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MMC 4200, Week 8 Notes

by: Deena Acree

MMC 4200, Week 8 Notes MMC 4200

Deena Acree
GPA 3.87

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About this Document

First Amendment defenses, newsworthiness, consent, intrusion, secret recording, cyber bullying, trespass, false light, appropriation, intentional infliction of emotional distress (IIED)
Law of Mass Communications
Sandra Chance
Class Notes
media law, Law, mass communication, law of mass communication, first amendment, court systems, SCOTUS
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This 11 page Class Notes was uploaded by Deena Acree on Wednesday March 2, 2016. The Class Notes belongs to MMC 4200 at University of Florida taught by Sandra Chance in Winter 2016. Since its upload, it has received 98 views. For similar materials see Law of Mass Communications in Journalism and Mass Communications at University of Florida.

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Date Created: 03/02/16
Class Thirteen (Chapter 5) — 2/23/16 Chapter 5 continued: Defenses • First Amendment o Protects most truthful information lawfully acquired IF not highly offensive to a reasonable person and of legitimate concern to the public • Newsworthiness o Public records and occurrences • If the information is on public record, it is likely to be considered to be newsworthy o Strange and unusual • If it is strange and unusual, it is probably newsworthy o Newsworthiness over time • If something wasn't newsworthy at first (but is now), then it is considered to be newsworthy over time • Consent o You cannot be held liable if the person consented to you using their personal information Newsworthiness • Public records and occurrences o If it is part of public record or a public occurrence, it is considered newsworthy by default • Strange and unusual • Newsworthiness over time (2 meanings:) o At one point in time, being famous makes something still relevant o Something that can start being not newsworthy can become so by people making it out to be • Cape Publishing, Inc. v. Bridges o Newsworthiness • Public records/occurrences • Strange and unusual • Newsworthiness over time o Mrs. Bridges was held hostage by her husband, was made to undress, and then he killed himself in front of her • She was escorted by a policeman out of her house using noth ing but a dish towel to cover herself • She sued the newspaper for posting the photo • The court said that it was newsworthy, saying that it was an unusual circumstance, a newsworthy event, it occurred in public (on her street), and it wasn't showing anything that would not have been seen at a beach (nothing indecent was shown) o Another example of this: Pittsburgh Steelers football fan whose fly was down • Tried to sue because of the recording/photo; court ruled that it wasn't the press' fault that he was in that situation in public • Newsworthy event was the game Consent • Express • Implied o By not walking away from someone in public, you are implying consent o "Private" Videos • Paris Hilton sex tape § Her boyfriend (an amateur pornography videographer) taped her § The tape was "stolen" and leaked to the public § They settled out of court • Pamela Anderson & Tommy Lee tape § The video was private (between a married couple) § A worker in their house stole the video and leaked it § They did win the case ($1.5 million) from the webs ite that had published the video (received the injunction • Kid Rock and Scott Stapp (lead singer from Creed) § Made a sex tape video with four groupies § Initially won a temporary injunction § One of the women tried to sue the men because of the tape, but the c ourt ruled that she had consented to the recording of the video, regardless of its later uses o Public Videos • VIDEO: Cops § Albuquerque Police Department § Man was arrested for driving while drunk and it was filmed and put on the show § Typically, these events ar e considered to be newsworthy (not typical traffic stops, but other things that happen on the shows) • Girls Gone Wild § Becky Lynn Gritzke • FSU business major • Went to New Orleans for Mardi Gras & was filmed by GGW • She was not only in the final production, but also was on the cover of the video • Sues producers of Girls Gone Wild video, claiming invasion of privacy and appropriation • Lost the tort because it was a public event, she knew what she was doing, and they were within their rights to videotape the things that were in public • However, they did lost the appropriation tort because they used her likeness on their video's cover Intrusion • Paparazzi or uninvited ride -alongs o It's easier to sue for intrusion claims o It has become the most troublesome privacy tort for the press o Intrusion doesn't require wide publication o The most publicized claims are those that involve the paparazzi • Covers: o Undercover reporting o Secret recordings/hidden cameras o Laws prohibiting taping of certain conversations • In Florida, it is a two-party consent law (meaning that all of the parties involved in a communication need to give consent to it being recorded). • Fourth Amendment • Tort of Information Gathering o General rule is that the media can film/ photograph anything that they can easily or legally see while they are in public places o Filming policemen/women in their public capacity is legal • But this doesn't mean that you don't have to follow directions • A lot of the time, those charges against you w ill stand even though you have a right to record • Public and Quasi-Public Places o There is no reasonable expectation of privacy in public at all o In quasi-public places, there is still no guarantee, but it becomes more tricky • Especially is more tricky when us ing eavesdropping devices • Permitted Newsgathering • Harassment and Stalking • Cyber Bullying • Private Places o Your own home, hospital room, etc. o Courts have ruled that you don't have it inside of your car • Key: reasonable expectation of privacy • The intentional invasion of a person's physical seclusion or private affairs • Highly offensive to a reasonable person o "shocks the public consciousness" o Courts also look toward other laws (especially criminal violations) as evidence that intrusive behavior was offensive to a reasonable person. o Held as not intrusive if the public's benefit outweighs the individual's right to privacy o Couple in an apartment complex in Tampa had sex with their windows open § After several complaints, they continued to refuse to c lose their windows § One man recorded them from their window so that he could take it to the police and have them arrested for indecent exposure § They tried to sue and lost because they had taken steps to make sure that they had no expectation of privacy Secret Recording: • Dietemann v. Time, Inc. o Man was a plumber who was providing medical services from his home without a license o Life magazine sent two reporters undercover to claim that they had "lumps on their breasts" o They took photos and transmitted them to the health officials outside of the home o Jury awarded him $1,000 because he didn't have "clean hands" o SCOTUS upheld this ruling because he had a reasonable expectation of privacy inside of his own home • Florida Statute: Security of Communications —Chapter 934 o Unlawful to intentionally intercept of intentionally use any device to intercept wire, oral, or electronic communication • Requires the (all of the) other party's consent to taping • Third-degree felony: up to five years in jail o This is in contrast to the federal statute: federal statute is one -party consent • Bartnicki v. Vopper (2001) o A radio station broadcast of a cellphone conversation between two public school officials o The officials were unhappy with s omething going on in the schoolboard and said "if we don't get our way we'll have to go down there and blow down their doors" (hyperbole) o Illegally intercepted by an unknown person, who took it seriously and was concerned about the threat o This person released it to the press (radio station), who published it o SCOTUS ruled that the press legally received the information, so they cannot be held accountable (important distinction as to who is liable for an illegal action) o The press may freely publish: • Truthful material • Matters of public significance • Lawfully obtained (even if source obtained it lawfully) • Unless government can demonstrate compelling interest • VIDEO: Anne Hathaway on the Paparazzi (on Conan) o Courts have held time and time again that c elebrities have a lesser expectation to privacy than regular people (they willingly thrust themselves into the public eye) • Video Voyeurism o Starke Man with tanning salon • Man head a tanning salon with a weird setup: it was a room with a tanning bed, extremely cheap • There was a two-way mirror in the room, and the man was filming everyone who went in there • There was also a hole in the tanning bed to look in from private angles • He was also convicted of child pornography because it turns out that a few of the women were under 18 • His defense was that "it was for his own personal use" • He got years in prison Cyberbullying • HR 1966 o Megan Meier Cyberbullying Prevention Act § She was a 14 year old who fell in love with a boy online, but then was broken up with by him and told she should just go kill herself § She did, she hung herself § Turns out that her "boyfriend" was actually a 47 year old mother of another student at the school • amends the federal criminal code to impose criminal penalties on anyone who transmits in interstate or foreign commerce a communication intended to coerce, intimidate, harass, or cause substantial emotional distress to another person, using electronic means to support severe, repeated, and hostile behavior • Fine and up to two years in prison • Florida case: Pembroke Pines Charter School v. Katherine Evans (2007) o "Ms. Sarah Phelps is the worst teacher I've ever had" o Florida now has a "cyberbullying law" (2008) • Florida Statute 1006.147 • Prohibits bullying and harassment of any student of employee of K -12 school for school safety purposes • North Carolina case o A law was passed that aimed to protect teachers from fake pages about them being made by their students o Hasn't yet been challenged in the court, but there are other ways to impose penalties on students Trespass • Entering private property or inviting someone to go on private property without consent of owner or professor o This is different from intrusion; it's physical entry into a private place • Example: Food Lion case o Food Lion sued ABC in 1995 for many things, including trespass o VIDEO • ABC sent two reporters to Food Lion who applied for jobs there • They were recording things that were happening in the meat department • In most places, you sign an employment contract that sa ys you have a duty to your employer • This is how they were able to sue for breach of duty to the company o Appellate court said that they had trespassed because they had come in under false pretenses • Didn't indicate that they were reporters, which would have kept them from being allowed into the restricted areas of the property o Upheld a $2 damage verdict Consent (part 2) • Express • Implied o Custom and Usage Defense • Fla. Publishing Co. v. Fletcher • Florida Supreme Court said that the case should be limited only to Florida and only to cases that are related to catastrophe • A photographer had been on a ride -along with a fire department and took photos of a house that had had burned down • In some cases, the "Color of Law" doctrine says that journalists on ride-alongs can be considered to be quasi-government officials and could be held in violation of the fourth amendment o Desnick v. ABC • Eye exam case § Reporters went into an eye doctor's office and filmed what went on § Posed as patients § There had been rumors that there were sketchy examinations being done • 2 causes of action § Trespass: • Court said that there was no trespass because there was no invasion of privacy (nothing private was revealed) § Intrusion: • Court said that there was no intrusion eit her; the patients had agreed to the recordings even though the doctor did not • Doctor claimed that it violated patient -doctor confidentiality, but the court ruled that that right belonged to the patient only • This was in a one-party consent state; the patien t (who was recording) had consented, so there was no wrongdoing in this case o Shulman Case § Woman, Ms. Shulman, had been in a serious car accident (car flipped multiple times), was transported in a rescue helicopter § The responders were part of a show that recorded first responders and their actions on a scene § The medical professionals were all equipped with mics and recording her while she was being transported • 2 causes of action: § Publication of Private Facts: • Rejected by the court because the accident was a matter of public concern and because it happened in public § Intrusion: • The press is considered part of the public and only gets the same access as the general public • Upheld this claim because the press does not have access to the crime scene while the general public is excluded; essentially, inside of the helicopter was a private moment o Bottom Line • The press is considered part of the "public" • If general public has access, the press does too • Press has no special privilege to access crime scenes and accidents that the general public is excluded from False Light • Dissemination of o Highly offensive false publicity about someone with knowledge of, or reckless disregard for, the falsity o Distortion: when info is omitted or used out of content o Fictionalization: addition of fictional material to actual events and individuals • First Amendment: Time, Inc. v. Hill o Public interest, public officials, public figures = NTY actual malice • This case established the fact that actual malice is required for a false light claim o Private persons = negligence • False Light in Florida o 2004 case against Pensacola News Journal o $18.28-million verdict in compensatory damages o Sought $50 million in actual damages and billions in punitive o Focus on Anderson's political influ ence o Article said he "shot and killed" his wife 10 years earlier o Two sentences later, story said authorities determined hunting accident o Attorneys agreed facts true - but claimed the paper SLANTED them, making it look line Anderson was a murderer • Florida Supreme Court decides… o Florida doesn't recognize "False Light" because: • It "duplicates existing torts without the attendant protections of the First Amendment" • Defamation by implication § This protects the press more than the False Light tort Class Fourteen (Chapter 5) — 2/25/16 Announcements: • Extra credit quiz in class today Update on the Erin Andrews case: • She's now suing the hotel for making it easier for the man to stalk her • He called the hotel and asked them for the room next to hers Appropriation • One who appropriates to his/her own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy • Unauthorized of commercial use of another's name or likeness • Really talking about two different interests: o A privacy interest o A publicity interest • Protects a person's property rights o Right of publicity • Advertisements • Look alikes and sound alikes o This is the loss of a commercial property • Usually this is done by celebri ties • They can sue for a loss of publicity rights by using their name/likeness • Most of the time to have a loss of publicity you have to have a publicity right to begin with • Right of privacy: the plaintiff is claiming a similar injury as a publication of private fact tort o A privacy right dies with the plaintiff (much like a defamation suit) • Most states say that publicity rights do not die with the person, and that the estate (including the descendants, etc.) can sue for a loss of publicity rights o This is how a celebrity's estate can sue someone for something o This does not apply once things become part of the public domain • Defenses: o Newsworthiness — Zacchini v. Scripps-Howard Broadcasting Co. • Zacchini had a stunt act where he shot himself out of a cannon • The news station broadcasted Zacchini's entire act (15 seconds) • The court said that although the paper had the FA right to broadcast it, by broadcasting the entire thing the broadcast had removed the incentive for people to go see the event, therefore redu cing his publicity o Consent • Consent Contract Agreements § Should be written § State the parties to the agreements § State the scope/duration of terms § Consideration (the legal term for payment) • Each party is getting something in return • You can't make a contract f or a promise/gift • With a valid contract, there has to be a mutual benefit to both parties • Appropriation lawsuits usually don't end in the appropriation being removed; however, when they settle out of court it is usually a condition for lesser money Appropriation in Florida • 2005, Lawsuit over "Perfect Storm" filed by family members of William Tyne, captain of the Andrea Gail o The man was lost at sea, he and his five crewmen were killed during a storm while out at sea o The sawsuit was filed by his wife a nd daughters • FL Supreme Court rules in favor of Warner Brothers (producers) • Florida Statute 540.08 prevents the use of a person's name or likeness to directly promote a product or service. Does not apply to publications, including motion pictures, which do not promote a product or service. o This protects artists' rights to produce things which represent true story events o Although there is an argument that movies are created to make money, the court said that this wasn't enough Rosa Parks v. OutKast • Song created by a music group, OutKast, called Rosa Parks • She sued the group saying that the group had used her name without her permission • She also sued under trademark law • Actual song lyrics: o “Ah ha, hush that fuss o Everybody move to the back of the bus o Do you wanna bump and slump with us o We the type of people make the club get crunk.” • Court's Translation: o Be quiet and stop the commotion o OutKast is coming back out (with new music so all other MCs (mic checkers, o rappers, Master of Ceremonies) step aside o Do you want to ride and hang out with us o OutKast is the type of group to make the clubs get hyped -up/excited • Her lawyer was successfully able to argue that OutKast had appropriated her name Intentional Infliction of Emotional Distress (IIED) • The defendant's conduct was intentional or reckless • The defendant's conduct was extreme or outrageous o "Has to go beyond the bounds of decency and that which is tolerated in a civilized community" o Another definition: "when something makes you stop and go, ' outrageous!'" • The defendant's conduct caused the plaintiff emotional distress • The emotional distress was severe Hustler Magazine v. Falwell (1986) o A ad for Campari, a liqueur o Jerry Falwell was a popular evangelist in the 80's o Ad: Jerry Falwell talks ab out his first time." o In small print at the bottom of the ad, it says "Ad parody —not to be taken seriously" o Campari had actually been running real advertisements with interviews with celebrities (laced with innuendos) about their "first time" trying the drink • Falwell sued for" o Libel • Also dismissed because the claim was clearly too outrageous to be true (parody) and • There was no actual malice o Invasion of privacy • Dismissed at the trial level because it wasn't true so there was no invasion of privacy o IIED • Jury awarded him $200,000 with damages • U.S. Supreme Court reversed opinion o Public figures/officials prove: in IIED cases, the plaintiff must • That the parody or satire amounted to statement of fact, not an opinion. • That it was a false statement of fact. • Actual malice 1. Knowledge of falsity, or 2. Reckless disregard for the truth o They said that when criticizing public figures, the plaintiff (the public figure) would have to prove actual malice, because it's still just a way to limit free speech —the speech that is protected opinions about public figures o VIDEO: People v. Larry Flynt (Movie clip from 1996) • Larry Flynt — the owner of Hustler Magazine


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