Protecting Privacy

HISTORY

Prince Albert v. Strange (H.L. 1849)

Warren & Brandeis, "The Right to Privacy," Harvard Law Review (1890) p. 365

I. PRIVACY: THREE DISTINCT ACTIONS IN TORT

1. Public Disclosure of Private Facts

*DISCLOSURE/PUBLICATION

*OF FACTS CONCERNING THE PRIVATE LIFE OF THE PLAINTIFF

*THE DISCLOSURE WOULD BE HIGHLY OFFENSIVE TO A REASONABLE PERSON

*THE FACTS ARE NOT OF LEGITIMATE PUBLIC CONCERN [ARE NOT "NEWSWORTHY"]

*RESULTING IN DAMAGE: DISTRESS, INJURY TO REPUTATION

 

CASES:

HAYNES V. ALFRED A KNOPF, INC. (7th Cir. 1993) pp. 367-368, 370-371

COX BROADCASTING V. COHN (1975) p. 378

FLORIDA STAR V. B.J.F. (1989) p. 381, p. 385, p. 387

2. False Light

*PUBLICATION

*WHICH IDENTIFIES THE PLAINTIFF

*AND CREATES A FALSE IMAGE OF THE PLAINTIFF

*THE IMAGE WOULD BE HIGHLY OFFENSIVE TO A REASONABLE PERSON

*RESULTING IN DISTRESS, INJURY TO REPUTATION

 

CASES:

CANTRELL V. FOREST CITY PUBLISHING CO. (1974) p. 396

BRAUN V. FLYNT (5th Cir. 1984) p. 401

3. Appropriation (Common Law)

*USE (PUBLICATION) OF PLAINTIFF'S IDENTITY OR PERSONA

*WITHOUT PERMISSION

*PLAINTIFF IS IDENTIFIED

*RESULTING DISTRESS, DAMAGE TO DIGNITY

Pavesich v. New England Life Insurance Co. (Ga. 1905)

Mardi Gras Indians threaten suit

 

II. PRIVACY STATUTE: NEW YORK CIVIL RIGHTS LAW

Roberson v. Rochester Folding Box Co. (NY 1902) failed to recognize the right in NY.

The legislature passssed the NY Civil Rights Law in 1903, creating an action in appropriation privacy:

*USE OF NAME, PORTRAIT OR PICTURE OF THE PLAINTIFF

*FOR ADVERTISING OR PURPOSES OF TRADE

*WITHOUT PLAINTIFF'S WRITTEN CONSENT

Allen v. American Apparel, Inc. (settled 2009)

Obama and Weatherproof

III. THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

* defendant engaged in intentional/reckless conduct

*which was outrageous (deeply offensive in light of accepted standards of decency and morality

*the conduct caused severe emotional distress

CASES:

HUSTLER MAGAZINE V. FALWELL (1988) pp. 418, 419, 422, and 423

ESPOSITO-HIDLER V. SFX BROADCASTING (New York Supreme Court, Appellate Div. 1997) pp. 424-425

ROACH V. STERN (New York Supreme Court, Appellate Div. 1998) p. 426

SNYDER (ARGUED BEFORE THE SUPREME COURT IN OCTOBER)