008

By Larry Timbs

Read and interpreted (and expanded/clarified if necessary) by Bill Click

Today, class, we will be touching on First Amendment law–especially as that law impacts feature writers.

Everyone should take good notes today. Note the key points of what you are hearing. Who knows? Some of this (or application of it) might show up on your final examination!

So, why, in our course on feature writing, are we today (and probably at our next class session) focusing on First Amendment law–more specifically, libel, invasion of privacy and copyright?

First, this is pivotal material--not only for feature writers but for anyone serious about working in the mass media of communications. (This includes hard news reporters, editors and publishers, bloggers, electronic media rank and file professionals and executives, IMC professionals, broadcast professionals, advertising professionals, public relations professionals.)


Quick disclaimer before we go any further with our lecture today: We have a separate REQUIRED course, MCOM 410, in the Department of Mass Communication at Winthrop University in First Amendment law. And it’s my guess that maybe some of you today in our class have already had that law class. That said, First Amendment law should be a thread that runs through all our courses in the mass comm./IMC majors. We cannot be overly informed about this vital area, folks.

Our lecture today is not intended to replace the excellent portions of our AP Stylebook (a required book for Feature Writing) dealing with such topics as (and jot these down, students, as I read them out loud to you):

1. Libel

2. Kinds of damages and examples of each for libel

3. The U.S. Supreme Court case of New York Times vs. Sullivan

4. Standards for libel that must be proved by public officials/public figures


Important reminder: read the special sections on libel and privacy near the end of our style book; pay particular attention to what the style book says about the actual malice standard for public officials/public figures.)

Other key concepts (in the AP Stylebook section on First Amendment law) that you should familiarize yourself closely with are:

1. neutral reportage

2. invasion of privacy and the four privacy torts and descriptions/examples of each privacy invasion tort

3. copyright

REPEAT: STUDY CLOSELY THE SECTION(S) IN THE AP STYLEBOOK ON FIRST AMENDMENT LAW–ESPECIALLY THE SECTIONS ON LIBEL, PRIVACY AND COPYRIGHT.

QUESTIONS ABOUT THESE CONCEPTS, AS PRESENTED TO YOU IN THE STYLEBOOK AND IN TODAY’S LECTURE, MIGHT WELL APPEAR ON OUR FINAL EXAMINATION.

Okay, back to today’s lecture.

To help get you into a legal framework of thinking, here’s a ticklish scenario you could encounter as a feature writer:

A candidate is running for city council or for some other elected office in your local community. You as a feature writer 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 law or tort would she sue?

Think about the possible answers to these questions as we proceed with our lecture today–and continue discussing First Amendment law on Wednesday.)


Concerning First Amendment law for feature writers, 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.


By now, you surely know that there is much to learn if you want to become a successful, effective professional or freelance feature writer. In our course, you’ve confronted a lot of practical advice (from my lectures, from examples, and from the textbook) on the process of feature writing--how to generate story ideas, how to structure and shape stories, how to interview sources, how to conduct research.

If all this isn’t enough to deal with, we as feature writers are faced with a number of legal and issues that can impact dramatically on our careers. The textbook and style book do a good job of introducing you to some major First Amendment legal areas or issues.

Yes, it’s good for you as students and practitioners of feature writing, to be savvy about these areas, but, as many well repected journalists also caution, feature writers 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 feature writers encounter.

Take the sometimes sticky, privacy issue of being honest with your sources. Recently (and we may have touched on this early this semester) 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 is a freelance writer and is 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? Please ponder the answers to these questions as we focus now on a key area of First Amendment law–invasion of privacy.

While we’re on the subject of a journalist being honest and upfront with her sources, consider the following story which ran a few years ago in The Charlotte Observer:


Dotson's attorney questions interview

Says reporter failed to identify herself as such

Associated Press


DALLAS - The attorney for Carlton Dotson, the former Baylor basketball player accused of murder, said in a written statement Thursday that the newspaper intern who got a jailhouse interview with Dotson did not tell him she was a journalist.

Shani George, the reporter, met Dotson on Wednesday at a Maryland detention center. She reported for the Dallas Morning News that Dotson suggested he acted in self-defense in a deadly confrontation with former teammate Patrick Dennehy.

"It is our understanding that she represented herself as a Christian who was there to let Mr. Dotson know that she was `praying' for him," said the statement by attorney Grady Irvin.

The newspaper defended its story, saying George gave the desk officer a copy of her press credentials and an unsealed note to Dotson identifying herself as working for the paper and requesting an interview. The newspaper's statement said Dotson asked George if she was a Christian, and she said she was.

Irvin's statement does not dispute the accuracy of the story, but says George took no notes and identified herself at the end of the meeting as a "friend of someone who worked for the newspaper."

George, an intern in Washington for the Morning News' parent company, Belo Corp., told CNN she identified herself to Dotson as a reporter. She acknowledged she took no notes.

Warden Ron Howell told The Associated Press that George did not tell guards before the interview she was a journalist, but she was not required to do so.

Visitors to the jail are not allowed to carry recording devices or cameras, though they are allowed to carry pencil and paper, Howell said.

The jail doesn't record conversations between inmates and visitors, either.

On Thursday, two local attorneys representing Dotson set a list of approved visitors for him.

END OF STORY.

DISCUSSION HERE ON WHETHER THE REPORTER WHO INTERVIWED THE PRISONER VIOLATED THE PRISONER’S PRIVACY.


Okay, this seems like a good launching point into privacy and what, concerning privacy, feature writers 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 feature 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 tort, keeping in mind that feature writers should know what they can and cannot do, in terms of a person’s privacy.

1. INTRUSION: Basically this means that everyone has a reasonable expectation of privacy. More specifically, you as a journalist cross the line and INTRUDE UPON A PERSON’S PRIVACY (and can get into trouble legally) by 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 a with another party...; the swimming pool in their backyard, especially if that yard is surrounded/screened by a high wooden or otherwise opaque fence.

2. EMBARRASSING FACTS OR INFORMATION: This means that you as a feature writer 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 interesting or hurtful gossip?



Let’s go back to our earlier scenario:



A candidate is running for city council or for some other elected office in your local community. You as a feature writer 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 law or tort would she sue?

In my opinion, applying the tort of embarrassing facts or information to this scenario, the feature writer 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 feature writer, 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 feature writer’s) words or pictures. This can happen more easily than you may think.

Example: While living in Iowa years ago, I learned about a religious book 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 his 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 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, 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 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 Smith, along with the caption suggesting that she was a sinner or prostitute.

You can imagine what then happened.

Janie Smith learned from her friend about her portrayal in the book about street preachers.

Janie Smith purchased the book.

Angry, hurt and embarrassed, to say the least, was Janie Smith when she saw her published picture and the accompanying caption.

Janie Smith 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?

DISCUSSION AT THIS POINT IN THE CLASS. I HAVE LONG SINCE FORGOTTEN HOW THE CASE TURNED OUT.

4. APPROPRIATION: This means, in a nutshell, that you as a feature writer are not allowed to appropriate (take or use for your own purposes as a journalist) 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 Larry Timbs’ privacy, if you as a feature writer reprinted in whole or in part, without Larry Timbs’ permission, e-mails from Larry Timbs about Timbs’ heart condition, put them in an article you wrote about heart disease, 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 15 years ago, when you wanted to research a person’s past, you as a journalist or researcher painstakingly looked through library books, scoured articles stored in dusty, moldy back issues of newspapers, perused, till your eyes almost went blind, old documents, 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 2008, 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 Net connection can read all about your early sins.

And we’ve not even began talking today about cameras on cell phones. 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 Web sites like rateyourprofessors.com; of YouTubers capturing video, and then posting in on the Internet, of persons taking showers in public restrooms.

CONCLUSION:

Invasion of Privacy. We as feature writers 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.

Sincerely,

Larry Timbs

Mountain City, Tenn.

April 20, 2008