Right of Privacy: Private Facts

Although the word “privacy” does not appear in the constitution, it is considered a “derived” right. In media law, privacy is considered a tort, which is a civil suit. 

There are four privacy torts: intrusion, private facts, false light, and appropriation/misappropriation/right of publicity. However, in this post I will focus on the most common form of invasion of privacy, which is the publication of private facts. 

Private facts information is defined as, “”highly offensive to a reasonable person” and “not of legitimate public concern,”” (“Free speech rocks!,” 2012). 

However, more prominent people get less protection. 

In reference to defense, it does not matter if the facts are true, and are, in fact, more damaging if they are. 

The main defenses to private facts are newsworthiness, qualified privilege, and consent. 

Newsworthiness is considered the main defense “since judges don’t want to second-guess journalist’s determination of what is newsworthy and worth reporting” (“Free speech rocks!,” 2012). Unlike libel, truth is not a defense. 

In the case of qualified privilege, “coverage of government proceedings or documents inherently newsworthy–everything in public records presumably “in the public,” thus not private facts–but must report truthfully!” (“Free speech rocks!,” 2012). 

If consent is used as a defense, written is considered to be best, however, it can be revoked if done reasonably. 

The defense of newsworthiness is demonstrated in the court case Virgil v. Time (9CA 1975). 

In this particular trial, Mike Virgil, a bodysurfer from California, “boasted of eating spiders and biting guy’s cheek off in SI interview” (“Free speech rocks!,” 2012). 

Virigil had originally consented for this information to be published in the magazine, however, he then tried to revoke it. 

Yet, the publication held to be newsworthy in understanding of high-risk sports. 

Therefore, it is easier for more “private people” to win a case against private facts. Celebrities, public figures, etc., however, get much less protection, especially when it comes to determining newsworthiness/what is worth reporting. 

In addition, society’s “public figures” are literally more public and the media is free to publish almost as and what they wish of the persons, as long as it is true. 

 

 

References: 

Free speech rocks! . (2009). Retrieved from http://www.freespeechrocks.com/

Picture received from: 

 

http://www.flickr.com/photos/redpilotmedia/2277750479/

Copyright

The website, “Free Speech Rocks!,” created by Genelle Belmas, states that a “copyright owner has exclusive right to reproduce work, to create derivative works, and to distribute copies, perform or display it.” 

In other words, the party who owns the copyrighted material may choose to do what they wish with their work. 

Copyright is considered to be strictly federal, meaning there can be no state law differing from federal copyright law, and that all lawsuits involved within are dealt with on the federal level. Thereby, Congress has preempted the field. 

Yet there are things that may not be copyrighted and that are not protected under law. These things consist of: Scenes a faire (scenes and characters that are “stock” to set scene of play or movie), anything written by the U.S. Government (only federal), anything made up of wholly common information (calendar, weights, measurement, etc.), public domain works, and facts and history (“Free speech rocks!,” 2012). 

WIth that being said, “copyright protection extends to original works of authorship fixed in any tangible medium of expression, no known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or devise” (“Free speech rocks!,” 2012). 

Therefore, what gets protected are things that are not copied, tangible (not an idea), and attempting to grow with the times and new technologies. 

However, if someone else were to use the copyrighted material without permission, this would be considered infringement (unless shown to be fair use). 

In order for infringement to be proven, a three-part test must be demonstrated in which case the plaintiff has the burden of proof. The plaintiff must show that they have a valid copyright, that they defendant had access to the copyrighted work, and that the defendant’s work is substantially similar to the plaintiff’s own (“Free speech rock!,” 2012). 

An example of this is demonstrated in the lawsuit, Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (SDNY 1976). In this court case, George Harrison’s song, “My Sweet Lord” was found to be considerably similar to that of the Chiffons’ “He’s So Fine.” Harrison said that he “subconsciously” mimicked the tune rather than intentionally. 

Yet, the court stated that, “His subconscious knew it already had worked in a song his conscious did not remember… That is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished” (Free speech rocks!,” 2012). 

In addition, copyright law is important to media and media technologies because it allows people, and companies, to protect their work. Without it, for example, everyone could be using the face of Mickey Mouse for their own company and say it was theirs. However, with copyright, everyone knows that Mickey Mouse belongs to, and is the face of Disney. 

As demonstrated with the court case, these protections are also true to songs, etc. 

 

 

My Sweet Lord – George Harrison 

 

He’s So Fine – The Chiffons

 

 

References: 

Free speech rocks! . (2009). Retrieved from http://www.freespeechrocks.com/

George Harrison-My Sweet Lord (Studio Version) Original [Video]. Retrieved on November 27, 2012, from http://www.youtube.com/watch?v=0kNGnIKUdMI 

The Chiffons – He’s So Fine [Video]. Retrieved on November 27, 2012, fromhttp://www.youtube.com/watch?v=rinz9Avvq6A

 

 

DMCA Title II

In this post, the focus will be DMCA Title II and one particular court case that relates and applies to it.

Taken from the lecture notes of Cal State Fullerton professor, Genelle Belmas, DMCA Title II, “Establishes certain limitations of copyright infringement liability for online service providers (OSPs).”

The act itself broadly defines what a service provider is, but sets forth “notice and takedown” procedures for material such as website content that resides on OSP servers” (“Free speech rocks!,” 2012).

DMCA Title II requires that service providers must follow certain steps before taking advantage of any copyright or trademark protections. Furthermore, section 512(c) “requires notice to original site and opportunity for response (“notice and takedown”)” (“Free speech rocks!,” 2012).

In more simple terms, a website must be notified of their copyright or trademark violation and be given time to take down the material from their website before any further action is taken.

However, there are certain limits on notice and takedown, which can be illustrated in the court case titled Lenz v. Universal Music Corp.(N.D. Cal. 2008).

In this particular court case, mother Stephanie Lenz posted a short video clip on the popular website, YouTube, of her toddler dancing to pop-star, Prince’s, song “Let’s Go Crazy.” However, when Prince gained knowledge of the video, he told Universal to demand that the video be taken down under DMCA. Universal did so, resulting in YouTube taking down the video from their website.

In response, Lenz sued, and claimed that she was using the song as fair use and that “Universal must evaluate whether each use was a fair use before taking it down” (Free speech rocks!,” 2012).

The federal court agreed, stating that, “A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute” (“Free speech rocks!,” 2012).

Lenz is currently winning in her suit against Universal.

As a result, this court case helped to verify that companies must actually look at the video, and consider its form of use, before demanding that it be taken down. This case has allowed for many other people to post videos on websites such as YouTube using various songs from countless artists without getting in trouble for it or have their video taken down from the website.

Furthermore, this case also extends to other material on OSPs and how they, too, must actually be checked and viewed before being taken down.

References:

Free speech rocks! . (2009). Retrieved from http://www.freespeechrocks.com/

“Let’s Go Crazy” #1 [Video]. Retrieved on November 13, 2012, from http://www.youtube.com/watch?v=N1KfJHFWlhQ

Near v. Minnesota (1931)

This lawsuit came about when The Saturday Press, published by Jay Near, was accused of being “malicious, scandalous, and defamatory.” Seeing that Near was anti-Catholic, anti-Semitic, anti-black, and anti-labor, this was probably a fair assessment of the publication. Near even claimed in his articles that “Jewish gangsters were running gambling, bootlegging and racketeering in Minneapolis, and that the city government and police force were doing nothing about it” (“Free speech rocks!,” 2009). 

In addition, Minnesota law said that Near’s publication was a “public nuisance,” and shut it down.

However, through a narrow 5-4 decision, the Supreme Court overturned the Minnesota decision, said that there would be no prior restraint, and allowed Near to keep publishing.

Chief Justice Hughes wrote that, “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any less the immunity of the press from previous restraint in dealing with official misconduct”(“Free speech rocks!,” 2009).

The court also found, and decided, that prior restraint should be rare. Therefore, there are three occasions where prior restraint could be considered/allowed. These instances would be troop movements during wartime, obscenity, and “incitement to acts of violence and the overthrow by force of orderly government”(“Free speech rocks!,” 2009).

Why is this case so important? Media and the press cannot be censored. They are technically free to write about, and publish, whatever they wish so long as they follow the three exceptions. No government, or company, can say to them “you can’t write this.” Because of no prior restraint, we as an audience know more about our government, about certain companies, products, etc. It allows the media to retrieve, and report news to the people that may otherwise be kept mute or hidden.

A perfect example of an attempt of prior restraint and the government is New York Times v. U.S. (1971), which concerns the Pentagon Papers. While I will not go into too much detail about the case, the gist of it is that the Nixon administration tried to stop the publication of a top-secret study covering the period from World War II to May 1968, that criticized the war effort in Vietnam. However, the holding was that, because the government had not proved that the publication would endanger national security, prior restraint would not be acceptable. Furthermore, if media gets the information lawfully, then they can publish it.

In addition, thanks to Jay Near and his “public nuisance” newspaper, prior restraint is not acceptable and the press is free to publish what they’d like. This ultimately benefits the public as it allows opinions to be expressed, legally obtained documents to be “leaked,” and the public to be more “open,” among other things.

Free speech rocks! . (2009). Retrieved from http://www.freespeechrocks.com/

Pictures received from (in order):

New York Times v. Sullivan (1964)

The first case I’d like to discuss and interpret is New York Times v. Sullivan (1964). While it is an older case, it holds a lot of precedence over what is allowed to be published today. In fact, Genelle Belmas, Communications Law professor at Cal State Fullerton, believes this to be one of the most important cases in media law.

The case is based on libel and the first amendment and came about when L.B. Sullivan, Montgomery city commissioner, sued the New York Times for a political ad, where Sullivan claims he was personally defamed. Indeed, there were some small factual errors in the publication, however Sullivan made no effort to prove he suffered damages as a result of the article. In addition, the Alabama Supreme Court upheld a $500,000 award to Sullivan based on strict liability.

However, the United States Supreme Court overturned the Alabama Supreme Court’s decision and set a new standard for burden of proof. The US Supreme Court justices said that public officials had to prove actual malice. This is a change from common law because now the burden of proof is on the plaintiff.

Justice William Brennan wrote: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that a statement was made with ‘actual malice’ –that is, with knowledge that it was false or with reckless disregard of whether it was false or not”(“Free speech rocks!,” 2009).

As a result, this case had four major implications. First of all, it “established actual malice standard for public officials”(“Free speech rocks!,” 2009). Second, it put the burden of proof on the plaintiff, rather than the defendant. This case also made libel a constitutional question under the first amendment. And lastly, it “emphasized the importance of open debate about public officials”(“Free speech rocks!,” 2009).

In regards to open debate, Justice Brennan wrote, “Debate on public issues should be uninhibited, robust, and wide-open, and…it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”(“Free speech rocks!,” 2009).

While this case obviously has had several large effects on our society today, the one I’d like to take a deeper look at is open debate on public officials. If it weren’t for this case and its judgement, newspapers, magazines, or anything published for that matter, would be able to include oppositional opinions on public figures or government policies. This case allowed the media to have more free range on what they’d like to write about and discuss and puts all of the burden of proof on the plaintiff if anyone were to bring a suit against them. In fact, while most defendants do bring up a defense for their case, they really don’t have to under law.

In addition, thanks to the decision of New York Times v. Sullivan (1964), the media has been provided a margin of safety and an absolutist idea has been tied to the First Amendment guarantee of freedom of the press.

Free speech rocks! . (2009). Retrieved from http://www.freespeechrocks.com/

Lets get this thing started…

Okay, I’m just going to be upfront and say it now; I’m writing this blog for a class project.

I’m actually somewhat looking forward to this though, for I think it should be a little fun and interesting. It’s something different. The topic I chose to write about and research is communications law and how it has affected communications technologies today. I mainly decided on this topic because I am also taking a communications law class right now. So, in a way, I’m killing two birds with one stone. Nobody said that was against the rules! Anyways, not only is this helping me with my comm. law class, but I actually do have an interest in this stuff. I’ve even considered going to law school (we’ll see how that one goes). Maybe this blog will help me with my final decision! I guess we will find out.

Well, that’s it for now! I hope everyone reading this enjoys my blog!

 

Alexis