Mass Media Law: Privacy and Publicity

• These notes cover key concepts related to mass media law, focusing on privacy, publicity, news sources, and fair trial issues.

Three Conceptions of Privacy

• Autonomy refers to personal decision-making rights.
• Space relates to physical privacy in specific areas.
• Information concerns the privacy of personal facts.

Privacy Law Origin

• Privacy law stems from common law principles.
• It arises from constitutional interpretations.
• State statutes also contribute to privacy law.

Elements of Appropriation

• Appropriation involves using someone's name or likeness.
• This use must be for commercial or trade purposes.
• It must occur without the person's consent.

Right to Privacy vs. Right of Publicity

• The right to privacy protects individuals from emotional distress caused by unauthorized use of their identity.
• The right of publicity protects celebrities from unauthorized commercial exploitation of their likeness.

Name or Likeness in Appropriation

• Name or likeness includes a person's full name.
• It can also encompass a nickname or photograph.
• A person's voice or other identifiable features are included.

Commercial or Trade Purposes

• Advertisements are considered commercial or trade purposes.
• Product endorsements fall under this category.
• Merchandising also qualifies.
• News reporting is generally a protected activity.

Defenses for Appropriation

• Consent is a defense against appropriation claims.
• Newsworthiness serves as a defense.
• Incidental use can also be a valid defense.

Rule from Comedy III Prods. Inc. v. Saderup, Inc.

• The "Transformative Use Test" came out of this case.
• This test protects artwork with significant creative elements as protected speech.

When Consent Does NOT Work as a Defense

• Consent is invalid if the person is a minor.
• Consent is invalid if the person is mentally incapacitated.
• Consent obtained through deception is not valid.
• If the use exceeds the agreed-upon scope, consent is not a defense.

Difference Between Intrusion and Trespass

• Intrusion invades privacy (e.g., wiretapping, hidden cameras).
• Trespass involves unauthorized entry onto property.

Reasonable Expectation of Privacy

• Private places, such as homes, have higher expectations of privacy.
• Hotel rooms and restrooms also have high expectations of privacy.

Intrusion in Public

• Intrusion claims are generally not valid in public.
• Exceptions occur with excessive surveillance or harassment.

Defenses for Intrusion

• Consent serves as a defense against intrusion claims.
• Public interest can be a defense in rare cases.

Invasion of Privacy: Publication of Private Information & False Light

• Public disclosure of private facts involves revealing private information.
• This information must be highly offensive.
• The information must be non-newsworthy.

Publicity vs. Private Facts

• Publicity involves widespread disclosure in media.
• Private facts include medical records.
• Financial details are considered private facts.
• Sexual history is also included.

Highly Offensive Test

• A reasonable person would find the information deeply humiliating or embarrassing.

Defenses for Public Disclosure of Private Facts

• Newsworthiness is a defense.
• Public domain information is also a defense.
• Consent serves as a defense.

Rule from Cox Broadcasting Corp. v. Cohn

• Publication of information lawfully obtained from public records is protected.

False Light

• False light involves publishing misleading information.
• The information must portray someone inaccurately.

False Light Offensive Test

• The misrepresentation must be significant.
• A reasonable person must find the misrepresentation harmful.

Fault in False Light Case

• Public figures must prove actual malice.
• Private individuals must show negligence.

Protection of News Sources/Contempt Power

• A journalist is someone regularly gathering and reporting news.
  • Mark Madden (1998) example.

Rule from Chevron v. Berlinger

• A journalist must act independently.
• They must maintain editorial control.

Confidentiality

• Confidentiality involves keeping sources anonymous.
• Confidentiality can be breached by court order.

Failing to Comply with a Subpoena

• This can lead to contempt of court charges.
• Fines and jail time are possible consequences.

Search Warrant vs. Subpoena

• Warrants allow immediate access without journalist cooperation.

Promissory Estoppel

• It enforces promises if breaking them causes harm.

Rule from Cohen v. Cowles Media (1991)

• A verbal promise of confidentiality can be legally binding.

Rule from Branzburg v. Hayes (1972)

• Journalists do not have an absolute right to withhold sources in criminal cases.

Confidentiality in Civil vs. Criminal Cases

• Criminal cases have stronger government interest in disclosure.
• Civil cases provide greater journalist protection.

Shield Laws

• Shield laws protect journalists from revealing confidential sources.

Absolute vs. Qualified Privilege

• Absolute privilege offers full protection.
• Qualified privilege is determined case-by-case.

Mississippi Shield Law

• Mississippi has a shield law.

Federal Shield Law

• There is currently no federal shield law.

Exceptions to Shield Laws

• National security is an exception.
• Criminal investigations can be exceptions.
• Overriding public interest may create exceptions.

Free Press-Fair Trial: Remedies and Restrictive Orders & Closed Judicial Proceedings

• Prejudicial reporting is media coverage that biases jurors.
• It affects a fair trial.

Impact on a Jury

• Pre-trial publicity can create preconceived notions.
• This makes a fair trial difficult.

Skilling Test

• Skilling tests whether pre-trial publicity makes a fair trial impossible.

Importance of U.S. v. Burr

• It established that jurors must be impartial, even with prior knowledge.

Trial-Level Remedies for Pre-Trial Publicity

• Voir dire is the jury screening process.
• Change of venue involves moving the trial to a different location.
• Sequestration involves isolating the jury.
• Continuance means delaying the trial.
• Admonition is the judge's warning to the jury.

Restrictive Orders

• Restrictive orders limit what media can report before a trial.

Rule from Nebraska Press Assoc. v. Stuart (1976)

• Restrictive orders on the press are rarely allowed.

Three Conditions for Restrictive Orders

• Intense publicity threatens a fair trial.
• No alternative measures would work.
• The order would be effective.

Limiting Communication Between Jury and Press

• It's necessary during deliberation and sequestration to prevent bias.