Part I
Laws and Regulations
Introduction
Over half of this handbook’s dialogue and guidance addresses the issues at hand from a legal standpoint. The handbook content is relatable to the conflict between and individuals right to privacy and media’s freedom of the press. These two strong and powerful elements of our legally defined rights and freedoms can be balanced with useful applications of consent and newsworthiness.
However, in the digital world with emerging technologies that can gather information at a rate we have not experienced; the media, with their technological focus, can sometimes intrude upon the individual’s “natural” right to privacy. The media does have a rightful place in a democratic society, but the public relations specialist has a role to play as well to utilize the same digital technologies to help balance the power between the sometimes-conflicting agents of a free society. The following paragraphs provide legal mechanisms that support the individuals right to privacy that are useful tools for the PR specialist assigned to facilities that cater to veterans.
1st Amendment Issues
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The Constitution clearly establishes the right of the media to conduct themselves per their profession. The amendment plainly refers to this as a freedom “of the press.” Due to this clear Constitutional freedom, members of the press generally see themselves as agents of the democratic process, so one would never want to behave when approached by the media in a “public place” in a manner that University of Missouri communications professor Melissa Click did when a photographer showed up at a campus protest (AP, 2016).
[Gonzaga hires Melissa Click, Missouri professor fired after calling for ‘some muscle’ to remove student journalist at protest__nydailynews.com]
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This discussion relates to the concepts of “public places” and “private places.” The meaning of these words is implied, and the contrast between these two words is indicative of their legal meanings; but in the framework of case law, the gray areas are usually defined but the Courts. In a very general sense, public places are areas where one does not have to fear being charged with trespassing, which according to the Cornell Legal Information Institute is defined as “the act of knowingly entering another person’s property without permission” (Cornell Legal Information Institute, n.d.). This is important to note because of the case of Le Mistrel v. CBS, which will be discussed in the next session, is a situation where a reporter was charged for trespassing on a restaurateur’s place of business.
The important thing to note is while the First Amendment does grant news gathers the right to pursue their endeavors, it “has never been interpreted to grant journalistic immunity from crimes and torts committed during news gathering” (Moore & Murray, 2012). Consider the advice that lawyer.com provides on their blog to photojournalist an videographers concerning privacy law and trespass.
[Videotaping and Photography on Private Property_lawyer.com]
And interesting bit of advice for news gathering on the site is “If you think that you're getting away with something, then you probably are, at least until you're discovered” (Lawyers.com, n.d.)
The bottom line when it comes to issues like this is that there is a balancing struggle between free press and privacy rights, and this dichotomy of legal protections is best resolved by consent, newsworthiness, a little common sense, and the golden rule.
The Right to Privacy
In their book, Media Ethics: Issues and Cases, Phillip Patterson and Lee Wilkins, provide a good summary of the “notion of ‘privacy’” and the “tort of privacy.” They claim that is “manifest” itself in the following ways;
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Intrusion upon a person’s seclusion or solitude, such as invading one’s home or someone’s personal papers to get a story.
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Public disclosure of embarrassing private facts, such as revealing someone’s notorious past when it has no bearing on that person’s present status.
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Publicity that places a person in a false light, such as enhancing a subject’s biography to sell additional books.
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Misappropriation of a person’s name or likeness for personal advantage, such as using Hollywood megastar Julia Roberts’s image to sell a product without her permission. (Patterson & Wilkins, 2011)
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In the previous First Amendment section, the concept of a conflict between press freedoms and privacy rights was treated to some extent; however the four ways in which privacy were not so succinctly described until the preceding paragraph. While these four manifestation of privacy violations may seem to be clear, it is important to note that cases involving privacy violation are left to torts, which involves what is typically known as common law, which is very reliable on case law. For that reason, the following cases have been established to bring our current understandings of privacy violations. Privacy rights are not inherent in the Constitution, however, that does not mean that are any less powerful than the free press protections within the First Amendment. These things being said, the following cases are presented so as to treat the topic of this handbook
Landmark Cases
The concept of a right to privacy was first brought to light in 1890, when Samuel D. Warren and Louis D. Brandeis published their, The Right to Privacy, in the Harvard Law Review (Warren & Brandeis, 1890). While this journal article may not have been an actual court case, it significance in laying out the groundwork for the law on the topic that would follow through the court case presidents to follow, is evident as Roy Moore and Michael Murry’s textbook, Media Law and Ethics, mentions the Harvard Law Review article before any other court case as their text considers the origins of the right to privacy (Moore & Murrary, 2012), a right that is not necessarily, explicitly mentioned in founding father documents, but, as time will tell, is determined to be implied in the historical cannons.
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Cases from the “The Right to Privacy”
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The cases in Table 1, were included to foster the concept of the “natural,” right to privacy ans so for the reader to rethink the concept of “natural” in the digital world. As in fact, Warren and Brandeis propossed that the right-to-privacy was a category of common law, which is a derivative of the idea “natural law.” As in Abernethy v. Hutchinson, should not an academic have purvey to his own ideas, without his students using them for their own profit? In addition, as in Prince Albert v. Strange, shouldn’t the Royal Prince have property over his own likeness, even though an artist sketched it? And as in, Tuck v. Priester, how many legal copies can I make of this picture? And in Pollard v. Photographic, when under this right to privacy, do not individuals have a say in how their photographic image be displayed?
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Largely, these cases focused on the idea of protections based “upon the ground of an alleged breach of an implied contract or of a trust or confidence,” which will lead to considerations upon an “individual” having;
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"[…]full protection in person and in property is a principle as old as the common law […] The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others."
(Warren & Brandeis, 1890)
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Fifteen years later, the concept of a “right to privacy” would be finally established in the court system.
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Pavesich v. New England Life Insurance Co. (1905)
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Paolo Pavesich brought an action against the New England Mutual Life Insurance Company, a due to an issue of the Atlanta Constitution where “there appeared a likeness of the plaintiff, which would be easily recognized by his friends and acquaintances, placed by the side of the likeness of an ill-dressed and sickly looking person.” The jest of the advertisement is that the “sickly looking person” was worse off then Pavesich because Pavesich had purchased a life insurance policy with New England Life Insurance Co. Pavesich had “never made any such statement, and has not and never has had a policy of life-insurance with the defendant company.” Pavich claimed that “the publication is malicious and tends to bring plaintiff into ridicule before the world, and especially with his friends and acquaintances who know that he has no policy in the defendant company” (Gallagher, 2016).
The Georgia Supreme Court reversed the previous dismissal decision against Pavich’s damages claim (Moore & Murrary, 2012), establishing the concepts of libel, false light, and the right to privacy.
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Manola v. Stevens. (1890)
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Of particular interest, while not very often mentioned in the modern discussions concerning privacy, it is the case when concerning journalists was that;
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"It seems that the first case in this country where the right of privacy was invoked as a foundation for an application to the courts for relief was the unreported case of Manola v. Stevens, which was an application for injunction to the Supreme Court of New York, filed on June 15, 1890. The complainant alleged that while she was playing in the Broadway Theatre, dressed as required by her role, she was, by means of a flash-light, photographed surreptiously and without her consent, from one of the boxes by the defendant; and she prayed that an injunction issue to restrain the use of the photograph. An interlocutory injunction [***34] was granted ex parte. At the time set for a hearing there was [*206] no appearance for the defendant, and the injunction was made permanent." (Gallagher, 2016).
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The last two cases demonstrate that the right to privacy is a well-established, historical founding within common law in the United States, specifically Pavesich v. New England Life Insurance Co. (1905) and Manola v. Stevens (1890). These cases have established a clear court history of invasion of privacy and an overwhelming majority of Court findings that tend to go toward the basic right to privacy.
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Content and Messaging
The importance of these cases to the emerging digital world may seem difficult to see at first glance, as they are over a 100 years old. But it is important to note that these cases coincided with a huge leap in communication technology -- the photograph.
Further connections of the right to privacy will be explored in this handbook, especially as related to current “digital communication practices” and the technological link to the “communication industry.” In this handbook, there is a proposed connection of a drastic leap in communication technologies over time that have allowed for breaches of privacy to be expanded beyond the scope of the Constitutional framers conception. Consider the strangeness of the new photographic technology that occurred around the late 1800s; and the compare it to the, 2000 to present advent of a vast digitally, available storage information cache that can be accessed by anyone with some general “Google” search skills. By “going old school,” I propose that a new light on the right to privacy be considered, as relating to veterans in homeless shelters or other facilities across America that cater to our veterans who may be experiencing financial and/or health difficulties that have left them in the possible realm of false light and other privacy concerns when they have cameras focused upon them, whether that be in the forefront or background. Before continuing, it is important to discuss the concepts of false light and appropriation from a legal sense.
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False Light
False light is a very easy legal concept to master, that which is published must be untrue and the publisher must realize it was untrue or have a reckless disregard for the truth.
Appropriation
At first glance, it may appear that the concept of appropriation and how it is separate from newsworthiness, a concept that will be explored in the Nameth case that follows , it is important to note that the role of a publisher or media is not relieved from liability for “commercial use of a person’s name, image, or likeness” (Moore & Murray, 2012).
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These things being considered, it is important to reference the importance that Moore & Murrary found “The Right to Privacy” (Warren & Brandeis, 1890) to be in establishing this (Moore & Murrary, 2012). In Table 1, I have listed the cases included in that Harvard Law Review article. They were included for the idea that one has a “natural right” to the property that involves one’s own image.
Court Cases and the Digital World
Pavesich v. New England Life Insurance Co. (1905) is a clear, historical case of appropriation and even false light. This case is more than 100 years old, and the legal arguments are confusing; however, consider the next CNN story posted on YouTube as we consider these issues of appropriation and false light in the modern Web 2.0 world.
Mark Oberholtzer and Mark-1 Plumbing, Inc. v. Charlie Thomas Ford, LTD (2015)
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The similarities of this modern case to the the historical Pavesich v. New England Life Insurance Co. are undeniable.
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The basic defenses of any claim of violation of privacy is two fold; either consent is given, or the material has a newsworthy value. Consider the next two examples, where the comedian Johnny Carson never gave permission to be forever associated with toilet bowels, and Joe Nameth never endorsed subscribing to the magazine Sports Illustrated.
Carson v. Here’s Johnny Portable Toilets, Inc.
Since the time that Johnny Carson became the host in 1962 of the NBC-TV show, “The Tonight Show,” the host became commonly associated with his introduction by co-host Ed Mchmahon which was simply, but eloquently delivered as “Here’s Johnny!” In 1976, Earl Braxton founded a company known as Here’s Johnny Portable Toilets. The company’s slogan was, “The World’s Foremost Commodian.” The false light is sort of implied there. For sake of brevity, and legal jargon, in the end the U.S. Court of appeals held that some sort of ownership of identity or trademark was violated by the toilet bowel company against Johnny Carson’s appropriated right of ownership of his brand.
Joe Nameth v Sports Illustrated
In 1975, in Nameth v. Sports Illustrated, the hall of fame NFL quarterbacker Joe Nameth sued Sports Illustrated for publishing pictures of himself in accordance with the actions he had taken on the field to lead his team to a Super Bowl win in 1969 along side of subscription advertisements. The photos were found to be newsworthy and therefore Nameth was said, by the Courts, to have no claim to the appropriation.
Nameth/ Carson retrospect
In retrospect, we can see that the Court’s decided that while permission was not given in both cases, in the case of Joe Nameth, news worthiness was assigned as the quarterback had famously led his team to a Super Bowel win; however, there was nothing newsworthy in naming toilets after the famous comedian Johnny Carson, and also Carson didn't give consent. The Carson verdict, in particular, appears to spread the appropriation legal constructs to include trademarks and undocumented copyrights. This is an important consideration considering social media and Web 2.0.
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Consent
Consent usually involves voluntarily agreeing to some sort of act or proposal. In the case of this handbook, it would be simply the case of a veteran in the vicinity of the facility agreeing to be photographed or interviewed in connection with his or her status with the facility.
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newsworthiness
As technologies advance, capturing "newsworthy" footage and what is not newsworthy, is not a clear distinction by legal standards. This concept is best up to ethics and choices made based upon the situation, however this discussion is best left to the next section of this handbook in Part II. The point being here, is that determining newsworthiness is not a decision that is completely left to the choices made by the reporter. As this handbook is concerned with facility matters, it is important that the PR representative ensure that the individuals in question are well aware of their privacy rights and the concepts of consent and private versus public places and the varying protections afforded by the law regarding choices in behavior when confronted by the media on facility grounds.
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Dietemann v. Time, Inc. (1971)
A Time magazine news gatherer received a tip that a person was pretending to be a doctor and actually practicing medicine illegally. The Time investigator pretended to be a patient and gained access of the physicians home where he was doing the illegal medical practice. The reporter had a hidden camera and was able to captured an image of the fake doctor checking for a lump in a women’s breast. The Time reporter had made arrangements with the local police to record audio and images using the technology of the time. Once the fake doctor was arrested, Time magazine published the controversial images. The court concluded “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” (Tedford and Herbeckle, 2009)
Mistrel v. CBS
In 1972 a Channel 2, New York, CBS reporter showed up unannounced at restaurant following up a lead that a particular restaurant was cited for health code violations with “rolling” which had the affect of something “similar” to “waiting customers leave in anger, patrons dash off without paying, and others hide behind napkins or under tables.” The Court found that the reporter’s actions constituted trespass.
(Moore & Murray, 2012)
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Dietemann /Mistrel retrospect
These last cases are important because they go to the aspect of intrusion, which is another form of privacy rights violations that deal with private places. Your facility, especially when providing living accommodations and things of that nature, should be treated as a private place where reporter’s First Amendment protections do not necessarily apply in all situations.
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* Best Legal Practices *
As a communication professionals and staff within organization that cater to veterans, , the following major objectives are proposed to be followed each Veterans Day.
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Prepare for it . A new trend in homelessness due to PTSD is occurring in facilities across the nation as veteran's experiencing financial and health difficulties are a younger generation following the wars in Iraq and Afghanistan. This is issue is indeed newsworthy and it requires not only professional journalist to cover the issue properly, but also trained public relations personnel to ensure that the privacy rights of these veteran's are being honored.
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Know the law . The two defenses of privacy intrusion are consent and newsworthiness, and newsworthiness is not simply determined by the individual journalists. While they may have First Amendment protections, these protections are not limitless as there are equal protections afforded the veterans living in a facility under the rights to privacy.
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Respect the law . The Melissa Click situation demonstrates an overbearing interpretation of right to privacy that went so far as to restrict the First Amendment protections afforded to journalist during news gathering activities. However, the powers afforded by the First Amendment, do not usurp the protections against invasion of privacy.
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Cover the law . Always ensure that consent is clearly explained and provided for each video or photographic capture and as well as with any interviews. Ensure that respect for individual privacy is being honored at all times during journalist visits.