The Right to Privacy

Privacy, meaning the right to be left alone, has intellectual roots tracing back to the 19th century. On December 15, 1890, Samuel D. Warren and Louis D. Brandeis had their article “The Right to Privacy” published in the Harvard Law Review. This article was highly regarded as one of the exceptional examples of the effect legal journals have on American law, and was the first of many future law review discussions. “It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and if it does what the nature and extent of such protection is” (Gregory, Kalven, and Epstein 1133). Warren and Brandeis stressed the importance and necessity for some form of protection for the private individual when the press is overstepping their boundaries and the indecency their gossip creates. Several decades later, in August of 1960, William L. Prosser published his article “Privacy” in the California Law Review. In this article he outlined the four classifications of privacy law which are as follows:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. The second classification refers to publication of private matters, which will be the main focus of research and analysis for this paper. The most common definition of public disclosure of private facts is set forth in the Restatement (Second) of Torts and is adopted by many states: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that, a.) would be highly offensive to a reasonable person, and b.) is not of legitimate concern to the public” (Gregory, Kalven, and Epstein 1152). This particular issue of invasion of privacy is weighed against the First Amendment’s protections of free speech. Many judges and legal scholars find this particular tort to be the least favorable out of the four because it goes against the certain First Amendment principles. “There is an undoubted freedom of the press, guaranteed by the constitution, which justifies the publication of news and all other matters of legitimate public interest and concern” (Prosser 642). Unlike libel or slander (defamation) truth of the private matter and disclosed information is not necessarily a defense. The second requirement, “is not of legitimate concern to the public” gives the media what might be called the “newsworthiness defense”. However, a plaintiff must prove that an article isn’t newsworthy despite its publication, this is because the public interest of the subject is not presumed by the matter’s publication. A case involving private matters would be unsuccessful if it does not meet the two prong test: highly offensive and not of public interest (not newsworthy). Stated another way, even the highly offensive use of a subject will not render the media liable for damages if it can be proven that the material was, in fact, newsworthy. Guaranteed by the United States Constitution, there is an undoubted freedom of the press which justifies the publication of news and all other matters of legitimate public interest and concern.

Beyond public figures or public officials, there are plaintiffs who have not sought publicity or consented to it, but through their own conduct or by mistake they have become “news”. “Those who unwillingly attract public attention by being accused of crime, or becoming associated with crime, or suicide, or divorce or other interesting events, even as innocent bystanders, become reluctant public characters for a period, and until they have reverted to the lawful and unexciting life led by the great bulk of the community, they are subject to the privileges which publishers have to satisfy the curiosity of the public as to their leaders, heroes, villains and victims” (Prosser 643). In the decision of Melvin v. Reid 112 Cal. App. 285, 297 (1931) it was a rare exception to the area publication of private matters. Over the last century and since this case, the media almost always wins in any lawsuit and is typically protected for their publications. This case is best known to have set the stage for undermining privacy rights in public places. Gabrielle Darley had been known to live a “colorful life” and at one time was involved in prostitution. After being arrested and tried for murder, a jury acquitted her and she decided to turn her life around. “At this point, in 1918, she abandoned her life of shame, married Bernard Melvin, and lived a righteous life, earning a place in respectable society” (Friedman 370). Many people she was then associated with knew nothing of her past.

Soon her cover was blown when, in 1925, a movie appeared titled “The Red Kimono”. The film was based on her life struggles and used her real name, leading Gabrielle Darley Melvin to bring a lawsuit. The California appellate court was sympathetic to Melvin in this case, saying the producers of the movie were wrong to destroy Gabrielle’s reputation and her social standing for no other reason than private gain. “One of the most difficult questions in the law of defamation and privacy involves defendant’s liability for truthful statements about the plaintiff’s past which are of no immediate relevance to current issues and injure the plaintiff’s reputation and peace of mind” (Gregory, Kalven, and Epstein 1157). The issue of truthful accounts of the embarrassing past is also raised in the latter case of Briscoe v. Reader’s Digest, 4 Cal. 3d 529 (1971). The producers of the film argued that all the facts in the movie were open and found in court records and were true and accurate. The Court ruled that the defendant’s actions were not justified by any standard of ethics or morals and, in fact, violated Gabrielle’s rights guaranteed by the California Constitution: “to pursue and obtain happiness”. This case established California law that just because a matter is of public record does not necessarily preclude damages, and the court ruled in favor of Gabrielle Melvin.

Today, this case would have been decided rather differently due to the fact that information in open court records is privileged as noted in Cox Broadcasting Corp. v. Cohn, , 420 U.S. 469 (1975). The case of Sidis v. F and R Publishing Co., 113 F. 2d 806 (1940) involved a man named William James Sidis who was a famous child prodigy in 1910. Sidis sued the New Yorker magazine for an article they published in 1937 describing him as a middle-aged, bizarre man who had failed to live up to his childhood success. Under the title “Where Are They Now?” the article on Sidis reported on his career as an insignificant clerk, his current housing situation, and other intimate details of his personal life. Sidis alleged in his lawsuit against the publisher of the New Yorker that these were private facts and sued for invasion of privacy. The Second Circuit court disagreed and found the article on Sidis both newsworthy and lacking highly offensive details. “The article in the New Yorker sketched the life of an unusual personality, and it possessed considerable popular news interest” (Gregory, Kalven, and Epstein 1151). This Sidis ruling is important for two reasons, the first is that a time lapse does not deprive the public of legitimate interest in a newsworthy person and the second is that there is no liability unless the personal facts are highly offensive. In this case and many after, the judge agreed that public interest trumps offensiveness. “The lapse of even a long period of time after events which are legitimate “news” at the time will not necessarily destroy the privilege to receive the events and remind the public of those who took part in them, since the press is no less privileged to discuss the past than the present” (Prosser 644). The Court ruled for the defendant, F and R Publishing Co., because even though there was the notion of a time lapse, Sidis was still of public interest and newsworthy so publications should not be restricted or barred on their expression and the publication itself was not highly offensive. In 1967, Reader’s Digest published a story entitled “The Big Business of Hijacking” describing the serious problem of repeated commercial truck thefts. In the case of Briscoe v. Reader’s Digest, 4 Cal. 3d 529 (1971). The story included Marvin Briscoe’s name and how he stole a truck in Danville, Ky., and went on to serve jail time eleven years earlier. In the eleven years since his crime, Briscoe was married and had a family who knew nothing of his past.

After the article was published he was “scorned and abandoned” by his family, friends and society. The California court discussed Briscoe’s cause of action, taking the position that even if the incident was protected by the newsworthiness privilege, identification by name was not. However, the Court ruled that Reader’s Digest had the right to report the facts of the plaintiff’s criminal act. This is due to the fact that media publication of the circumstances under which crimes were committed in the past may prove to be educational in the same way that reports of current crimes are. “It is for the trier of fact to determine (1) whether the plaintiff had become a rehabilitated member of society, (2) whether identifying him as a former criminal would be highly offensive and injurious to the reasonable man, (3) whether defendant published this information with a reckless disregard for its offensiveness, and (4) whether any independent justification for printing plaintiff’s identity existed” (Gregory, Kalven, and Epstein 1157). The U.S. Supreme Court found for Reader’s Digest on the basis that Briscoe was still newsworthy because the incident was a matter of public record even though there was a time lapse. The first “true” privacy case that reached the Supreme Court was Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). The Court held that civil liability in a “true” privacy action could not be imposed upon a broadcaster for truthfully publishing information released to the public in official court records. The father of Cynthia Cohn sued Cox Broadcasting because of a TV news broadcast of the fact that his daughter was a rape victim. At this point in time, four states (Georgia, Florida, South Carolina and Wisconsin) had laws barring the publication of rape victims’ names.

Since this was a case that took place in Georgia, the publication was alleged to be in violation of Georgia statute and the father sued for invasion of privacy. Cox Broadcasting Corp. argued that the information was lawfully obtained because a reporter learned the victim’s name from a court indictment given by a police officer by mistake. “Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it” (Gregory, Kalven, and Epstein 1163). The issue that the press was overstepping its boundaries by publishing essentially private information dates back to the main thesis Warren and Brandeis had published in their article. The Court found for Cox Broadcasting Corp. because the public interest was presumably being served when the information was placed in the public domain on official court records. “The Court’s decision to uphold the rights of a free press reinforced other landmark free press decisions in this century that allowed the rights of the press to outweigh those of the individual citizen” (Duffy 543). The Court’s decision in this case may have freed the press from certain restriction imposed by individual states, however it placed a greater responsibility for self-restraint on the press. The law is clear on this particular matter, however the ethical and moral issues are a bit more complicated. The case of Virgil v. Time Inc., 527 F. 2d 1122 in 1975, involved a long article on a body surfer named Mike Virgil published by Sports Illustrated Magazine, which is owned by Time Magazine. This particular case demonstrated how a seemingly harmless profile story can lead to expensive litigation.

Initially, Virgil cooperated with the magazine in an interview for the article and in it he outlined some of his personal, reckless and “stupid” traits. After the story was published Virgil sued, arguing some of the embarrassing aspects of his life should not have been reported, though he gave consent to the interview. The appellate court of California disagreed and ruled that although the personal details may have been embarrassing they provided important context to the story of his public personality. “Courts often consider the following three factors in determining if the private facts in question are of legitimate public concern (i.e. are newsworthy). (1) The social value of the private facts that were published. (2) How deeply the disclosed private facts cut into ostensibly private affairs. (3) The extent to which the plaintiff (the individual to whom the private facts pertain) voluntarily rose to a position of public notoriety.” (Pember and Calvert 304). Judges in these types of cases often observe that newsworthiness is measured by an individual’s right to keep private facts from the public against the public’s right to know and interest. The Court said the story was acceptable because the elements of what constitutes a private matter that should not be published were not met, therefore they found for Sports Illustrated/Time magazine. In addition to newsworthiness, a private person’s consent to some part of the publication can also protect the publisher from liability in a private matters case. In today’s society it is important journalism practice to always self-identify and clearly state that what is interviewed may be published or broadcast. “You can use aninterview release form.This release can help protect you againstmisappropriation and right of publicityclaims in addition to publication of private facts claims” (Digital Media Law Project).With the current expansion of individuals using social media and other Web sites, it is easy to question whether people still value their privacy as much as the past. Stories are published and broadcasted daily in newspapers, on television and on the internet creating fast dissemination of information that may be about the private lives of public persons.

These publications however, seem to get the most attention from viewers which rehashes issues of the past because the public interest in stories in most cases trumps offensiveness of the publication. It is easy for journalists and reporters to become desensitized to the information they release to the public, but that should never be used as a reason to deny the public information that has legitimate public interest and concern.

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