Public rights (access) versus private rights (privacy)
Press versus Privacy
But this isn't a simple balance
Privacy is an illusion
The notion of privacy rights as law is barely 100 years old
And is very inconsistently applied
Laws that ensure access are very limited
And equally inconsistent in their application
Privacy
Privacy law is one of the newest areas of the common law
Not directly protected in the constitution
although aspects of several amendments have been interpreted as implying support for privacy
First proposed in reaction to late 19th century yellow journalism
Warren and Brandeis (1890) in Harvard Law Review
First cases in early 20th Century
There are four general issues in privacy
Appropriation of name or likeness
Intrusion
Private Info
False Light
Appropriation of name or likeness
The primary area in which privacy laws apply
But notable as being more of an equity issue (publicity) than a harm issue (invasion of privacy)
The rights to profit, or choose not to profit, from a persons name or image belongs to that person.
Name is a general construct. It applies to pseudonyms.
Its also a restrictive concept that only applies to people. Businesses get the same protection via Trademark law.
Image is a general construct. It not only applies to face, but to almost any variation in which someone might be recognized.
There are exceptions
Parody is protected
"Fair use" (a single picture) is protected
Creative and transformative use of image is protected
News is protected, including incidental use of news images in publicizing the press
Consent releases any claims, so long as the use is fairly immediate and the person giving consent is competent and of age
Note in these exceptions the iterative and self-similar nature of the evolving precedents
Intrusion
Probably the next best protected variation of privacy
Although the law is far more inconsistent here
People have some protection where there is a reasonable expectation of privacy
They have no protection when the behave in public, even where conditions are only marginally public
Secret recording where people can have a reasonable expectation of privacy is the biggest constraint
Private Info
Not very well protected, even for rape
Although there is growing legal protection, especially in Europe
And Internet data mining is raising concerns and, to a certain extent, legal protections
The standard for private info, where it is observed at all, is that the private info must be both offensive and not of public concern for a judgment of harm
False Light
The use of information that might be accurate in one context to create an inaccuracy in another
Very limited protection
The standard for false light, where it is observed at all, is an out of context depiction that is offensive and results from negligent behavior (e.g. not checking the facts) by the publisher)
Access
Gathering information
Another area that is relatively new in the law
There is little common law. Exclusion of information is commonly legal
There is no constitutional guarantee of access to public information
But illegal gathering of information is not protected
Trespass (property wins)
Harassment
Fraud
Misrepresentation
Failure to obey lawful orders
There has been some important legislation is this area
Freedom of Information legislation
Federal and all states
But with many exceptions and inconsistencies
National Security
Housekeeping
Statutory Exemption
Trade Secrets
Working Papers/Discovery
Personal Privacy
Law Enforcement
Financial Records
Geological Data
Government in the Sunshine Laws
Federal and all states
But very limited in scope
There are laws that constrain access as well
School records
Juvenile protection
Federal privacy act
Protection of News Sources
An issue of access because protecting identities is often prerequisite to getting important inside information
Balances the general sentiment that such protection is useful against the rights of accused
Three criteria matter to this balance
The relevance of the protected information
The extent to which the protected information is critical to the defense or goes to the heart of the issue
That there is no other source
In this balance, if these criteria are met
There is no protection in front of a grand jury and very few exceptions to this lack of protection
There is little protection in criminal cases
There is some protection in civil cases
But there is little protection in any sphere if the protection is compromised even marginally
disclosure of the source to anyone
traceability of the source via, for instance, telephone records)
the information is non-confidential
Courts repeatedly favor the rights of the accused in such cases.
Legislatures periodically restore the rights of the press in various ways
Shield laws
But the only real protection here is the willingness of a reporter to spend time in jail as a matter of conscience
that argues for taking care in making promises of protection to sources
A new variation on protected sources is anonymity on the Internet
Courts have generally been protective, setting a high bar for forcing ISPs to reveal the identities of anonymous posters
An effort to notify the individual
A clear demonstration of a defamation
A clear deomonstration of harm
A balancing of speech against harm
But economics, and the high cost of defense, has caused ISPs to identify individual when a request is made
Bottom line, anonymity on the Internet is an illusion
Contempt
The primary tool of a judge where a reporter refuses to provide information
Used to protect litigant, vindicate law, or reinforce the power and authority of the court and judge
Sentencing for contempt is generally very restrictive
Fines
Limited jail time
But contempt rules vary greatly from state to state
Assignment due next time
Find a current or recent newspaper article about a current court case that involves one of the major subjects in media regulation that we have already discussed. Examples of these subject matters are listed below, but you can find them in the syllabus and in the table of contents of Pember and Calvert. If you find more than one such article, that's great. Choice is good and you'll be picking one of these cases to investigate further.
Unless otherwise noted, the contents of this page
were written by participants on the Media Space Wiki, operated by Davis Foulger,
and should be cited accordingly. For example (APA): Foulger, D. and other
participants. (August 27, 2008). Regulation Of Media Fall2004 Session05. MediaSpaceWiki. Retrieved on from
http://evolutionarymedia.com/wiki.htm?RegulationOfMediaFall2004Session05.
MediaSpace Wiki