Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 6: Protecting Privacy
We have reorganized this chapter in order to help students better understand the different sources
for privacy protection, especially since the word “privacy” has a broad meaning today. The
chapter now opens with the development of privacy law, followed by the various privacy torts.
The chapter ends with a new section on privacy and data protection as well as an updated and
expanded look at how the Supreme Court has handled recent electronic privacy cases.
Generally, lawsuits against the media for invading privacy are not based on constitutions or
statutes. Rather, these lawsuits usually are tort actions. Privacy torts grew slowly. Courts and
some state legislatures recognized appropriation as a tort early in the 20th century. But intrusion
and private facts developed much later. Courts in several states still do not accept the false light
tort.
Appropriation is the use of a person’s name, picture, likeness, voice, or identity for commercial
or trade purposes without consent. It can be divided into two torts – commercialization and right
of publicity. Commercialization applies to famous and ordinary people alike. Courts recently
have recognized a right of publicity that protects celebrities from being exploited for commercial
or trade reasons. A recent trend is the explosive growth in right of publicity cases. This includes
the high-profile sports video game cases and whether student athletes have publicity rights. It’s
an area of great interest to students and could be an area to focus your classroom discussion.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Intrusion is a broad term. At first, intrusion was nearly synonymous with trespass, that is,
physical invasion of another’s land or house. Then it came to include technological forms of
invasion of privacy. Essentially, the intrusion tort has become a way to sue the media for
newsgathering techniques. For this reason, this textbook discusses such newsgathering methods
as surreptitious taping in Chapter 8, Newsgathering. One recent area for discussion about
intrusion is the use of drones for newsgathering. That is discussed briefly in this chapter as well
as Chapter 8.
The FTC report suggested that companies build in consumer privacy protections at all stages of
product development. Those protections should include consumer data security, limited data
collection and retention, and procedures to promote data accuracy. The report also recommended
giving consumers the option to control how they share their information and the ability to choose
a “Do Not Track” mechanism, and the FTC encouraged companies to strive toward transparency
in how they collect and use consumer information.
The breadth of the concept of privacy moves beyond what information is to be revealed or kept
secret, but in the way information is protected. Students should understand that the word
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
“privacy” is not used in the U.S. Constitution or in most state constitutions. The U.S. Supreme
Court has read privacy protection into the U.S. Constitution, but only regarding sexual and
reproductive matters. The U.S. Congress has adopted privacy laws, but traditionally most of
Outline
I. Privacy Law’s Development
II. False Light
a. Plaintiff’s Case
i. Publication
ii. Identification
iii. Falsity
iv. Highly Offensive
v. Fault
b. Defenses
III. Appropriation
a. Commercialization and Right of Publicity
b. Plaintiff’s Case
i. Name or Likeness
ii. Voice
iii. Identity
c. Defenses
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
ii. Public Domain
iii. First Amendment
iv. Ads for the Media
v. Consent
vi. Incidental Use
IV. Intrusion
a. Methods of Intruding
b. Intrusion on Private Property
c. Defenses
i. Consent
ii. False Pretenses
iii. Newsworthiness
V. Private Facts
a. Intimate Facts
b. Legitimate Public Concern
c. Publicity
d. First Amendment Defense
i. Public Significance
ii. Lawfully Obtained
iii. Public Record
VI. Privacy and Data Protection
VII. Electronic Privacy and the Supreme Court