Argument for Privacy

 

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by Kari Huske

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by Lauren Staley

To understand the right to privacy, one must understand the fundamental terms of tort law.  Taken from the Merriam-Webster dictionary these are terms are defined as:

Defamation- spoken or written words that falsely and negatively reflect on a living person's reputation. Slander and libel are two forms of defamation. 

Slander- spoken defamation.

Libel- a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression.

The hallmark of a defamation claim is harm to one's reputation. Former United States Supreme Court Justice Potter Stewart wrote in Rosenblatt vs. Baer (1966) that the essence of a defamation claim is the right to protect one's good name. According to Stewart, this tort "reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty."

Basic requirements of a defamation case

A defamation plaintiff must usually establish the following elements to recover: identification, defamatory, falsity, statements of fact and damages.  With identification, the plaintiff must show that the publication was "of and concerning" himself or herself; for publication, the plaintiff must show that the defamatory statements were disseminated to a third party. To claim defamatory meaning, the plaintiff must establish that the statements in question were defamatory. For example, the language must do more than simply annoy a person or hurt a person's feelings. To prove falsity, the statements must be false; truth is a defense to a defamation claim. Generally, the plaintiff bears the burden of proof of establishing falsity. In claiming statements of fact, the statements in question must be objectively verifiable as false statements of fact. In other words, the statements must be provable as false. Finally damages or actual injury must be a result of the false and defamatory statements. [1]

Defenses and privileges
There are numerous defenses and privileges to a defamation claim. Many of these vary from state to state. Sometimes, a particular party has carte blanche to make certain statements even if they are false. This is called an absolute privilege. Other privileges can be established as long as certain conditions are met. Some of the more common defenses and privileges include:

  • Truth or substantial truth: Truth is generally a complete defense. Many jurisdictions have adopted the substantial-truth doctrine, which protects a defamation defendant as long as the "gist" of the story is true.
  • Statements in judicial, legislative, and administrative proceedings: Defamatory statements made in these settings by participants are considered absolutely privileged. For example, a lawyer in a divorce case could not be sued for libel for comments he or she made during a court proceeding.
  • Fair report or fair comment: This privilege varies from jurisdiction to jurisdiction. Generally, it provides a measure of protection to a defendant who reports on the deliberations of a public body, such as a city council meeting.
  • Libel-proof plaintiffs: This defense holds that some plaintiffs have such lousy reputations that essentially they are libel-proof. The theory is that one cannot harm someone's reputation when that person already has a damaged reputation.
  • Rhetorical hyperbole: Some courts will hold that certain language in certain contents (editorial/opinion column) is understood by the readers to be figurative language not to be interpreted literally.
  • Retraction statutes: Nearly every state possesses a statute that allows a defamation defendant to retract, or take back, a libelous publication. Some of these statutes bar recovery, while others prevent the defendant from recovering so-called punitive damages. [2]

Narrowing Privacy Rights

Celebrities, public officials and private citizens involved in newsworthy incidences are all legally defined as public figures. Public figures actually have far fewer rights to privacy than an "ordinary person." Public figures break down into three types:

Public figure: A person who has achieved fame or notoriety or who has voluntarily become involved in a public controversy. A public figure (or public official) suing for defamation must prove that the defendant acted with actual malice.

Example: Movie stars like Sandra Bullock or Tom Cruise

All-purpose public figure: A person who achieves such pervasive fame or notoriety that he or she becomes a public figure for all purposes and in all contexts. For example, a person who occupies a position with great persuasive power and influence may become an all-purpose public figure, whether or not the person actively seeks attention.

Example: A businessman like Donald Trump or a politician like George W. Bush fall into this category.

Limited-purpose public figure: A person who, having become involved in a particular public issue, has achieved fame or notoriety only in relation to that particular issue. [3]

Specific Case Won Against the Paparazzi: 

Many suits have been brought up against the paparazzi by celebrities.  The freedom of the press upheld many in favor of the paparazzi, however there have been numerous instances when the media has overstepped its boundaries. 

Justin Timberlake sued the News of the World newspaper on libel charges.  Timberlake claimed that the story publish was untrue and claimed personal damages in the case.  After the newspaper rejected the request of lawyers to retract the story, they issued libel proceedings. The actor was successful in his case. [4]

Princess Caroline of Monaco, wife of Germany's Ernst August Prince of Hanover, sued several German publications when she felt that the paparazzi invaded her privacy by publishing photographs of her in her daily routine. She won her case against the tabloids at the European Court of Human Rights. It ruled that freedom of the press in Germany could not exploit the private lives of celebrities.  The court said the public has no legitimate interest in knowing where Caroline goes on her vacations or what she does in her private life.[5]

Specific Laws:

Specific laws concerning privacy are typically left to the sovereignty of the states. A bill was introduced into the California legislature after Princess Diana's death and has now been signed into law. The California Civil Code Section 1708.7-1708.8 seeks to protect people subject to media attention from offensive intrusion of privacy . It protects a person when one is engaging in personal or family activity and someone trespasses to obtain visual images or sound recordings in a way that would be offensive to a reasonable person. According to the new California privacy law, "Personal and family activity" is defined in the law and "includes, but is not limited to, intimate details of the plaintiff's personal life, interactions with the plaintiff's family or significant others, or other aspects of plaintiff's private affairs or concerns."  Anyone who violates this law is liable for three times the amount of general and special damages caused by the violation and may also be liable for punitive damages. If the violation was for commercial purposes, which are defined as "any act done with the expectation of a sale, financial gain, or other consideration," the violator may be required to pay any gains as additional damages. [6]



[1] “Real World Defamation Law.”  2003.  12 November 2004.  IPWatchdog.  <http://IPWatchdog.com/defamation.html>.

[2] Bivens, Emily. "Are You Gulity?".  1999. The Dabbling Mum.15 Nov. 2004. <http://thedabblingmum.com/writing/slander_libel.htm>.  

[3]Valdes, Robert. "How Paparazzi Work." Stuffo: How Stuff Works. 1998-2004.  HowStuffWorks, Inc. 4 Nov. 2004 < http://stuffo.howstuffworks.com/paparazzi.htm>.

[4]"Timberlake Wins Photographer Case." BBC News. July 28 2004. BBC News.Nov 20 2204. <http://news.bbc.co.uk/2/hi/entertainment/3932201.stm >.

[5]"Paparazzi Ruling Could Restrict German Tabloids." DW-World.DE. June 24 2004. Deutsche Welle. Nov. 10 2004. <http://www.dw-world.de/dw/article/0,,1245616,00.html>.

[6] Calfornia Civil Code Section 1708.7-1708.8.  Findlaw. 1994-2004. <http://caselaw.lp.findlaw.com/cacodes/civ/1708-1725.html>.