Understanding Intrusion: A Legal Perspective on Privacy and Journalism - Prof. Eugene Sena, Study notes of Communication

Download Understanding Intrusion: A Legal Perspective on Privacy and Journalism - Prof. Eugene Sena and more Study notes Communication in PDF only on Docsity! Know the legal DEFINITION for this common law privacy tort, the DEFENSES against it, the appropriate COURT CASES, and how it is treated under OKLAHOMA LAW. 19-Intrusion: Background: It is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual. The act of gathering the material constitutes intrusion. OK: “One who intentionally intrudes, physically or otherwise, upon the seclusion or solitude of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. OK: “Intrusion also requires that the ‘trespassing’ party be aware of their malfeasance: ‘An intrusion occurs when an actor believes, or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act.’”  Is intrusion an information-gathering tort or a publication tort? o Information-gathering tort; the legal wrong occurs when the info is gathered-publication of the info is not needed  For intrusion to have occurred, the plaintiff must have had a reasonable what? o The plaintiff must have had a reasonable expectation of privacy o The Oklahoma SC has held that for a plaintiff to win, the intrusion must have been “nonconsensual” and “highly offensive to a reasonable person”—must also be intentional  Be familiar with the examples. o In a case involving mandated employee drug testing, the OK SC balanced the workers privacy concern against the corporations “legitimate interest in providing a drug-free workplace” and concluded that his intrusion claim had failed “to meet the laws highly offensive to a reasonable person test o Eavesdropping to overhear a conversation can be an intrusion– bad if private location, okay if public location  Restaurant – if other diners can hear the conversation, the speakers didn’t enjoy a reasonable expectation of privacy o Gathering personal info from an individuals private records if an intrusion o The use of a telephoto lens on a camera to a photograph a subject might by subject to an intrusion  Rules of thumb regarding intrusion and public places. Be familiar with the examples. o Common law generally holds that if in a public place, you can record anything you see, except you:  Can't harass (can be persistent, but not highly intrusive or overzealous; simply being annoying is not necessarily an invasion of privacy)  Can't use electronic or photographic equipment to enhance vision (can't use telephoto lens to see what can't see without it). o You can eavesdrop in a public place; up to people in conversation to make private. o The maxim that there can be no expectation of privacy in public is not invulnerable, especially w/ an increasing # o American crts demonstrate a growing sensitivity to way in which info is gathered by some news orgs in the 21st century. o Deteresa v. American Broadcsating Co. Inc . – American Airlines attendant (D) sued ABC for secretly recording a conversation she had w/ ABC prod Anthony Radziwill. (OJ Simpson, on same flight as him night that Nicole Brown Simpson and Ronald Goldman were killed.) R asked D to show up on TV, D declined but R secretly recorded the conversation and videotaped it. Brief segment shown on ABC news. Court – no reasonable expectation of privacy when plaintiff was talking w/ a journalist in plain sight of anyone who passed by on the public street. o Stressman v. American Blackhawk BC - Woman in restaurant companied of intrusion, TV news crew videotaped patrons sitting in a room. Unreasonable for individuals to expect privacy in other settings where people gather. o Courts have recognized gradations in an expectation of privacy.  ABC sent reporter to work as phone psychic at telephone- marketing go. In CA. Secretly photographed and recorded conversation w/ several co-workers. Network sued for intrusion, etc. CA SC:  “In an office or other workplace to which the general public does not have unfettered access employees may enjoy a limited, but legitimate expectation that their conversation and other interactions will not be secretly videotaped by undercover TV reporters, even though their conversations may not have been completely private.“  Can you photograph people inside a restaurant? o "Courts are divided over whether a restaurant is a private place in which a diner may expect to be free from unwanted photographers and interviewers." (The Law of Public Communication, p. 175.) – online reading court said Dodd should sue the person committing the act. o Bilney v. Evening Star (MD 1979)  Consistently held that liability can not be assessed against the publisher of that material so long as it had been obtained innocently.  Several former and current members of U o Maryland basketball team sued WA Evening Star for publishing an article that revealed portions of their academic records. Somebody gave newspaper the info. No evidence presented that reporters either personally inspected the records or asked someone else to do it. No suit maintained on intrusion theory.  Does the First Amendment provide a right to harass people in public ? o No o Galella v. Onassis (2nd Cir. 1973).  Common law generally holds that if in a public place, you can record anything you see, except you:  1 - can't harass (can be persistent, but not highly intrusive or overzealous; simply being annoying is not necessarily an invasion of privacy)  2 - Can't use electronic or photographic equipment to enhance vision (can't use telephoto lens to see what can't see without it).  First Amendment doesn't give right to harass. Public figure has right to physical private space.  Ron Galella, a free-lance photographer who built a career on pictures of Jackie Onassis, claimed she was a public figure.  A federal court agreed, but said the First Amendment does not license Galella to trespass inside private buildings. "There is no constitutional right to assault, harass, or unceasingly shadow or distress public figures."  Court ordered him to stay a specific distance away. In 1982, a court found him in contempt for violating the order. He promised to never take another picture of her. o How do you distinguish between harassment and aggressive reporting?  Whether or not there is tremendous public interest (?) o Wolfson v. Lewis  1969 – PN, Reporters Paul Lewis & Stephen Wilson were preparing a story on the high salaries paid to corporate execs at US HealthCare while the co was imposing severe cost cutting on patients. Story focused on Leonard Abramson, chairman of the board, and his daughter, son-in-law, Nancy and Richard Wolfson – also worked at US HealthCare. Wolfsons argued reporters used ambush interviews, shotgun microphones and other electronic equipment to harass and invade privacy after rejected requests for on-camera interviews.  Followed daughter to school & entire family on Florida vacation  Sued for tortuous stalking, harassment, trespass and invasion of privacy – intrusion upon seclusion. Asked judge to stop reporters from using intrusive news-gathering techniques until a jury trial was held.  Judge: through unreasonable surveiling, hounding and following, effectively rendered family captive in own home. Entered a preliminary injunction barring Lewis and Wolfson from any conduct w/ or w/out use o cameras that invade Wolfsons’ privacy, including (but not limited) harassing, hounding, following, intruding, frightening, terrorizing or ambushing family. ’97 – reached settlement and dissolved prelim injunction.  Rules regarding the use of hidden recording devices. Be familiar with the examples, including: o In Oklahoma, when can someone secretly record in-person conversations?  Under the States Security of Communications Act, reporters may secretly record telephone calls to which they are a party or have consent of one parties—Other states require all parties to agree so just to be safe apply the stricter rule.  In Oklahoma, reporters also can secretly record face to face conversation with someone who does not have a reasonable expectation of privacy in that communication.  “Regardless of the state, it is almost always illegal to record a conversation to which you are not a party, do not have consent and could not naturally overhear o When is the recording of face-to-face interviews always legal? Why?  Recording or videotaping a face to face interview is always illegal when the recorder’s camera or recorder is in plain view bc consent is presumed. o Dietemann v. Time, Inc. (9th Cir. 1971)  "The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime."  A plumber who practiced medicine at home without a license. Life magazine reporter and photographer, working with the local district attorney, posed as a couple to get into his living room to obtain information for criminal prosecution. They used a hidden tape recorder and camera. The plumber was arrested and pleaded no contest. However, he sued for invasion of privacy.  Life's defense was First Amendment right to gather information. A federal district court awarded $1,000 in damages. The Ninth Circuit upheld. Reason Life lost: use of false identity. o Cassidy v. ABC (Ill. 1978 )  Arlyn Cassidy and sev other Chicago police officers were acting as undercover agents, investigating massage parlors in the city. The owner of one massage parlor where police previously had made arrests believed he was being harassed by the officers and invited a television news camera crew to come in and secretly film and encounter between an undercover agent and a model at the parlor. Behind 2-way mirror, filming when Cassidy came in, paid $30 for deluxe lingerie modeling and subsequently arrested the girl for solicitation. 3 other agents came into the room at about the same time the TV crew burst through another door, filming as left bldg. Officers sued for intrusion, used Dietamann as precedent.  IL appellate court ruled in favor of journalists, distinguishing D case:  1 – Public officers acting in line of duty as filming took place.  2 – film crew was not in a private home, but public bus  3 – crew on hand at invitation of operator of premises o Desnick v. Capital Cities/ABC (5th Cir. 1995)  USDC IL – rejected intrusion claim against ABC after secretly photographed and recorded eye examinations at an ophthalmology clinic. Owners of clinic sued. Crt: Plaintiffs had alleged no damage from recording, other than it was bdcst. Rejected claim that recording violated doctor-patient privilege – b/c privilege belongs to patient, not doctor. Patient had authorized recording.  Dietmann – operating out home, not public place of business. Didn’t advertise, but clinic actively solicited public to visit the facility.  ABC secretly photographed and recorded eye examinations at an ophthalmology clinic. The owner sued for intrusion, but the Court rejected the claim because:  The plaintiffs were alleging no damage from the recording, other than its broadcast.  The patient-doctor privilege was not violated, because that privilege exists for the patient, not the doctor.  Rules regarding recording telephone conversations. o What does it mean for Oklahoma to be a "one-party consent" state?  Fla. Publishing Co. v. Fletcher (Fla. 1976): (also known as the "Silhouette Case") Sets the precedent for this common custom and usage.  A newspaper photographer took a picture of a silhouette left on a floor by a girl's body after a fire. A fire marshal had asked the photographer to take the picture when his own camera ran out of film.  The mother, who was not home at the time of the fire, sued, claiming trespass and an invasion of privacy.  The Florida Supreme Court said there was no trespass or invasion of privacy. The fire was a disaster of public interest and the photographer was there at the invitation of an official. It is customary for journalists to accompany public officials to the scene of disasters.  The U.S. Supreme Court refused to hear the case.  Other courts have not recognized the defense, reasoning that the property owner is only giving consent to officials, not to reporters. The homeowner is too confused in emergency situations to decipher who should be there.  Trespass in Oklahoma o Stahl v. Oklahoma (Ok. Ct. of Appeals 1983)  In 1979, nine reporters reported on the construction of a nuclear power plant in a joint effort by the Public Service Company of Oklahoma and two rural electric cooperatives. Because PSO officials were unhappy with media coverage of previous demonstrations, they restricted the media to a confined location in the center, or stayed outside the perimeter’s fence. When demonstrators crossed, several of the reporters did likewise. The reporters would not have been able to observe the encounters with the sheriff, nor the arrests being made for trespassing from the other side of the fence. They were convicted and fined $25 each. · What were the majority's and Judge Brett's rationales? With whom do you agree? § By a 2-1 vote, the Court of Criminal Appeals upheld that convictions, holding that the journalists need not have intended to commit a crime or injure the landowner to have trespassed. § “The FA does not shield newspersons from liability for torts and crimes committed in the course of news-gathering.” § Brett’s rationale was that the conviction was a violation of the First Amendment’s free press freedoms. He stated that the State did not have substantial interest to limit the journalists’ free pass, and that the manner in which the journalists obtained their information was neither destructive nor did restriction serve the public interest. He made three observations: § The protests were a newsworthy event and media coverage was afforded under the First Amendment. § Press access to this demonstration was not reasonable, because the press would have no knowledge of the demonstration due to the designated place and time to be on the site. This kind of prior restraint has been deemed to be presumptively invalid. § The information the press sought was about the operation of the government, such information that the public has a right to know.  Can reporters be held liable for fraud when they go undercover to obtain information? o Yes  Rules of thumb regarding obeying lawful police orders. Do police have absolute power at crime scenes? o Advice: go on the private property to cover the news event but leave if asked to by the owner or by officials. o No. o Freq restrict access of press and public to site. Reporters bound to respect these rules or face charges of disorderly conduct/worse. o Journalists must be careful not only to notice and obey the location of crime-scene tape but also to obey the lawful commands and orders of the police when no tape is present. o Police and fire officials must also respect rights of journalists – who also have a job to do