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The Internet
Journalist
Invasion of privacy on the web
Don Burleson
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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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and include the URL for the page.
