SPRING 1998 THETHE PRIVACYPRIVACY PARADOXPARADOX Newsgathering and CIVIL SUITS Suing the Media: Individuals have been suing the media over the reporting are hampered four standard privacy torts for years, but related claims — such as fraud and intentional infliction of emotional distress — are becoming more popular, as are state laws that give individuals the right to sue by an ever-increasing for activities like following a newsworthy subject. Page 3 GOVERNMENT ACCESS wall of restrictions erected Freedom of Information Acts and Privacy Exemptions: Limits on access to data contained in government-held files are becoming in the name of protecting more common based on claims that release of the information would invade personal privacy. Page 6 personal privacy. The COURT ACCESS Judicial Proceedings and Documents: Increasingly, judges, result may be a loss to the attorneys and parties cite privacy concerns to justify denying access to criminal and civil proceedings, undermining long-established First public good greater than Amendment and common law rights of access. Page 10 ELECTRONIC DATA ACCESS Will the U.S. try to conform with the European Union’s strict the protections gained. Directive on Data Protection? It may already be happening. Page 14 However, the Constitution’s prohi- physicians who continued to practice Introduction bitions are directed at state action. medicine despite having been found Nowhere does it explicitly protect liable for malpractice several times and individuals from invasions of privacy a series uncovering the fact that The news media in the United States committed by private actors, persons obsolete night-vision goggles had have a long-standing history of reveal- and organizations unsupported by the contributed to the crash of at least 56 ing things that some people would power of the state. Thus, those who military aircraft. After obtaining access prefer to keep private. wish to manipulate public perception to raw information available in govern- “The press is overstepping in every by controlling what others say about ment files, reporters can question, direction the obvious bounds of them must usually look elsewhere for analyze and follow-up on their discov- propriety and of decency,” complained legal restrictions on what may be eries. Samuel Warren and his former law learned, spoken or printed. Privacy concerns are also fueling partner Louis Brandeis in 1890. In recent years, legislatures and efforts to limit press access to judicial “Gossip is no longer the resource of courts have been all too willing to proceedings, where important political the idle and of the vicious, but and social issues are resolved. has become a trade, which is Until recently, the public’s pursued with industry as well as access rights to the judicial effrontery. To satisfy a prurient system were broad. In the taste the details of sexual rela- THE PRIVACY absence of a countervailing tions are spread broadcast in the interest of constitutional dimen- columns of the daily papers. To sion, courtrooms were open to occupy the indolent, column PARADOX anyone interested in attending, upon column is filled with idle and court files available to gossip, which can only be anyone who asked to see them. procured by intrusion upon the domes- impose such restrictions. Newsgather- Journalists rely on these access rights tic circle.” ing and reporting, protected though to gather and disseminate news about Warren and Brandeis were hardly they are by the First Amendment, are specific trials as well as the court the last unhappy subjects of American hampered by an ever-increasing wall of system in general. In turn, the public journalism, nor were they the last to statutes and court decisions erected in relies on the press to keep it informed propose that the law be used to restrain the name of protecting personal about these matters. the media. Throughout American privacy. Accordingly, journalists must However, with increasing frequency, history, individuals have launched be aware of new restrictions imposed purported privacy concerns drive innumerable schemes to require by these laws and how they operate to efforts to keep judicial proceedings and journalists to see them as they see limit news coverage. documents secret. Judges who are themselves, whether by limiting access An exaggerated concern for privacy concerned about publicity but unable to embarrassing information or by is also seriously interfering with the to stop the news media from publishing punishing the press for publishing. Any ability of the media and the public to information lawfully in their posses- such effort is necessarily limited in gain access to personally identifiable sion cut off information at the source some way, however, by the simple information held by the government, by limiting the information available command of the First Amendment: weakening the presumption of open- to reporters by sealing documents, “Congress shall make no law . ness that forms the foundation of conducting closed proceedings and abridging the freedom of speech, or of freedom of information laws. Courts issuing gag orders. the press.” and legislators often fail to recognize Despite the absence of the term the public interest in making this The Privacy Paradox “privacy” in the text of the Constitu- information available. Journalists use Spring 1988 tion itself, the Supreme Court has freedom of information laws as a recognized at least some constitutional starting point for their investigative Editor protection for a “right to privacy.” work, enabling them to identify trends Jane E. Kirtley This sometimes nebulous concept and uncover corruption or other protects the right of people to make misconduct of great interest to the Writers their own decisions about birth American public. Benjamin Bedrick control, vocation, travel and other Access to personally identifiable Barbara Lerner issues without government interfer- information from government files has Bryan Whitehead ence. The Constitution also provides made it possible for reporters to explicit protection for certain types of uncover groundbreaking stories, such © 1998 The Reporters Committee privacy, such as the Fourth Amend- as an account of crimes committed by for Freedom of the Press. All rights reserved. ment’s prohibition of unreasonable inmates released early from Florida This material may not be reproduced searches and seizures. prisons, a report exposing Indiana without the written permission of the Reporters Committee. PAGE 2 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 1998 This trend has serious implications for the public’s right to be informed about impor- tant issues resolved through litigation in state and federal courts. By limiting public scrutiny, secrecy reduces the accountability of judges and attorneys. As technology makes information more readily and widely available, growing concerns about privacy rights have triggered myriad efforts to keep “personal” information confidential. This reaction is disastrous for journalists, creating new obstacles to their newsgathering efforts which undermine the First Amendment’s free The death of Diana has led to calls for restrictions on the press provisions and newsgathering methods of the media. The late Rep. Sonny freedom of information Bono (R-Calif.) introduced a restrictive bill in Congress. laws. AP PHOTOS Suing the media for invasion of privacy Samuel Warren and Louis Brandeis the ostensible purpose of gathering taping the subjects of their story. were not happy with some of the things news. Intrusion is the only one of the (Wolfson v. Lewis) they read in the “yellow” press, partic- four traditional invasion of privacy Even coverage of persons and events ularly stories about parties thrown by lawsuits to which newsworthiness that take place on public property may Warren’s wife, “blue blood” items that provides no defense. be considered intrusion in some covered Mrs. Warren’s social events in For example, in the course of circumstances. In a recent case in embarrassing detail. So they conceived working on a story about the high California, a cameraman for the a new kind of legal theory that would salaries and extravagant lifestyles of television show “On Scene: Emergency allow private parties to sue the media some HMO executives, reporters for Response” videotaped emergency for invasion of privacy. In a Harvard “Inside Edition” videotaped U.S. medical technicians rescuing a woman Law Review article, they outlined Healthcare chairman Leonard Abram- who had been injured in an auto situations where individuals could turn son and his family at work and at home. accident. In the course of covering the to the courts to punish the media for The “Inside Edition” crew at one point story, the cameraman joined rescuers in reporting news about them. Though rented a boat, anchored it in a public a helicopter as the woman was trans- the two attorneys envisioned a single waterway outside the Abramsons’ ported to a hospital. The woman sued cause of action, “invasion of privacy” Florida estate, and used a camera the show’s producers for intrusion and actually includes four different types of equipped with a telephoto lens and a disclosure of private facts. Although a lawsuits: intrusion, disclosure of private sensitive microphone to videotape the lower court dismissed the suit, a state facts, false light and misappropriation. exterior of the house. Abramson’s appellate court reinstated the intrusion daughter and son-in-law sued the claim based on the videotaping that A PRIVACY PRIMER journalists for intrusion, and a federal took place inside the helicopter itself, Intrusion resembles the much older district court in Philadelphia, despite holding that once the helicopter’s door tort of trespass, and prohibits unautho- recognizing the importance of news had shut, the victim could claim a rized entry into an area where a person coverage of the HMO industry and the reasonable expectation of privacy. The has a reasonable expectation of privacy, people who run it, ordered the “Inside court’s decision is being appealed. whether or not such entry occurs for Edition” crew to stop following and (Shulman v.