Invasion of privacy in United States is divided into three big categories; (1) Publicly disclosing private facts; (2) Depicting a person in a false light; and (3) commercial exploitation of a person’s name or likeness. It is not too difficult to see that the law in United States highly favors the media through its implementation of several protections.
The first category is “public disclosure of private facts.” This involuntary loss of privacy tort requires that the media publicly disclose a private fact and the disclosure is highly offensive to a person of reasonable sensibilities and of no legitimate public concern.
The major protection for the media lies in the “public concern” requirement. Courts have a wide discretion to broadly construe what constitutes public concern, which allows them to favor the media. For example, in Haynes v. Alfred, 8 F.3d 1222 (1993), Alfred published a book that talks about the revelation of previous misconduct by Haynes. The court decided that the readers of a book about the black migration to the North have a legitimate interest in the aspects of Haynes’ conduct that the book reveals. The court broadly construed the issue as “is this story of the book important?” rather than “was it necessary to reveal Haynes’ real name?”
The second category is “false light,” which is a claim based on falsehoods that place the plaintiff in a false light and embarrassed him but did not harm his reputation, such as “X has cancer” or “Z is poor.” According to Gannett v. Anderson, 947 So. 2d 1 (2006), false light claim requires (a) the false light in which the other person was placed to be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity (actual malice standard) of the publicized matter and the false light in which the other person would be placed.
“Actual malice standard” provides strong protection for the media in false light cases. The standard’s substantive issue is to find out “what was in the journalist’s mind,” rather than whether there was responsible journalism. Purposeful avoidance of the truth, false statements made with the high degree of awareness of their probable falsity, or evidence that the reporter in fact entertained serious doubts as to the truth of his publication is necessary to prove actual malice. Plaintiffs have the burden of proving actual malice and these are very hard to prove since they are mostly circumstantial evidence. Moreover, plaintiffs must prove actual malice with convincing clarity (not mere preponderance), which tilts the scales in favor of the media.
The third category is usually called “misappropriation.” It is a claim that allows people to control the exploitation of their names, likenesses, and fame and any pecuniary value attached to them. Different from the first two categories, misappropriation does not involve invasion of something secret or false, but rather provides remedies for unauthorized use of a person’s name and likeness. This is the only category in privacy law that New York recognizes.
The claim is recognized only when the likeness is used in a commercial exploitation or trade, such as unauthorized use of a person’s likeness in an advertisement or endorsement of a product or service. However, even if the likeness is used in a commercial setting, if the content is newsworthy then there will be no remedy, which means misappropriation will only apply to purely commercial speech or at least to speech that does not contribute significantly to a matter of public interest.
Again, in Messenger v. Gruner, 94 N.Y.2d 436 (2000), the court explicitly stated that “newsworthiness” is to be broadly construed including descriptions of actual events, articles concerning political happenings, social trends or any subject of public interest. The plaintiff in that case lost even though the use of her likeness created a false impression about her because the likeness was used to illustrate a newsworthy article. The court determined that the article was newsworthy since it was informative and educational regarding teenage sex, alcohol abuse, and pregnancy.
These strong protections and favoritism of the media in the privacy world are to protect the media from having chilling effect (discouraging media from public speech of public concerns because of the fear of liability). However, is this real? For a long time, protecting the media from chilling effect was considered as a valid argument without a doubt. Courts generally did not even ask for any statistics or evidence to prove whether there was in fact a chilling effect. In some cases, such as Branzburg v. Hayse, 408 U.S. 665 (1972) and U.S v. Sterling, 724 F.3d 482 (2013), however, the courts rejected the chilling effect argument by saying that the First Amendment protection for freedom of the press was first asserted in 1958, and before 1958, the press has flourished without any constitutional protection.
Not only the validity of the chilling effect argument, there is also a serious problem with the privacy law in United States. Where is privacy for individual citizen? Is free flow of information so important that it is worth ruining an individual’s life? For example, when a reporter sneaks into a rehabilitation facility and publishes photos of a celebrity and a random person together, should that random person’s privacy be compromised at all? Is publishing her photo a public concern or does it bear any relationship to the news when the news was all about the celebrity?
I believe the answer to these questions is no. Why should an individual citizen bear the cost and not be allowed to recover at the expense of advancing the freedom of the press when he is already suffering from the violation of his privacy?
To mitigate the problem, the courts should start to construe the main issue of what constitutes public concern narrowly. Series of cases including Fla. Star v. B.J.F., 491 U.S. 524 (1989), and Haynes would have come out differently had the courts defined the issue more narrowly. The issue should be more strictly interpreted especially when privacy of the victim of the crime is at stake, such as Fla. Star where the court concluded that the name of the victim would never be a public concern. Rape is a public concern, but that doesn’t mean the victims’ names are also a public concern.
By narrowly construing public concern and newsworthiness, courts will be able to find the balance between individual privacy and freedom of press, thereby not protecting one at the expense of another.
Jiyeon Barta is a J.D. candidate, 2017, at NYU School of Law.