Photographers' Guide to Privacy

Photographers’ Guide to Privacy What every cameraman, photographer and videographer should know about invasion of privacy standards in the 50 states and D.C. Fall 2007 A primer on invasion of privacy The question of when the coverage and agrees that a news organization has omitted by reporting a misuse of taxpayer money. reporting of news becomes an invasion or played down facts that put a truthful state- (Harris v. City of Seattle, 152 Fed.Appx. 565 of privacy is a difficult one, especially for ment in its proper context. In 2003, a Florida (9th Cir. 2005)) photographers and videographers. jury awarded $18 million to Joe Anderson, The invasion of another’s privacy is a Reporting news stories in a way that the owner of a road-paving company who “tort,” meaning a civil wrong against another serves and informs the public will often entail sued over a Pensacola News Journal article that results in injury. publicizing facts or displaying images that that truthfully reported he had shot and A privacy tort occurs when a person or will embarrass or anger someone. killed his wife. However, the fact that an entity breaches the duty to leave another To make privacy matters even more diffi- investigation determined that the death was person alone. When journalists intrude on cult for journalists, courts constantly redefine a hunting accident was not mentioned until a person’s privacy and cause emotional or what is private based upon interpretations two sentences later, which Anderson said cre- monetary injury, they may be forced to pay of the elusive legal standard of a “reasonable ated a false impression that he murdered his damages. expectation of privacy.” wife. A midlevel appellate court overturned Each state has developed its own privacy The California Supreme Court held in the verdict in 2006, but the case is now on law, either through the common law, statutes, 1999 that even an employee who knows a appeal to the state supreme court. or both. The right to privacy is an evolving conversation in an open office space will The combination of a lack of clear defini- branch of the law, and in most jurisdictions be overheard by coworkers can pursue an tions of privacy standards and an acceptance many legal questions remain unsettled. invasion of privacy claim if that conversation of gradations of privacy puts journalists in a The tort of “invasion of privacy” is is recorded by a reporter’s hidden camera. dangerous position. distinct from the constitutional right to The court rejected the notion of privacy as Under different circumstances, however, privacy, which protects against invasions by an “all-or-nothing” concept and described courts find the news media are justified the government, although journalists who an “expectation of limited privacy.” (Sanders in doing what their subjects may feel is act jointly with government officials have v. American Broadcasting Cos., Inc., 978 P.2d invasive. been held to violate a person’s constitutional 67 (Cal. 1999)) A federal district court in Oklahoma privacy right. Journalists should also know The media can also be on the losing end dismissed a private facts claim when the that their conduct may lead to other tort of a multimillion-dollar verdict if a jury father of an Oklahoma Army National Guard claims, such as trespass or the intentional soldier killed in Iraq sued when photographs infliction of emotional distress. Photographers’ Guide to Privacy of his son’s open casket were published. The The First Amendment places some limits Fall 2007 court noted that the funeral was open to on the application of privacy law to the media. the public and the press and that the father It does not, however, immunize the media The Reporters Committee is grateful chose to have an open casket placed where completely. To avoid lawsuits, journalists to legal intern Jaci Boydston for her any attendee could walk up and see it. The must know how the law in their jurisdiction work in researching and updating U.S. Court of Appeals in Denver (10th Cir.) balances the competing interests of the press this guide. She built on the work of upheld the dismissal, finding that since the and the public against the privacy interests previous fellows and interns. soldier’s family members “opened up the of the subjects of reports. funeral scene to the public eye,” they could Courts have recognized four major © 2007 The Reporters Committee not assert any invasion of privacy claim. branches of privacy law: 1) unreasonable for Freedom of the Press. All rights (Showler v. Harper’s Magazine Foundation, intrusion upon seclusion; 2) unreasonable reserved. This material may not 222 Fed.Appx. 755 (10th Cir. 2007)) revelation of private facts; 3) unreasonably be reproduced without the written The U.S. Court of Appeals in San Fran- placing another person in a false light before permission of the Reporters cisco (9th Cir.) dismissed a false claim from a the public; and 4) misappropriation of a Committee. Seattle public official who had been secretly person’s name or likeness. videotaped by a reporter during her trip to The facts of a particular case may im- The Reporters Committee for a public administrators convention in Las plicate more than one branch of privacy Freedom of the Press Vegas. The reporter, whose report revealed law. Some states refuse to recognize one or 1101 Wilson Blvd., Suite 1100 that the plaintiff spent more time gambling more of the four torts; other states replace or Arlington, VA 22209 and shopping than she did attending the supplement the common law with statutory (703) 807-2100 conference, was not found to have acted privacy rights. web: www.rcfp.org with actual malice even though he testi- This guide provides a general explana- fied that he wanted to “shock the public” tion of each privacy tort and related causes Page 2 The Reporters Committee for Freedom of the Press Fall 2007 of action. The state case law section sum- tims and witnesses, photographs of almost in their identities. Usually, using a relevant marizes privacy cases involving photography anything visible in a public place do not photograph to illustrate a newsworthy article from federal and state courts throughout give rise to actions for publication of pri- will not create liability, whereas using a the country. vate facts. celebrity’s image in an advertisement often Although photography poses some will. However, newsworthiness is not always unique problems in privacy law, in general the False Light: a defense to a misappropriation claim. The legal analysis for invasion of privacy through U.S. Supreme Court has ruled that a news images parallels the analysis for invasions One who gives publicity to a matter broadcast showing the entirety of the 15- through words. A complete examination of concerning another that places the second act of a “human cannonball” could the privacy law in every jurisdiction is be- other before the public in a false light violate the man’s right to publicity, since the yond the scope of this guide. However, the is subject to liability to the other for broadcast could take the commercial value introduction to each state summary notes invasion of his privacy, (a) the false light out of his performance by allowing spectators which of the four privacy torts have been in which the other was placed would be to see it for free rather than requiring them recognized in any context by the state. highly offensive to a reasonable per- to buy tickets. Zacchini v. Scripps-Howard son, and (b) the actor had knowledge Broadcasting Co., 433 U.S. 562 (1977). Intrusion: of or acted in reckless disregard as to Because the use of a celebrity’s likeness the falsity of the publicized matter in advertising may imply endorsement of a One who intentionally intrudes, physi- and the false light in which the other product or service, a celebrity whose likeness cally or otherwise, upon the solitude would be placed. is used without consent may also have a claim or seclusion of another or his private — Restatement (2nd) of Torts, § 652E. under the federal Lanham Act, 15 U.S.C. § affairs or concerns, is subject to liability 1125(a), which prohibits false descriptions to the other for invasion of his privacy, Photographs can lead to false light of products or their origins. if the intrusion would be highly of- claims when improperly captioned or when fensive to a reasonable person. images are used to illustrate stories that Defenses To Privacy Suits — Restatement (2nd) of Torts, § 652B. are not directly connected with the image Several defenses are available to photog- itself (for example, a photograph of a thin raphers and news organizations accused of Intrusion claims generally arise from the woman taken for another purpose and later invasion of privacy. newsgathering process itself rather than from used to illustrate an article about bulimia). If the subject of the photograph has no publication or dissemination. For this reason, However, a photograph that accurately de- reasonable expectation of privacy, then no intrusion is the privacy tort photographers picts a situation that occurs in public view invasion of privacy is possible. Photographs should be most concerned with, since their will often not support a false light claim, taken in public places generally are not ac- actions in the field can create liability, even even if the person pictured is offended by tionable. Photos of crimes, arrests and acci- if none of their work is published. the image (for example, in a Massachusetts dents usually are immune from “publication The tort of intrusion is related to tres- case, a man sued a newspaper for publishing of private facts” privacy claims because they pass, and there are three general types of a picture in which he can be seen standing are of “legitimate public concern,” which is intrusion claims: surreptitious surveillance, in an unemployment line.

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