Privacy in recent years has become an extension of libel in a sense. Privacy takes up where libel leaves off, establishing conditions for suits that would be foreclosed by libel precedents.
Not that many cases have been decided on privacy issues, but lawyers and scholars have been writing about and talking about privacy to such an extent that it is finding a place in media law.
Traditionally privacy dealt more with the right to be left alone by anybody, particularly by government agencies that would impose their power in violation of Fourth Amendment guarantees.
Discussion of centralized information handled through computers, data bands and dossiers—including information obtained for credit ratings and employment application—has brought the question of the right of privacy into even newer areas.
Privacy, therefore, exists as a general constitutional right and is the kind of right that media people are interested in because of the news value of intrusions—bugging, data collection and government monitoring of individuals.
Time v. Hill
The main U.S. Supreme Court case on privacy as it relates to the media was Time, Inc. v. Hill, 87 S. Ct. 534 (1967), a case decided in the media’s favor.
In this case the Hill family sued when Life magazine ran a story relating their true-life experiences as hostages of three escaped convicts to a book and Broadway play about the same kind of incident. The book and play showed the experience to be more violent than the Hill’s. Their suit contended that the Life story indicating the play was a mirror of the family’s experience “was false and untrue.”
The various decisions by the Supreme Court in the case applied to privacy The New York Times test for malice, that is, knowing falsity, and anticipated Rosenbloom on private citizens thrust into the news.
The main opinion said proof must be presented of falsity or reckless disregard of the truth to warrant compensation. But one justice added the idea of “a private person catapulted into the news by events over which he had no control.”
The falsity test turns out to be the main application in a ruling in late 1974 by the Supreme Court in Cantrell v. Forest City Publishing Co. (Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465) The court found a story in the Cleveland Plain Dealer left the impression an interview had taken place when it had not.
Interestingly, in the Cantrell case the court let stand the judge’s instruction of common law malice: “ill will or reckless or wanton disregard of plaintiff’s rights.”
Less than three months later the court in 1975 ruled in Cox Broadcasting v. Cohn that the right of privacy could not be extended to the reporting of information gathered from official, public reports.
The case involved the use by WSB-TV in Atlanta of the name of a rape victim during a trial of a defendant. Reporting the names of rape victims was, under Georgia law, a misdemeanor.
As these cases illustrate, the right of privacy is broad and not simple. To illustrate this, the four-test rule has found wide support. It includes:
1.Intrusion upon one’s seclusion or solitude or into that person’s private affairs,
2.Public disclosure of embarrassing private facts about a person,
3.Publicity that places a person in a false light in the public eye and
4.Appropriation of a person’s name or likeness for the advantage of another.
Of the four, only one, the false light test, has received sanction through a case (Cantrell v. Forest City Publishing Co.) before the U.S. Supreme Court.
In Texas, the right of privacy was established by Billings v. Atkinson, 489 SW 2d 858 (1973), a wiretapping case decided by the Texas Supreme Court. The opinion in the case said that “an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted.”
Specific areas that require attention by the news media fall under the four-test approach.
For example, the unjustified use of pictures and stories could be a violation, especially the use of a picture for promotion or advertising. Consent is necessary and legally a written release is required.
So far the courts seem to uphold media when the newsworthiness of publication can be proved. The test has even been extended in one case to uphold publication of a picture of an unsuspecting person appearing with an article in a national magazine. But this type of situation remains primarily uncharted.
A remaining area of concern is the example of referring to the criminal record of a private individual now leading an exemplary life. Cases have been brought to this point, but no definite decision has been made.
The Privacy Act
Concern for protection of privacy resulted in the enactment by Congress of the Privacy Act of 1974. The law requires most federal agencies to permit any citizen to examine whatever files the agencies may have on him or her. Except for agencies or records specifically exempted, the citizens can challenge information, insert correction and hold agencies legally accountable for misuse of the records. It went into effect in 1975.