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MC 401 Test 3 - Dianne Bragg
Chapters 7 & 8 in “Mass Media Law”
Module 6
Module 6 Privacy: Appropriation and Intrusion, Publication of Private
Information, and False Light
There are at least 3 basic conceptions of privacy:
1) Privacy of autonomy: in this light, privacy means private and personal decision making
by an autonomous individual, free from government interference and intrusion
- An example of this would be the right of a woman to choose to have an abortion
found in Roe v. Wade ruling
2) Privacy of space: people possess a geographical or physical zone of privacy into which
others may not intrude or trespass
3) Privacy of information: there are some facts and data about oneself that should not be
revealed either to or by others or that you should be able to control what other people do
with information about you
➢What all 3 of these conceptions of privacy have in common is the notion of control
4 primary sources of privacy rights:
1) Constitutional law: "Although neither the U.S. Constitution nor the amendments to it
specifically use the word “privacy,” the U.S. Supreme Court has recognized an
unenumerated or implied federal constitutional right to privacy residing in multiple
amendments."
2) Statutory law: "Many statutes at both the federal and state levels protect privacy
interests. For instance, the federal Family Educational Rights and Privacy Act (FERPA)
limits public access to student educational records"
3) Common law (what this chapter & module focuses on): "These common-law privacy
theories provide remedies to individuals for certain invasions of their privacy interests."
- Legal theories of recovery: (1) appropriation/right of publicity, (2) intrusion into
seclusion, (3) publication of private information and (4) false light
4) Administrative law: "Increasingly, the Federal Trade Commission (FTC) finds itself
playing a front-and-center role as the nation’s chief privacy policy maker and enforcer."
→ "While privacy as a concept is enshrined in portions of our Bill of Rights that long predate
this era, the development of big city daily newspapers and innovations in photography gave rise
to what would become the privacy torts outlined in this chapter."
→ All but 3 states today recognize some kind of legal right to privacy (North Dakota, Vermont,
Wyoming)
→ The law of privacy is young, only 128 years old if you start with the Brandeis and Warren
proposal
American Privacy Rights History
●Pope v. Curl (1741)
○English Courts established Alexander Pope’s right to the words he had written
○Edmund Curl owned the “property of the paper,” but had no right to publish the
letters
●American’s privacy rights developed over concern with fundamental rights of life, liberty
and property.
○The rights of property and trespass are inextricably bound to the history of right to
privacy
Privacy in Colonial New England by David Flaherty
●Flaherty wrote that privacy was protected indirectly through laws in these areas:
1) Laws against trespass
2) Limits on government search and seizures
3) Defamation (you have a right to your personal, private reputation)
4) Privileged communications between husbands and wives
●A lot of interpretation for privacy cases come from the 4th Amendment -- the idea
that you have the right to your own personal space
John Stuart Mill: one of the first to articulate during that time that you only have to answer to
society for conduct that pertains to others, not for yourself.
●A person must answer to society only for conduct that concerns others
●“In the part which merely concerns himself, his independence is, of right, absolute.”
“The Right to Privacy” by Samuel Warren & Louis Brandeis
Harvard Law Review (1890-1891)
●1877 Harvard Law School graduates who argued for a common-law right to be let alone
○People do have this right to privacy
●American courts were slow to agree
●Warren and Brandeis said they were offended by the gossip in the press and believed they
overstepped in every direction.
●“The two lawyers proposed that the courts recognize the legal right of privacy; that is,
citizens should be able to go to court to stop such unwarranted intrusions and also secure
money damages for the hardship they suffered from such prying and from publication of
private material about them."
Roberson v. Rochester Folding Box Co. (1902)
●Young woman’s picture was put on a box of flour and the woman did not give permission
for her picture to be used. Her and her family sued the box company claiming they had
violated her privacy.
○The court didn’t recognize this and she lost her case, and then there was public
outcry in 1903.
●Issue: Did plaintiff have a cause of action against defendants for invasion of her right of
privacy? -- NO
●Ruling: Court refused to recognize legal recourse for “intangible mental harm” because
“the so-called ‘right of privacy’ had not yet found an abiding place in our
jurisprudence…”
●The public outcry prompted the New York legislature to pass the country’s first
statutory privacy law
(a state law) in 1903
○It required written consent to use a living person’s name, portrait or picture for
advertising purposes
●https://www.lexisnexis.com/community/casebrief/p/casebrief-roberson-v-rochester-foldin
g-box-co
☆This case served as the foundation for right to privacy
The invasion of privacy tort has developed differently from the defamation tort.
●Libel laws: protect from false
statements that tend to harm a person
●Privacy laws: protect a person from the publication of statement that, even if true, are
none of the public’s business
4 Areas of Privacy Law (legal theories of recovery)
1) Appropriation of one’s name or likeness for trade purposes
- It is illegal to use an individual’s name or likeness for commercial or trade
purposes without consent
- Oldest of the 4 privacy torts
2) Intrusion upon an individual’s solitude or seclusion (an area of the law growing
rapidly today)
- It is illegal to intrude, physically or otherwise, upon the solitude, seclusion or
private affairs of an individual if a reasonable person would find the manner of
the intrusion to be highly offensive.
- Cameras with telephoto lenses, hidden microphones, snooping through records,
eavesdropping etc.
- Not every intrusion is trespass and vice versa
- This differs from the other 3 torts in the fact that these types of cases focus
exclusively on how information is assembled. The other 3 torts focus exclusively
on the publication of the material.
3) Public disclosure of private facts about an individual
