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The Internet Journalist
Invasion of privacy on the web


Don Burleson

 

Burleson is co-author of Web Stalkers: Protect yourself from Internet Criminals & Psychopaths, $19.95 by Rampant TechPress.  Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.


Like it or not, millions of Americans have unwittingly become amateur journalists, without the benefit of understanding the important laws regarding publishing of information that might hurt someone else. Let's take a closer look and explore these issues:

In False Light Invasion of Privacy, A New Tort in Town, judges Breeeden and Zayicek note that the the right to privacy is protected in many States:

The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.

They also note that the U.S. Supreme Court has agreed that publishing embarrassing facts about a private citizen (even if the statements of fact are completely true):

This (U.S. Supreme) Court has approved the following as a fairly comprehensive definition of what constitutes an actionable invasion of the right of privacy:

The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.

Defamation vs. False Light Lawsuits

There is a common misunderstanding between Libel and Defamation.  Libel is the publication of a false, defamatory, statement fact, while defamation is the publication of anything (true or false) that injures any person or business entity:

Defamation is generally defined as a statement impeaching the honesty, integrity or reputation of an individual and thereby exposing the individual to public hatred, contempt or ridicule, to cause him or her to be shunned or avoided or to injure the individual in his or her office, business or occupation.

Could you get sued for publishing an insult that results in others ridiculing someone, even if there was no concrete damage to the defamed person?

The DMCA was designed to protect web hosting services and ISP's and not web authors.  In this article, a retired judge Fadeley notes that offering DMCA protection to bloggers and web authors is a serious loophole in the DMCA, and that new legislation is required to make bloggers and "cyber bullies" responsible for damage to people.  See Time for DMCA reform for details.

"The law has yet to create reasonable standards for the Internet and allows anyone to quote any source, with almost no liability for what they say.

The impact on innocent parties can be severe -- some companies have lost millions in stock value from an irate individual speaking anonymously as an expert on a blog soapbox, making statements intended to be read as fact"

Judges Breeeden and Zayicek note that false-light invasion of privacy has much lower standards than defamation.  In a False Light claim, the injured party does not have to prove real damages, only that they were exposed to public hatred, contempt or ridicule:

Not only is the truth treated differently under false light and defamation, but false light also does not require that a statement “expose the individual to public hatred, contempt, or ridicule, or to cause him to be shunned or avoided, or to injure him in his office, business, or occupation.”

False light protects against less harmful statements. . .

In theory, false light and defamation are designed to protect different interests and do not always overlap, meaning they can coexist as distinct causes of action, even in the same lawsuit.

This sample case shows a claim for false light invasion of privacy:

18.  That the aforesaid actions and accusations by the defendants have been publicized and communicated to third persons and the general public by the defendants with express, reckless, and wanton disregard of the plaintiff’s right to privacy.

19. That said publicity has unreasonably placed the plaintiff in a false light in the public eye.

20. That by reasons of said invasion of privacy and as a proximate result thereof, he was damaged in the amount of two hundred thousand ($200,000) dollars, actual and punitive damages. Id. (emphasis added).

Defamation and Truth

In this publishlawyer.com article titled “When Truth is no Defense”, we see an excellent definition for defamation and false light, noting “There is a subtle difference in the way courts view the legal theories -- false light cases are about damage to a person's personal feelings or dignity, whereas defamation is about damage to a person's reputation.” 

The article “When Truth is no Defense” notes that non-libelous statements of opinion such as "My co-worker John Doe is a filthy cheat." are defamatory:

Defamation is written or spoken injury to the reputation of a living person or organization. Injury to reputation generally is considered to be exposure to hatred, contempt, ridicule, or financial loss. Libel is the written act of defamation; slander is the spoken act. This distinction is important; libel often has greater legal consequences than slander. Whether libel or slander, the defamation must be published – communicated to someone other than the subject of the defamation. . . .

WRONG: "My co-worker John Doe is a filthy cheat." This is defamatory: an unproven, pejorative ("filthy" and "cheat") statement about a private (non-public figure) individual.

INSTEAD:   "I saw John take five toner cartridges from the supply closet and put them in his car."

The article also describes the essential nature of a false light claim:

. . . "False Light" privacy lawsuits occur when a writer publishes facts about a person that creates a deliberately false and misleading impression. Examples include when a newspaper publishes a story about convicted felons and includes the name or photograph of an innocent person, or when, in a story about a hate group, the writer includes the name of a person not a member of that group.

This FindLaw article notes that false light recognizes a persons legal right "to be let alone" and that violations of their “right to privacy” is actionable:

In a landmark privacy case, the Georgia Supreme Court concluded that personal liberty includes not only freedom from physical restraint, but also the legal right "to be let alone." Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 71 (1905).

Summers' factual allegations, which we take in the light most favorable to her, and which fall within the two-year limitation period, suggest not only a physical intrusion onto her residential property, but an offensive, frightening and unreasonable surveillance of her private affairs.

Truth does not excuse false light

This article discusses false light invasion of privacy and it’s distinction from libel. 

In another case, an entertainer who performed at an amusement park with a swimming pig brought defamation and false light claims based on the publication of her photo in Chic magazine. The photo was a true representation of the woman and her pig, so it could not give rise to a defamation claim. But her false light claim succeeded because the essence of the piece, which made the entertainer's act seem sexual and deviant, was held to be false. (Braun v. Flynt, 1984)

False Light claims are not for everyone

The above article notes those States where false light is not recognized as a cause of action:

Ten states -- Colorado, Massachusetts, Minnesota, Missouri, New York, North Carolina, Ohio, Texas, Virginia and Wisconsin -- have expressly rejected false light as a viable claim when recovery is sought for untrue statements. Some of those states, such as Virginia, have statutes that dictate what type of privacy claims may be made and that specifically leave out false light. In the other states, the highest courts have determined, as a matter of common law,  that false light will not exist in their state.

In 11 states, supreme courts have not had an opportunity to rule on whether false light is recognized. In those states -- Alaska, Florida, Hawaii, Michigan, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming -- journalists should assume that courts will hear claims against the media for false light. In South Carolina and Washington, false light claims are less likely to succeed, as lower courts have predicted that those states' supreme courts would not recognize such claims.


Note:  This is a literature review prepared by a non-lawyer and this research may not be construed as legal advice.  If you are seeking legal advice of qualified attorneys, consult your local Bar Association, not my web pages.

Also see the book on protection from Cyberstalkers.


 

 

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