Privacy
the right of a person to be free from intrusion into or publicity concerning matters of a personal nature
With an article by Warren and Brandeis in 1890
When did privacy law begin?
We should have a right to privacy, right to be let alone
What did the Warren and Brandeis article say?
It was a response to technological developments and yellow journalism
Why was the Warren and Brandeis article written?
Common law rulings and some state laws
What came about because of the Warren and Brandeis article?
False light, appropriation, intrusion upon seclusion, publication of private facts
What did William Prosser's 1960 article categorize privacy as?
Rights you have while you are alive (like libel)
What is a personal right in most privacy actions?
Constitutional privacy and data privacy
What are two types of privacy?
A right to privacy given by the Constitution
What is Constitutional privacy?
Women have a right to their bodies (Roe v Wade)
What is an example of Constitutional privacy?
Social media locations
What is an example of data privacy?
Both are personal law, publication must occur with either tort, identification is necessary, plaintiff suffered harm, First Amendment provides some protection for the media, statute of limitations affects both
How is privacy similar to libel?
Privacy applies to many different torts, there are even more variations from state to state, publication needs to be widespread (not just a third party), damage is emotional rather than reputational, republication of disclosed information does not constit
How is privacy different from libel?
There are a number of privacy legal concerns that are important but not directly connected to communication law
What do we need to know about privacy law?
False light
very similar to libel, except that the information need not be explicitly false, and it need not damage someone's reputation, only bring extreme emotional suffering.
The Desperate Hours Story
What is the most famous false light case?
Life Magazine did a story about the play and took the actors to the house to act out and take photos. Mr. Hill then sued for False Light as the play never mentioned his family but taking the actors to the actual house implies it
What happened in the Desperate Hours Case?
Time, Inc. v Hill (1967)
What was the Desperate Hours trial name?
Publication was widespread, identification, falsity, that it was highly offensive to the reasonable person, and fault
What must the plaintiff prove in a false light case?
Malice has to be the level of fault for all plaintiffs
What did the Supreme Court establish about fault in a false light case?
Appropriation
unauthorized commercial use of a person's name or likeness, the oldest tort, based on concept of peace of mind, usually separated into two torts
Commercialization
when anyone's privacy is invaded by using them for advertising (personal law)
Right of publicity
when someone's identify has commercial value and it is taken without permission (property law)
Someone has to be identified, the use was commercial, and was there consent
What are elements of appropriation?
Woody Allen v American Apparel
What is an example of appropriation?
Consent
What is a main defense for appropriation?
Explicit consent
given through signed consent forms
Implicit consent
the result of context or an action taken by the subject (like attending a public commercial event)
Exceeding consent
occurs when the use goes beyond the consent given
If a person or situation is newsworthy the media can report the story
How is news a defense of appropriation?
Satire and parody are considered noncommercial
How are most criticisms and comments exempt from appropriation?
Appropriation defense in art
one of the most important noncommercial uses is in an artistic rendering of some kind
Dominant Use Test
courts have to decide if the use is primarily artistic or primarily commercial
Artistic Relevance Test
courts consider whether the use is really relevant to the artistic point being made
Transformative Test
courts determine whether the artist actually transformed the original in some way
Booth Rule
News and information media may use images and clips from stories that have run (or will run) to promote themselves. Rule does not apply to other types of businesses
Intrusion
also known as intrusion upon seclusion, similar to trespass, based on whether or not the person had a reasonable expectation of spatial privacy, relates to the collection of information (not what is done with it)
Plain View
an intrusion consideration that says in a public place there is normally no expectation of privacy
Publication of private facts
also known as disclosure, what most people think of when they think of privacy violations by the media
Publication, previously private intimate information, highly embarrassing to the reasonable person, not of public concern
What are elements of a publication of private facts case?
Material was not previously private
What is a defense for publication of private facts cases?
Identification of rape victims
What is one exception in a disclosure case?
The Freedom of Information Act (1966)
What does FOIA stand for?
A federal statute that opens records of policy making executive agencies, all records are presumptively open unless specifically exempted
What does FOIA say?
National security, trade secrets, papers related to personal privacy, financial records, housekeeping records, working papers, law enforcement, geological data
What are considered exemptions under FOIA?
The balance of the court's desire to obtain information from reports with the reporter's desire to keep it private
What is the idea of Journalistic Privilege?
Promissory Estoppel
an unwritten contract where reporters can get in trouble for promises they make if they are not kept
Bransburg v Hayes (1972)
What Supreme Court case dealt with Journalistic Privilege?
Shield Laws
a result of Supreme Court Justice Stewart's dissenting opinion that stated qualified privilege is granted unless the reporter holds relevant information, this information cannot be otherwise obtained, state demonstrates a compelling interest
Subpoena
a summons to appear in court
Motion to quash
attempt to nullify a subpoena
The chilling effect
What is a legal justification for journalistic privilege?
Voir Dire
examine potential jurors to determine if they are fit to serve. Challenges may be for "cause" or "peremptory
Change of venue
defendant must waive right to trial where the crime was committed
Change of veniremen
bring jurors from somewhere else to trial
Continuance
defendant waives right to a speedy trial
Admonition to jury
warnings given to the jury before/throughout the trial
Sequestration of jury
expensive and demanding of jurors (isolate jurors from the outside world until trial is finished)
Nebraska v Stuart (1976)
case that provided a 3-part test for restrictive order
There must be pervasive and intense publicity about the case, no alternative means will be effective, some evidence must be presented that the order is likely to be effective
What are the 3 parts to the test for restrictive orders?
Open
Are most legal proceedings open or closed to the public?
Press-Enterprise case (1986)
What case determined the test for closed proceedings?
Party seeking closure must advance an overriding interest, evidence of substantial probability of this interest being harmed if proceeding is open, reasonable alternatives must be considered, closure must be narrowly tailored, evidence of the above must b
What are the five things that must be considered when closing a proceeding?
Bench-Bar-Press Guidelines
What is the guide to reporting court news?
Broadcast and newer forms of media utilize the electromagnetic spectrum which is a limited amount of space and must therefore be regulated
Why is broadcast not treated the same way as other forms of speech?
The Titanic disaster led to the Radio Act of 1912 which required oceangoing ships to have radio operators on duty around the clock
How did the Titanic change how radios were used?
1920s
When was the rise of commercial radio?
It stated where and how you can broadcast
What did the Radio Act of 1927 say?
Communications Act of 1934
What law created the FCC (Federal Communications Commission)?
Ajit Pai
Who is the current chair of the FCC?
Make rules and regulations for broadcast industry and has authority over anything that makes use of the broadcast spectrum
What does the FCC do?
No, they hold licenses for them
Do stations own frequencies?
They are auctioned
What happens to unused licenses or frequencies?
How many stations one entity can own (particularly in a single market), they have to be an American owner or majority American owned, have to present evidence of good character and ability to run the station
What do the ownership rules of licenses say?
8 year terms and then must renew
How long do you hold a license?
Regulation
What was the philosophy of the FCC up to the 1980s?
Competiton
What is the philosophy of the FCC since the 1980s?
Public interest, convenience, necessity
What does PICON stand for?
Spectrum scarciy and the mass effect of the mass media
What led to the creation of PICON?
Political programming and children's programming
What kind of content does the FCC regulate?
There has to be equal opportunity for candidates
Why does the FCC control political programming?
Supporters of political candidates have the same equal opportunity rule as the candidates
What is the Zapple Rule?
Children's Television Act of 1990
What led to the FCC controlling children's TV?
Some programming for children must be pro-social, commercials are limited to 12 minutes per hour on weekdays and 10.5 minutes on weekends, characters in programs not allowed to appear in commercials during their program
What did the Children's Television Act entail?
Hoaxes, public broadcasting, obscenity, violence
What are other areas of content controlled by the FCC?
Supreme Court affirmed that they do
What ended the debate about whether the FCC has authority over new technologies?
Broadcasters feared the competition from cable and wanted oversight
What led to the FCC oversight of cable?
MVPD (multichannel video programming distributors)
What is the legal designation for cable?
Retransmission consent agreements (finance deal with broadcasters) and Must Carry Rule (have to carry local content)
What are the two rules cable stations must abide by?
Internet is more like print and therefore has first amendment protection
Does the internet have First Amendment status?
Telecommunications Act of 1996
What said that the internet was more like print than broadcast?
Businesses who carry stuff and have the same terms for everyone
What are common carriers?
Yes
Are telecommunications providers common carriers?
No
Are information service providers common carriers?
Online Video Distributors (OVDs)
What is the legal designation for platforms like YouTube and Neflix?
Companies can compete in all three categories (cable, telephone, utilities) instead of just one
What did the Communications Act of 1996 do for competition?
ISPs need to treat all web traffic and content providers equally
What does net neutrality mean?
Keeps the internet equal and avoids favoritism to big companies who can pay more than smaller rivals
What is a pro of net neutrality?
Different types of content make different technical demands, fees must be flexible to account for this
What is a con of net neutrality?
Defined ISPs as common carriers and enforced net neutrality
What did the FCC do under Obama?
Reversed the 2015 decision and established RIFO (Restoring Internet Freedom Order)
What did Ajit Pai do under Trump?
States can make laws about net neutrality
What did a court ruling about net neutrality say?