Comprehensive Law Examination on Privacy
Journalists want to be trusted and respected by the public. Lines are drawn either culturally or individually aimed to steer a journalist in the right direction when faced with a difficult decision. The issue of privacy and how it relates to law and ethics is one major dilemma the media deals with on a consistent basis. The public has rights granted to them by the Bill of Rights and supplemental amendments. Among these inalienable rights is the right to privacy, specifically the right to private facts.
Journalists need to recognize the legality of privacy and the rights the public has pertaining to its application. The definition of private facts states the following: “The publication of private information that would be highly offensive to a reasonable person and is not a matter public concern.” When looking at a privacy case the court will take many details into consideration.
First, was the information promulgated? Privacy laws differ from libel when proving publication. In libel laws, the plaintiff must prove a third party was privy to the information. In privacy cases, however, “publication” means “publicity.” The plaintiff must show that the information was placed in one or more media outlets reaching large numbers of people. This would involve private facts appearing in newspapers, magazines, books, databases or bulk e-mails.
Second, are the private facts actually private? The court will look at a few different defenses pertaining to what is and what is not considered private. First, was there consent? A person cannot give the news media information and later claim they invaded their privacy when the given information is printed or broadcasted. The reporter needs to be cautious in this situation. When interviewing an individual who begins to divulge personal information, the journalist needs to confirm that consent is given. Also, consent must come from the person who is the topic of the information; or, in the case of minors, from the legal guardian or individual who has legal responsibility. Journalists should try to get written consent or recorded audio consent to ensure that no future reproductions will ensue. Fortunately, legal consent can not be withdrawn. However, in the case of minors whose parents or legal guardians later withdraw their consent, it would behoove journalists not to take chances and drop any information that would incriminate or discredit them as responsible reporters.
The case of Cohen v Crowles Media took consent a step further. In the 1982 Minnesota gubernatorial race a political informant gave a journalist information concerning a candidate with the promise that their name would not be printed. Later, the information with the informant’s name was printed. Thereafter, the informant was fired. Subsequently the informant sued for breach of contract. The case reached the United States Supreme Court who ruled,
“The First Amendment does not forbid the application of such a generally applicable law to the press. The application of such a law, under the circumstances presented, would not punish the newspapers for publishing truthful information that was lawfully obtained, since the parties themselves determined the scope of their legal obligations, and any restrictions that were placed on the publication of truthful information were self-imposed by the newspapers.” (Cohen v Cowles Media, 1991)
Members of the public understand that when they talk to a member of the media anything that they say is subject to publication. Hence, reporters need to identify themselves as a disclaimer.
The court determines whether or not information is private by also taking into account where the information was obtained. Usually what happens in public or is available to the public is not considered private. In Cox Broadcasting Co. v. Cohn The Supreme Court stated that,
“The protection of freedom of the press under the First and Fourteenth Amendments barred the state from making the defendants' television broadcasts the basis of civil liability when there was no contention that the rape victim's name had been obtained in an improper fashion or that it was not on an official court document open to public inspection.” (Cox Broadcasting Comp. v. Cohn, 1975)
This case is important in that the court ruled that the press cannot be held accountable for invasion of privacy if the facts were obtained from public records. This case involved a deceased rape victim whose name was broadcast on television. The victim’s father sued, but lost since the reporter legally obtained the information from official court records, which are open to the public.
In Green v. CBS, another similar case, the Greens took CBS to court for airing ostensibly private facts about their sexually abused daughter in their show “Lotto Town.” The Court of Appeals for the Fifth Circuit said, “the sexual abuse allegation was discussed in open court during Lance and Mitzi’s (Green) divorce proceedings. Texas law is clear that ‘once information is part of a public record, there can be no liability for publicizing it.’ Thus, because these facts were not private, they are not actionable.” (Green v. CBS, 2002)
Likewise, people can not claim privacy if they are in a public place. Individuals who are at a rally, involved in a car accident, or at a sporting event, can not claim privacy if they are put on television or in the paper.
However, there are exceptions to this rule when the promulgation of one’s name would conflict with or obstruct justice. In 1998 Times Mirror Co. v. San Diego Superior Court was argued. A woman was witness to a murder and her name was placed in the newspaper. As the only witness and the murderer not yet apprehended, she sued for invasion of privacy since this had the potential of endangering her life. The Court of Appeals of California, ruled that, “where the printing of a witness's name could have subjected her to an increased risk of harm, since the criminal was still at large, and where the state had an interest in investigating crimes and protecting witnesses, the First Amendment provided no absolute protection against liability.” (Times Mirror Comp. v. San Diego Superior Court.)
Lastly, concerning private information, an individual can not sue citing invasion of privacy for information that is already widely known. Oliver Sipple, a San Francisco native, personally stopped an assassination attempt against President Ford. Later, two newspapers ran stories disclosing his homosexuality. He took them to court for invasion of privacy. The court held that the plaintiff’s sexuality was not only newsworthy, but made well known by the plaintiff in certain circles. Summary judgment was granted throwing the case out.
After ruling on whether or not the facts were publicized and private, the court determines the offensiveness of the information. How offensive information is to the plaintiff seemingly gets handled on an ad hoc basis by the courts. A 1940’s case involving child prodigy William Sidis ruled that highly offensive information is that which would “outrage the community’s notions of decency.” (Sidis v. F-R Pub. Corp., 1940) Later, in 1975 the United States Court of Appeals for the Ninth Circuit ruled that offensiveness has no news value.
Issues of public concern or newsworthiness are also taken into account when ruling on the offensiveness of material. This may be the most difficult part of a plaintiff’s case. Most times if something is in the news, then that event is in the public eye and therefore in the public’s concern. This is evident in the case of Hilda Bridges. This Floridian was kidnapped and made to strip naked insuring she would not escape. After a standoff with police Bridges ran out of the house with only a small towel in which to conceal herself. A newspaper ran a picture of her running and she sued for privacy. She lost since the standoff with police and her kidnapping was on the news, and became a matter of public concern. The aforementioned case involving Sipple would apply here as well. Sipple lost his case both because his homosexuality was widely known and his actions had become newsworthy. In Tyne v. Warner Entm’t Co., L.P. the plaintiff brought to court a case involving the movie, The Perfect Storm. The Perfect Storm was based on real events that involved the plaintiffs’ husbands. Tyne sued for invasion of privacy based on public disclosure of private facts. The defendants were granted summary judgment, however, the United States District Court for the Middle District of Florida still discussed this issue. The court surprisingly stated that the issue of public interest and newsworthiness was not viable because this was not done in the press. It was assumed that the protections granted to the news media would apply across the board to other aspects of the institution; apparently not. Also in a related case, a girl in Florida filed an invasion of privacy suit after footage of parts of her attempted suicide thwarting by police was aired on “Cops”. A Federal District Judge rules she had no right to sue because she called the cops on herself and by doing so the event became newsworthy.
Newsworthiness can also be defined as any aberration. In Virgil v. Sports Illustrated, Michael Virgil was profiled as a great surfer who habitually engaged in odd acts like eating bugs and self mutilation. He sued, but the Ninth U.S. Cirtuit Court said the information, although maybe embarrassing, was newsworthy and appropriate.
When it comes to celebrities almost anything goes. The California Supreme Court said it best in Forsher v. Bugliosi that, “once a man becomes a public figure, or news, he remains a matter of legitimate recall in the public’s mind until the end of his days.” (Forsher v. Bugliosi, 1980) Celebrity actions alone are considered newsworthy. Hence, political figures are criticized and ridiculed constantly by the media before, during and after their terms in office. The Society of Professional Journalists says concerning private and public figures; “Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention.” (Code of Ethics, 1996)
In conclusion, when an individual sues for invasion of privacy citing embarrassing private facts, that individual must prove the damaging information was publicized, private, and offensive. Proving invasion of privacy in this tort tends to be difficult with rare success due to the number of defenses available. For the defense to win such a suit they have to show there was either consent on the part of the plaintiff, that the event and information was newsworthy and a matter of public interest, it was not offensive, or the information is available to the public. High profile public figures have few options when their privacy is invaded. Private sexual assault victims and incidental celebrities demand more consideration and concern, but are basically at the mercy of the newsroom. Their privacy then becomes a matter of journalistic ethics.
The dilemma of privacy and how it relates to private people and celebrities alike is not only a legal issue, but also an ethical one. The courts have stated that speaking irresponsibly is protected. But, one who is irresponsible tends to lose their credibility. While no set of rules exists governing ethics it is as prevalent in journalism as any law. Rather, ethics is a systematic approach towards a decision guided by morals, values, and principles. A fine example of this is honoring confidential sources. There is no law saying that reporters must, but people have to trust the profession; bridges can not be burned.
The Society of Professional Journalists’ “Code of Ethics” provides great tips when deciding what private details to print. Under the subheading “Minimize Harm” the code states the following; “Pursuit of the news is not a license for arrogance. Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief. Use special sensitivity with children and inexperienced sources. Only an overriding public need can justify intrusion into anyone’s privacy. Show good taste.” (Code of Ethics, 1996)
The ethical/legal issue that must be distinguished is that of rape and sexual assault victims. This manifested itself in the case of William Kennedy Smith. Smith met a young lady at a bar after which she claimed he raped her. The day he was charged with the crime the story ran in the media. NBC identified the girl as Patricia Bowman in a broadcast that portrayed Bowman as the criminal and Smith as the victim. The New York Times followed suit and along with NBC took a lot of heat for publicizing the victim’s name.
Sexual assault victims usually keep their anonymity via the Rape Shield Law which was created to encourage rape victims to take action without the fear of the media. While some courts have stood by Rape Shield Laws, others have called it unconstitutional. The Florida Law says,
“No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. An offense under this section shall constitute a misdemeanor.” (State v. Globe Commun. Corp., 1994)
In Smith’s trial the Florida Supreme Court stated that the Rape Shield Law was unconstitutional saying, “The newspaper had obtained the victim's name from a publicly-released police report. The Florida Star could not be subjected to civil liability under the section for publishing truthful information that had been lawfully obtained.” (State . Glove Commun. Corp., 1994) Moreover the Supreme Court of the United States issued this ruling in Bartnicki v. Vopper; “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." (Bartnicki v. Vopper, 2001)
In the Smith case the Florida Court used an earlier ruling from the United States Supreme Court that said the following concerning the publication of rape victims names and the Florida Rape Shield Law:"
The news article contained lawfully-obtained, truthful information about a matter of public significance, and imposing liability under the circumstances was not a narrowly tailored means of furthering state interests in maintaining the privacy and safety of sexual assault victims or encouraging such victims to report the offenses. The statute was facially under-inclusive in that it did not prohibit the spread of a victim's identity by means other than publication in an instrument of mass communication.” (The Florida Star v. B.J.F., 1989)
Involving ethics, Ross v. Midwest Communications said, “Rape Victim’s names and identity are private facts only when reviewing a rape charge.” (Ross v Midwest Communications, 1989)
Disclosing the name of a rape or sexual assault victim ostensibly is determined by the media. The media’s main concern is to keep the trust and support of the public. In doing so, most media outlets frown upon promulgating the names of private victims. The accused, however, especially in the case of a person with celebrity, is widely publicized and sometimes sensationalized.
The same is true for Juror Shield Laws. Ideally the anonymity of jurors is essential for a fair trial. But, if the media obtains the information legally, it can be published with legal impunity. However, in the interest of maintaining audience trust and support the news media tends not to disclose such information.
There are steps and procedures that journalist can take to ensure that the longevity of their careers will not be littered with ethical miscues and tainted by public scrutiny. One precaution journalists could take when working their way through ethical dilemmas is to consider the Potter Box. Harvard Professor Ralph Potter designed the Potter Box to guide journalists through ethical indecisiveness. There are four sequential boxes, numbered one through four, that do not force journalists into making decisions; it just helps them understand their dilemma. The first box asks the reporter to “define the situation.” Try to look at the situation from as many viewpoints as possible. The second box says to “identify the values.” These are the values and morals that you stand for as a reporter and a person. These values shape our behavior, relationships, self-worth, happiness and so on. The next step is to “identify your principles”. Use your age and experiences to guide your actions. This section also deals with philosophical principles, such as; Aristotle’s Golden Mean which says, “we can’t afford to be too sensational, we’ll lose respect. Also we can’t be too dry and full of facts. There’s a happy medium.” Emanual Kant’s Categorical Imperative which states, “we are going to treat everyone the same as we would like to be treated.” And John Steward Mills’ Utilitariansim which says, “do the greatest good for the greatest number of people with the least harm.” If reporters follow these philosophical principles ethical decisions will be much easier to make. The fourth box is “chose your loyalties.” Who are you loyal to? Who do your actions benefit, who do they hurt? These steps will help guide reporters through ethical issues. Remember, if you do not reach a decision the first time through, try again.
Another guideline for helping reporters is to know your rights as they pertain to privacy. This has to be the best advice anyone can give a journalist. Knowing your rights and privileges will result in better reporting and more entertaining and informative pieces. Concerning the privacy fact tort, know the four defenses (consent, newsworthiness, public record and inoffensiveness). By doing this you will know whether or not you can legally publish material (or acquire it). Also, be familiar with landmark court cases and brush up on recent legislation that may affect your rights as a reporter. Laws and rules are changing all the time. You do not want to be victim of legal negligence.
Do the right thing by following your instincts. People have a conscience that guides them ethically on what is right and what is wrong. However, some choose not to listen. Put yourself in the position of the person who you are writing about. As you type the article ask yourself what private information you would omit or submit if the piece was about you or a family member. If you are doing a story on a child, imagine that child is yours. If you are doing a story on an older woman, think of your mother. Because the truth is, she is probably someone’s mother. The polls show that people in this country trust the news media less and less as time passes. The polls do not say the public does not trust any one particular reporter, it says they do not trust the industry. Be that journalist that everyone watches, reads, or listens to for objective and trustworthy reporting. This author firmly believes that 99 percent of the population knows what is right and what is wrong. As we get older and more experienced this asseveration is only evinced. Sadly, many of us are corrupted and steered away from our integrity by money and power. Don’t fall prey to this disease. Maintain your honesty, your integrity and your journalistic brio simultaneously.
Learn from the best. There are great news veterans in the world today, or who educated the world of yesterday, which should be used as journalistic tools to novice, intermediate and expert reporters alike. Whatever company you work for, find the employee who is most respected, admired, and trusted by his or her peers. Find out what decisions they made in their life, either beneficial of destructive. If you find yourself in an ethical pinch do not be afraid to ask older or even younger co-workers for advice. No matter what circumstance you may find yourself, privacy-related or not, be assured that it is not the first time it has ever happened. Reporters who have been in the business 30 or 40 years have seen it all, and if they haven’t seen it all they have heard of it all. Take advantage of their experience, and when the time comes to pass that experience on to a younger inquirer, please return the favor.
The final bit of advice this author can give an aspiring or current reporter is to not be afraid. If there is anything you can learn from sports it is that passive, timid and fearful athletes finish last. Take that mentality into the news room. Don’t be afraid to ask the hard questions that get the great answers. Don’t be afraid to go the extra mile to obtain information no one else has. You will never find yourself in a precarious situation involving private information if you never obtain any. Having to make a decision on whether or not to publicize a great private fact no one else has is like having to choose between the purchase of a Porsche or Corvette. It may be a tough decision, but it is a great one to make.
Cases Cited
1. Cohen v Cowles Media, 90-634, THE SUPREME COURT OF THE UNITED STATES, 501 U.S. 663; 111 S. Ct. 2513; 115 L. Ed. 2d 586; 1991 U.S. LEXIS 3639; 59 U.S.L.W. 4773; 18 Media L. Rep. 2273; 91 Cal. Daily Op. Service 4796; 91 Daily Journal DAR 7417, June 24, 1991, Decided
2. Cox Broadcasting Co. v Cohn, 73-938, THE SUPREME COURT OF THE UNITED STATES, 420 U.S. 469; 95 S. Ct. 1029; 43 L. Ed. 2d 328; 1975 U.S. LEXIS 139; 32 Rad. Reg. 2d (P & F) 1511; 1 Media L. Rep. 1819, March 3, 1975, Decided
3. Times Mirror Co. v. San Diego Superior Court, D005584, Court of Appeal of California, Fourth Appellate District, Division One, 198 Cal. App. 3d 1420; 244 Cal. Rptr. 556; 1988 Cal. App. LEXIS 144; 15 Media L. Rep. 1129, February 26, 1988, Decided
4. Sidis v. F-R- Pub. Corporation, 400, United States Court of Appeals for he Second Circuit, 113 F.2d 806; 1940 U.S. App. LEXIS 3463; 138 A.L.R. 15; 1 Media L. Rep. 1775, July 22, 1940, Decided
5. Forsher v. Bugliosi, 24062, Supreme Court of California,
26 Cal. 3d 792; 608 P.2d 716; 163 Cal. Rptr. 628; 1980 Cal. LEXIS 158; 6 Media L. Rep. 1097, April 10, 1980, Decided
6. Code of Ethics, Society of Professional Journalists, 1996.
7. Green v CBS, 01-10151, United States Court of Appeals for the Fifth Circuit, 286 F.3d 281; 2002 U.S. App. LEXIS 5966; 30 Media L. Rep. 1701, April 3, 2002, Decided
8. Globe v Globe Commun. Corp., 82-337, Supreme Court of Florida,
648 So. 2d 110; 1994 Fla. LEXIS 1871; 40 A.L.R.5th 917; 23 Media L. Rep. 1116; 19 Fla. L. Weekly S 645, December 8, 1994, Decided
9. The Florida Star v. B.J. F., 87-329, Supreme Court of the United States, 491 U.S. 524; 109 S. Ct. 2603; 105 L. Ed. 2d 443; 1989 U.S. LEXIS 3120; 57 U.S.L.W. 4816; 16 Media L. Rep. 1801, June 21, 1989, Decided
10. Ross v. Midwest Communications, 88-2105, United States Court of Appeals for the Fifth Circuit, 870 F.2d 271; 1989 U.S. App. LEXIS 4446; 16 Media L. Rep. 1463, March 31, 1989.
11. BARTNICKI ET AL. v. VOPPER, AKA WILLIAMS, ET AL., 99-1687 and 99-1728, 532 U.S. 514; 121 S. Ct. 1753; 149 L. Ed. 2d 787; 2001 U.S. LEXIS 3815; 69 U.S.L.W. 4323; 143 Lab. Cas. (CCH) P59,221; 167 L.R.R.M. 2199; 29 Media L. Rep. 1737; 2001 Cal. Daily Op. Service 4037; 2001 Daily Journal DAR 4961; 2001 Colo. J. C.A.R. 2488; 14 Fla. L. Weekly Fed. S 254, May 21, 2001, Decided
Journalists need to recognize the legality of privacy and the rights the public has pertaining to its application. The definition of private facts states the following: “The publication of private information that would be highly offensive to a reasonable person and is not a matter public concern.” When looking at a privacy case the court will take many details into consideration.
First, was the information promulgated? Privacy laws differ from libel when proving publication. In libel laws, the plaintiff must prove a third party was privy to the information. In privacy cases, however, “publication” means “publicity.” The plaintiff must show that the information was placed in one or more media outlets reaching large numbers of people. This would involve private facts appearing in newspapers, magazines, books, databases or bulk e-mails.
Second, are the private facts actually private? The court will look at a few different defenses pertaining to what is and what is not considered private. First, was there consent? A person cannot give the news media information and later claim they invaded their privacy when the given information is printed or broadcasted. The reporter needs to be cautious in this situation. When interviewing an individual who begins to divulge personal information, the journalist needs to confirm that consent is given. Also, consent must come from the person who is the topic of the information; or, in the case of minors, from the legal guardian or individual who has legal responsibility. Journalists should try to get written consent or recorded audio consent to ensure that no future reproductions will ensue. Fortunately, legal consent can not be withdrawn. However, in the case of minors whose parents or legal guardians later withdraw their consent, it would behoove journalists not to take chances and drop any information that would incriminate or discredit them as responsible reporters.
The case of Cohen v Crowles Media took consent a step further. In the 1982 Minnesota gubernatorial race a political informant gave a journalist information concerning a candidate with the promise that their name would not be printed. Later, the information with the informant’s name was printed. Thereafter, the informant was fired. Subsequently the informant sued for breach of contract. The case reached the United States Supreme Court who ruled,
“The First Amendment does not forbid the application of such a generally applicable law to the press. The application of such a law, under the circumstances presented, would not punish the newspapers for publishing truthful information that was lawfully obtained, since the parties themselves determined the scope of their legal obligations, and any restrictions that were placed on the publication of truthful information were self-imposed by the newspapers.” (Cohen v Cowles Media, 1991)
Members of the public understand that when they talk to a member of the media anything that they say is subject to publication. Hence, reporters need to identify themselves as a disclaimer.
The court determines whether or not information is private by also taking into account where the information was obtained. Usually what happens in public or is available to the public is not considered private. In Cox Broadcasting Co. v. Cohn The Supreme Court stated that,
“The protection of freedom of the press under the First and Fourteenth Amendments barred the state from making the defendants' television broadcasts the basis of civil liability when there was no contention that the rape victim's name had been obtained in an improper fashion or that it was not on an official court document open to public inspection.” (Cox Broadcasting Comp. v. Cohn, 1975)
This case is important in that the court ruled that the press cannot be held accountable for invasion of privacy if the facts were obtained from public records. This case involved a deceased rape victim whose name was broadcast on television. The victim’s father sued, but lost since the reporter legally obtained the information from official court records, which are open to the public.
In Green v. CBS, another similar case, the Greens took CBS to court for airing ostensibly private facts about their sexually abused daughter in their show “Lotto Town.” The Court of Appeals for the Fifth Circuit said, “the sexual abuse allegation was discussed in open court during Lance and Mitzi’s (Green) divorce proceedings. Texas law is clear that ‘once information is part of a public record, there can be no liability for publicizing it.’ Thus, because these facts were not private, they are not actionable.” (Green v. CBS, 2002)
Likewise, people can not claim privacy if they are in a public place. Individuals who are at a rally, involved in a car accident, or at a sporting event, can not claim privacy if they are put on television or in the paper.
However, there are exceptions to this rule when the promulgation of one’s name would conflict with or obstruct justice. In 1998 Times Mirror Co. v. San Diego Superior Court was argued. A woman was witness to a murder and her name was placed in the newspaper. As the only witness and the murderer not yet apprehended, she sued for invasion of privacy since this had the potential of endangering her life. The Court of Appeals of California, ruled that, “where the printing of a witness's name could have subjected her to an increased risk of harm, since the criminal was still at large, and where the state had an interest in investigating crimes and protecting witnesses, the First Amendment provided no absolute protection against liability.” (Times Mirror Comp. v. San Diego Superior Court.)
Lastly, concerning private information, an individual can not sue citing invasion of privacy for information that is already widely known. Oliver Sipple, a San Francisco native, personally stopped an assassination attempt against President Ford. Later, two newspapers ran stories disclosing his homosexuality. He took them to court for invasion of privacy. The court held that the plaintiff’s sexuality was not only newsworthy, but made well known by the plaintiff in certain circles. Summary judgment was granted throwing the case out.
After ruling on whether or not the facts were publicized and private, the court determines the offensiveness of the information. How offensive information is to the plaintiff seemingly gets handled on an ad hoc basis by the courts. A 1940’s case involving child prodigy William Sidis ruled that highly offensive information is that which would “outrage the community’s notions of decency.” (Sidis v. F-R Pub. Corp., 1940) Later, in 1975 the United States Court of Appeals for the Ninth Circuit ruled that offensiveness has no news value.
Issues of public concern or newsworthiness are also taken into account when ruling on the offensiveness of material. This may be the most difficult part of a plaintiff’s case. Most times if something is in the news, then that event is in the public eye and therefore in the public’s concern. This is evident in the case of Hilda Bridges. This Floridian was kidnapped and made to strip naked insuring she would not escape. After a standoff with police Bridges ran out of the house with only a small towel in which to conceal herself. A newspaper ran a picture of her running and she sued for privacy. She lost since the standoff with police and her kidnapping was on the news, and became a matter of public concern. The aforementioned case involving Sipple would apply here as well. Sipple lost his case both because his homosexuality was widely known and his actions had become newsworthy. In Tyne v. Warner Entm’t Co., L.P. the plaintiff brought to court a case involving the movie, The Perfect Storm. The Perfect Storm was based on real events that involved the plaintiffs’ husbands. Tyne sued for invasion of privacy based on public disclosure of private facts. The defendants were granted summary judgment, however, the United States District Court for the Middle District of Florida still discussed this issue. The court surprisingly stated that the issue of public interest and newsworthiness was not viable because this was not done in the press. It was assumed that the protections granted to the news media would apply across the board to other aspects of the institution; apparently not. Also in a related case, a girl in Florida filed an invasion of privacy suit after footage of parts of her attempted suicide thwarting by police was aired on “Cops”. A Federal District Judge rules she had no right to sue because she called the cops on herself and by doing so the event became newsworthy.
Newsworthiness can also be defined as any aberration. In Virgil v. Sports Illustrated, Michael Virgil was profiled as a great surfer who habitually engaged in odd acts like eating bugs and self mutilation. He sued, but the Ninth U.S. Cirtuit Court said the information, although maybe embarrassing, was newsworthy and appropriate.
When it comes to celebrities almost anything goes. The California Supreme Court said it best in Forsher v. Bugliosi that, “once a man becomes a public figure, or news, he remains a matter of legitimate recall in the public’s mind until the end of his days.” (Forsher v. Bugliosi, 1980) Celebrity actions alone are considered newsworthy. Hence, political figures are criticized and ridiculed constantly by the media before, during and after their terms in office. The Society of Professional Journalists says concerning private and public figures; “Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention.” (Code of Ethics, 1996)
In conclusion, when an individual sues for invasion of privacy citing embarrassing private facts, that individual must prove the damaging information was publicized, private, and offensive. Proving invasion of privacy in this tort tends to be difficult with rare success due to the number of defenses available. For the defense to win such a suit they have to show there was either consent on the part of the plaintiff, that the event and information was newsworthy and a matter of public interest, it was not offensive, or the information is available to the public. High profile public figures have few options when their privacy is invaded. Private sexual assault victims and incidental celebrities demand more consideration and concern, but are basically at the mercy of the newsroom. Their privacy then becomes a matter of journalistic ethics.
The dilemma of privacy and how it relates to private people and celebrities alike is not only a legal issue, but also an ethical one. The courts have stated that speaking irresponsibly is protected. But, one who is irresponsible tends to lose their credibility. While no set of rules exists governing ethics it is as prevalent in journalism as any law. Rather, ethics is a systematic approach towards a decision guided by morals, values, and principles. A fine example of this is honoring confidential sources. There is no law saying that reporters must, but people have to trust the profession; bridges can not be burned.
The Society of Professional Journalists’ “Code of Ethics” provides great tips when deciding what private details to print. Under the subheading “Minimize Harm” the code states the following; “Pursuit of the news is not a license for arrogance. Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief. Use special sensitivity with children and inexperienced sources. Only an overriding public need can justify intrusion into anyone’s privacy. Show good taste.” (Code of Ethics, 1996)
The ethical/legal issue that must be distinguished is that of rape and sexual assault victims. This manifested itself in the case of William Kennedy Smith. Smith met a young lady at a bar after which she claimed he raped her. The day he was charged with the crime the story ran in the media. NBC identified the girl as Patricia Bowman in a broadcast that portrayed Bowman as the criminal and Smith as the victim. The New York Times followed suit and along with NBC took a lot of heat for publicizing the victim’s name.
Sexual assault victims usually keep their anonymity via the Rape Shield Law which was created to encourage rape victims to take action without the fear of the media. While some courts have stood by Rape Shield Laws, others have called it unconstitutional. The Florida Law says,
“No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter. An offense under this section shall constitute a misdemeanor.” (State v. Globe Commun. Corp., 1994)
In Smith’s trial the Florida Supreme Court stated that the Rape Shield Law was unconstitutional saying, “The newspaper had obtained the victim's name from a publicly-released police report. The Florida Star could not be subjected to civil liability under the section for publishing truthful information that had been lawfully obtained.” (State . Glove Commun. Corp., 1994) Moreover the Supreme Court of the United States issued this ruling in Bartnicki v. Vopper; “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." (Bartnicki v. Vopper, 2001)
In the Smith case the Florida Court used an earlier ruling from the United States Supreme Court that said the following concerning the publication of rape victims names and the Florida Rape Shield Law:"
The news article contained lawfully-obtained, truthful information about a matter of public significance, and imposing liability under the circumstances was not a narrowly tailored means of furthering state interests in maintaining the privacy and safety of sexual assault victims or encouraging such victims to report the offenses. The statute was facially under-inclusive in that it did not prohibit the spread of a victim's identity by means other than publication in an instrument of mass communication.” (The Florida Star v. B.J.F., 1989)
Involving ethics, Ross v. Midwest Communications said, “Rape Victim’s names and identity are private facts only when reviewing a rape charge.” (Ross v Midwest Communications, 1989)
Disclosing the name of a rape or sexual assault victim ostensibly is determined by the media. The media’s main concern is to keep the trust and support of the public. In doing so, most media outlets frown upon promulgating the names of private victims. The accused, however, especially in the case of a person with celebrity, is widely publicized and sometimes sensationalized.
The same is true for Juror Shield Laws. Ideally the anonymity of jurors is essential for a fair trial. But, if the media obtains the information legally, it can be published with legal impunity. However, in the interest of maintaining audience trust and support the news media tends not to disclose such information.
There are steps and procedures that journalist can take to ensure that the longevity of their careers will not be littered with ethical miscues and tainted by public scrutiny. One precaution journalists could take when working their way through ethical dilemmas is to consider the Potter Box. Harvard Professor Ralph Potter designed the Potter Box to guide journalists through ethical indecisiveness. There are four sequential boxes, numbered one through four, that do not force journalists into making decisions; it just helps them understand their dilemma. The first box asks the reporter to “define the situation.” Try to look at the situation from as many viewpoints as possible. The second box says to “identify the values.” These are the values and morals that you stand for as a reporter and a person. These values shape our behavior, relationships, self-worth, happiness and so on. The next step is to “identify your principles”. Use your age and experiences to guide your actions. This section also deals with philosophical principles, such as; Aristotle’s Golden Mean which says, “we can’t afford to be too sensational, we’ll lose respect. Also we can’t be too dry and full of facts. There’s a happy medium.” Emanual Kant’s Categorical Imperative which states, “we are going to treat everyone the same as we would like to be treated.” And John Steward Mills’ Utilitariansim which says, “do the greatest good for the greatest number of people with the least harm.” If reporters follow these philosophical principles ethical decisions will be much easier to make. The fourth box is “chose your loyalties.” Who are you loyal to? Who do your actions benefit, who do they hurt? These steps will help guide reporters through ethical issues. Remember, if you do not reach a decision the first time through, try again.
Another guideline for helping reporters is to know your rights as they pertain to privacy. This has to be the best advice anyone can give a journalist. Knowing your rights and privileges will result in better reporting and more entertaining and informative pieces. Concerning the privacy fact tort, know the four defenses (consent, newsworthiness, public record and inoffensiveness). By doing this you will know whether or not you can legally publish material (or acquire it). Also, be familiar with landmark court cases and brush up on recent legislation that may affect your rights as a reporter. Laws and rules are changing all the time. You do not want to be victim of legal negligence.
Do the right thing by following your instincts. People have a conscience that guides them ethically on what is right and what is wrong. However, some choose not to listen. Put yourself in the position of the person who you are writing about. As you type the article ask yourself what private information you would omit or submit if the piece was about you or a family member. If you are doing a story on a child, imagine that child is yours. If you are doing a story on an older woman, think of your mother. Because the truth is, she is probably someone’s mother. The polls show that people in this country trust the news media less and less as time passes. The polls do not say the public does not trust any one particular reporter, it says they do not trust the industry. Be that journalist that everyone watches, reads, or listens to for objective and trustworthy reporting. This author firmly believes that 99 percent of the population knows what is right and what is wrong. As we get older and more experienced this asseveration is only evinced. Sadly, many of us are corrupted and steered away from our integrity by money and power. Don’t fall prey to this disease. Maintain your honesty, your integrity and your journalistic brio simultaneously.
Learn from the best. There are great news veterans in the world today, or who educated the world of yesterday, which should be used as journalistic tools to novice, intermediate and expert reporters alike. Whatever company you work for, find the employee who is most respected, admired, and trusted by his or her peers. Find out what decisions they made in their life, either beneficial of destructive. If you find yourself in an ethical pinch do not be afraid to ask older or even younger co-workers for advice. No matter what circumstance you may find yourself, privacy-related or not, be assured that it is not the first time it has ever happened. Reporters who have been in the business 30 or 40 years have seen it all, and if they haven’t seen it all they have heard of it all. Take advantage of their experience, and when the time comes to pass that experience on to a younger inquirer, please return the favor.
The final bit of advice this author can give an aspiring or current reporter is to not be afraid. If there is anything you can learn from sports it is that passive, timid and fearful athletes finish last. Take that mentality into the news room. Don’t be afraid to ask the hard questions that get the great answers. Don’t be afraid to go the extra mile to obtain information no one else has. You will never find yourself in a precarious situation involving private information if you never obtain any. Having to make a decision on whether or not to publicize a great private fact no one else has is like having to choose between the purchase of a Porsche or Corvette. It may be a tough decision, but it is a great one to make.
Cases Cited
1. Cohen v Cowles Media, 90-634, THE SUPREME COURT OF THE UNITED STATES, 501 U.S. 663; 111 S. Ct. 2513; 115 L. Ed. 2d 586; 1991 U.S. LEXIS 3639; 59 U.S.L.W. 4773; 18 Media L. Rep. 2273; 91 Cal. Daily Op. Service 4796; 91 Daily Journal DAR 7417, June 24, 1991, Decided
2. Cox Broadcasting Co. v Cohn, 73-938, THE SUPREME COURT OF THE UNITED STATES, 420 U.S. 469; 95 S. Ct. 1029; 43 L. Ed. 2d 328; 1975 U.S. LEXIS 139; 32 Rad. Reg. 2d (P & F) 1511; 1 Media L. Rep. 1819, March 3, 1975, Decided
3. Times Mirror Co. v. San Diego Superior Court, D005584, Court of Appeal of California, Fourth Appellate District, Division One, 198 Cal. App. 3d 1420; 244 Cal. Rptr. 556; 1988 Cal. App. LEXIS 144; 15 Media L. Rep. 1129, February 26, 1988, Decided
4. Sidis v. F-R- Pub. Corporation, 400, United States Court of Appeals for he Second Circuit, 113 F.2d 806; 1940 U.S. App. LEXIS 3463; 138 A.L.R. 15; 1 Media L. Rep. 1775, July 22, 1940, Decided
5. Forsher v. Bugliosi, 24062, Supreme Court of California,
26 Cal. 3d 792; 608 P.2d 716; 163 Cal. Rptr. 628; 1980 Cal. LEXIS 158; 6 Media L. Rep. 1097, April 10, 1980, Decided
6. Code of Ethics, Society of Professional Journalists, 1996.
7. Green v CBS, 01-10151, United States Court of Appeals for the Fifth Circuit, 286 F.3d 281; 2002 U.S. App. LEXIS 5966; 30 Media L. Rep. 1701, April 3, 2002, Decided
8. Globe v Globe Commun. Corp., 82-337, Supreme Court of Florida,
648 So. 2d 110; 1994 Fla. LEXIS 1871; 40 A.L.R.5th 917; 23 Media L. Rep. 1116; 19 Fla. L. Weekly S 645, December 8, 1994, Decided
9. The Florida Star v. B.J. F., 87-329, Supreme Court of the United States, 491 U.S. 524; 109 S. Ct. 2603; 105 L. Ed. 2d 443; 1989 U.S. LEXIS 3120; 57 U.S.L.W. 4816; 16 Media L. Rep. 1801, June 21, 1989, Decided
10. Ross v. Midwest Communications, 88-2105, United States Court of Appeals for the Fifth Circuit, 870 F.2d 271; 1989 U.S. App. LEXIS 4446; 16 Media L. Rep. 1463, March 31, 1989.
11. BARTNICKI ET AL. v. VOPPER, AKA WILLIAMS, ET AL., 99-1687 and 99-1728, 532 U.S. 514; 121 S. Ct. 1753; 149 L. Ed. 2d 787; 2001 U.S. LEXIS 3815; 69 U.S.L.W. 4323; 143 Lab. Cas. (CCH) P59,221; 167 L.R.R.M. 2199; 29 Media L. Rep. 1737; 2001 Cal. Daily Op. Service 4037; 2001 Daily Journal DAR 4961; 2001 Colo. J. C.A.R. 2488; 14 Fla. L. Weekly Fed. S 254, May 21, 2001, Decided
