Privacy

"the right to privacy" was the title of a Harvard Law Review article in 1890. 

Privacy Act forbids the disclosure of specific material held by the federal govt.

Four Areas of Privacy Law:

1. appropriation of name or likeness

2. intrusion upon an individual's solitude

3. publication of private information of an individual

4. publishing material in false light

USA PATRIOT ACT

passed after 9/11, gives feds sweeping powers to monitor, search and seize for the purpose of countering terrorism. 

in 2011 Obama signed a four-year extension of three key provisions

1. roving wiretaps

2. searches of library records

3. surviellence of lone wolves

Appropriation

taking a person's name, picture, photograph or likeness and using it for commercial gain without permission

Intrusion

upon solitude and into the private life of a person

Publication of embarrasing facts

publishing truthful, private information. (gossip, substance of private conversations, details of a private tragedy or illness)

False Light

publishing information about a person that puts them in a false light

Right to Publicity

attempt to renumerate individuals for the economic harm suffered when their name or picture is used for advertising or trade purposes. Only someone who's name has commercial value can allege this. 

Likeness

any representation that suggests to readers or viewers that the plaintiff is pictured

Reporter's liability in privacy actions

news media are exempt from liability for publishing news

Booth rule

the use of a person's name or likeness in an ad for a magazine/newspaper/tv program is not regarded as an appropriation if they are willing to be part of the content.

Consent

must come from authority and be specific to the conten and medium. 

written consent

oral consent

implied consent

-may not be valid in the distant future or if photo is                  altered

-minors 

-mentally ill 

-incarcerated people

-friends

Trespass

unlawful entry on a person's land or property

Advertising and Trade Purposes

commercial uses

1. person's name or photograph in an ad

2. display of a person's photo in a photographer's shop window

3. a testimonial falsely suggesting that an individual eats the cereal or drives the car in question

4. using a name or likeness in an ad on a website

5. using a name or likeness in a commercial entertainment vehicle 

Custom and Usage***

Technological Intrusion

using technology that enhances viewing or listening is legal if the device does not effectively let the journalist hear or see what normally could not be observed. Using sensitive listning devices, mini video cameras, "bugs" and other eavesdropping devices telephoto lenses.

Publication in privacy actions

this tort of privacy occurs with the "publicaiton of embarrassing private information that is highly offensive to a reasonable person and is not a matter of legitimate public concern"

-publicity to the world at large

-must outrage the community's notions of decency

-the plaintiff should not have become part of public event or controversy

Legitimate Public Concern

a court can rule that the legitimate public interest or concern can outweigh the disclosure of any embarrasing facts or offensiveness. 

Fictionalization

embellishment or addition of information to an otherwise factual presentation

Distortion

not with fictions, but by omissions, slanting, photocropping or the use of names and photos out of context

Implied Consent

when private information is obtained from someone who doesnt understand that it is likely to be published

Intentional infliction of emotional distress

allows recovery of damages for severe emotional harm or for deliberate or reckless conduct that is deemed outrageous and extreme. Plaintiff must prove actual malice and that the expression is not a parody

Buckley Amendment of 1974

requires educational institutions recieving federal money to keep certain student records private. FERPA

Privacy Act of 1974

creates a "Code of Fair Information Practices" to regulate govt agencies' misuse of the personal data in their possession and provide access to individuals to records about themselves

Driver's Lecense Protection Act of 1994

inhibits stalkers who might harm an individual after linking name with an address

Computer Privacy Laws of 1986 and 1988

1986- makes it unlawful to access or diclose certain records in computer form

1988- limits the ability of the govt to routinely cross-reference info in various databases

Laws of recording phone convos

12 states NOT texas that require all parties to know that phnoe convo is being recorded. 38 states that don't need parties to know that convo is being recorded

-most states including Texas require one party's consent (police) to know that convo is being recorded in a criminal investigation

Disorderly Conduct

reporters must obey lawful orders from police and fire officials

Harrassment

reporters may not use ambush interviews, shotgun mics, bugs, etc. may not misrepresent

newspapers may not indulge in fraud by giving false identities to gain access

Misrepresentation

breaking promises to subjects of stories

Father of FOI***

Anders Chydenius

swedish politician, classical liberal

Agency

any executive department, military department, govt controlled corporation, regulatory agency

Record

any paper document, email, computeer generated material, films, tapes

Agency Record

if an agency has created a document and possesses it

maybe if an agency possesses a document but did not create it

NOT an agency record if the agency creates the document but doesn't possess control over it

Media "ride-alongs"

media can ride along with police but cannot enter private property

FOIA Exemptions

1. national security matters

2. housekeeping materials

3. material exempted by the statute

4. trade secrets

5. working papers/lawyer-client privilege

6. personal privacy files

7. law enforcement records

8. financial institution materials

9. geological data

Judith Miller

served 85 days in jail for refusing to name to a grand jury the source who leaked to her the identity of CIA agent Valerie Plame. Freed after she claimed to have got a waiver from the source, Lewis Libby, Cheney's chief of staff.

Myron Farber

Served 40 days in jail when he refused to reveal sources in a criminal trial. Farber had written a series of articles concerning some mysterious deaths in an NJ hospital. As a result of his investigation, NJ authorities charged a doctor with murder.

Sunshine Act

federal open meetings law.

Must give notice of meetings one week in advance and hold them in a public place. Must document what occurs, must make contacts with members of regulated industries. 

Three Part test from Branzburg

1. relevance test: govt must show that there is probable cause to believe that the newsman has information which is clearly relevant to a specific probably violation fo the law. 

2. alternative means test: govt must demonstrate that the information sought cannot be obtained by alternative means less destructive of 1st amendment rights

3. compelling interest test: govt must demonstrate a compelling interest in info

Right to access prisons

reorters have no constitutional access to prisons beyond that of the general public

Public perception of media

approval of media is at an all time low

lack of sympathy for reporters, invasions of privacy, aggressive reporting 

Shield Law in Texas

the Free Flow of Information Act grants a qualified privilege to journalists so they can protect their sources and not have to testify or produce tapes or notes in court

Police powers to search newsrooms/journalists

journalists treated like regular people

Privacy Protection Act of 1980 prohibited seaches of journalists for documentary materials exept when

1. if death or injury to persons may be prevented

2. if needed documents are about to be destroyed

3. when a subpoena has been ineffective in securing appropriate docs

4. if the journalist is believed to be a party in the crime

Conflict b/t free press and a fair trial

Two types of gag orders

1. restraining the press- can't publish anything about the trial 

2. restraining trial participants, witnesses

Five conditions to be met by trial jugde to issue a gag order

1. evidence order is essential to fair trial

2. less drastic means should be used first

    a. change of location

    b. delaying trial

    c. careful selection of jury

    d. clear instructions to jury

3. secrecy orders should be issued, contraints on sources of information 

4. press may not be constrained from reporting court news

5. injunctions may not be too vague or broad

Use of TV cameras in court

most states permit the use 

federal govt prohibits