by Daniel C. Barr, partner at Brown & Bain in Phoenix, e-mail at barr@brownbain.com

Presented at the Associated Press Managing Editors Conference

July 14-15, 1997

I. PRIVACY

The "right of privacy" was introduced 107 years ago in a Harvard Law Review article.

The press is overstepping in every direction the obvious bounds of propriety and of decency . . . . [M]odern enterprise and invention have, through invasions upon [man's] privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).

A. Publication of Private Facts

1. Elements:

a. Public Disclosure;

b. Of Private Facts;

c. Identification of Plaintiff;

d. Offensive to a Reasonable Person.

2. Examples of Successful Claims:

a. Publishing name and photograph of a woman with an unusual disease.

b. Publishing name of a teenage father in an article on teenage pregnancies.

c. Publishing the telephone number of a receptionist with a "sexy voice."

d. Photographing inmates of mental hospital showing identifiable patients naked, being force-fed, masturbating and attempting to ward off cameras.

3. Examples of Unsuccessful Claims:

a. The plaintiff, a victim of a sexual assault, sued The Florida Star for printing the name of a victim of a sexual offense, in violation of Florida state law. For the paper's "Police Reports" section, a reporter copied the local police report verbatim, including the victim's full name. The Supreme Court held that "Imposing damages on the Star for publishing [the victim's] name violates the First Amendment." In his dissent, Justice White observed that, after this decision, he doubted that "there remain any `private facts' which persons may assume will not be published in the newspapers or broadcast on television." The Florida Star v. B.J.F., 491 U.S. 524, 550 (1989) (White, J., dissenting).

b. Luther Haynes sued a publisher and author for a non-fiction book that invaded his privacy by publicizing personal facts. While the published facts were true, Judge Richard Posner recognized that privacy from embarrassment "is a mysterious but deep fact about human personality. It deserves and in our society receives legal protection." Publication of private facts is "concerned with the propriety of stripping away the veil of privacy with which we cover the embarrassing, the shameful, the tabooed, truths about us." In this case, however, the revelations were not intimate details of the plaintiff's life, but were about "heavy drinking, his unstable employment, his adultery, his irresponsible and neglectful behavior toward his wife and children." These, according to the court, fall short of the kind of revelations that the doctrine was intended to protect. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993).

c. Photograph of a football fan with an unzipped fly.

B. False Light

1. Elements:

a. Public Disclosure;

b. Which is False or Creates a False Implication;

c. Identification of the Plaintiff

d. Offensive to a Reasonable Person.

2. Examples of Successful Claims:

a. Unauthorized use of plaintiff's photograph to illustrate a story unrelated to plaintiff.

1. Use of file photo of a mother with her child to illustrate a story on a mother abandoning her child.

2. Use of photograph of spelling bee champion next to story on victims of child abuse.

b. Unauthorized use of plaintiff's name or picture in an unsavory publication that implies a willingness to appear in that publication.

1. Nude photos of plaintiff, taken by Playboy, but published in Hustler. Court found that to be seen voluntarily associated with Hustler was "degrading." Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985), cert. denied, 475 U.S. 1094 (1986).

3. Examples of Unsuccessful Claims:

a. Author of Interference: How Organized Crime Influences Professional Football, sued The New York Times after the newspaper published a review that said the book was marred by "too much sloppy journalism."

HELD: "The challenged statements in the Times review are supportable interpretations of [the book], and that as a matter of law the review is substantially true." Moldea v. New York Times Co., 22 F.3d 310, 319 (D.C. Cir.), cert. denied 115 S. Ct. 202 (1994).

b. Life Magazine published a "re-enactment" of a 1952 incident in which the plaintiff and his family were held hostage in their home by escaped convicts. After the incident, the family's ordeal was the subject of a book and a play. The Life article was based on the play-version of the crime. The plaintiff sued Life under a New York statute that prohibits using a name or picture without consent for purposes of trade or advertising.

HELD: "Constitutional protections for free expression preclude applying New York's statute to redress false reports of newsworthy matters absent proof that the publisher knew of their falsity or acted in reckless disregard of the truth." To hold otherwise, according to the Court, would discourage the press from exercising their constitutional guarantees. Only "calculated falsity" should enjoy no immunity. (Note: Richard M. Nixon argued the case for the plaintiff-appellee). Time, Inc. v. Hill, 385 U.S. 374 (1967).

c. In Arizona, no false light action may be maintained if the plaintiff is a public official and the article relates to the plaintiff's performance of his official duties. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343, 783 P.2d 781, 789 (1989).

C. Intrusion

1. Elements:

a. Unauthorized Intentional Intrusion or Prying into Plaintiff's Seclusion;

b. Offensive to a Reasonable Person;

c. As to a Private Matter;

d. Causing Anguish or Suffering.

Note: Publication is not a necessary element of the tort of intrusion.

2. Examples of Successful Claims:

a. Life Magazine published an article entitled "Crackdown on Quackery." The article was about the plaintiff, who "engaged in the practice of healing with clay, minerals, and herbs." To obtain information for the article, two Life employees went to the plaintiff's home posing as patients. One Life employee used a hidden camera to photograph the plaintiff with his "hand on the upper portion of [the other employee's] breast while he was looking at some gadgets and holding what appeared to be a wand in his right hand." The Life employees were also recording the session via a radio transmitter. Listening on the other end were Life employees, a prosecutor from the District Attorney's office and a State Department of Public Health investigator. The plaintiff was subsequently arrested for practicing medicine without a license.

HELD: The hidden mechanical contrivances are not "indispensable tools" of newsgathering. "The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office. It does not become such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime." Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).

b. Publication to the effect that plaintiff had a "sexy telephone voice" that resulted in hundreds of unwanted calls supported a cause of action for intrusion. Harms v. Miami Daily News, Inc., 127 So.2d 715 (Fla.Dist.Ct. App. 1961).

c. Walking onto a homeowner's property, peering into the home and photographing, without permission, the inside of the house.

d. Walking into, and photographing, area of office that is not accessible to the public or customers/clients/patients.

e. Breaking and entering.

f. Surreptitious eavesdropping.

3. Examples of Unsuccessful Claims:

a. Plaintiff, a High School basketball player, sued a University of Iowa basketball coach who had secretly recorded telephone recruiting conversations and then shared the recordings with an NCAA enforcement official and a University of Illinois attorney. The conversations concerned incentives that the University of Illinois was offering to entice the recruit into signing with that school. Because of this disclosure, the NCAA disciplined the University of Illinois for improper recruiting and the recruit was forced to sit out his freshman year of college basketball. The Court dismissed the suit because a "plaintiff fails to state a claim for invaded seclusion if the harm flows from publication rather than the intrusion." Thomas v. Pearl, 998 F.2d 447 (7th Cir. 1993) (emphasis added).

b. ABC's PrimeTime Live aired an undercover investigation of the sanitation problems in the commercial fish industry. For the report, an ABC employee secured a job at the plaintiff's retail grocery store and wore a hidden camera and microphone to work. While working, the undercover reporter recorded conversations with the manager who instructed her to lie about the freshness of the fish. After the report aired, the manager sued ABC alleging that the filming and recording violated the Wire and Electronic Communications Interception and Interception of Oral Communications Act.

HELD: "The critical question is why the communication was intercepted, not how the recording was ultimately used. In this case, ... defendants intended to expose sanitation problems in the commercial fish industry. Therefore, it is clear that defendants did not intercept and record plaintiff's conversations for the purpose of committing a crime or tort." Russell v. American Broadcasting Co., 1995 WL 330920 (N.D. Ill. May 31, 1995).

c. ABC's PrimeTime Live aired a segment about the "Desnick Eye Center." In order to set up an interview for the report, producers told Dr. Desnick that the segment was not an "ambush interview," and that it was not an "undercover" report. They assured him that the program would be fair and balanced. At this time, however, ABC despatched employees to the Eye Center with hidden cameras and microphones to pose as patients requesting eye exams. The report that aired was about the eye doctor's over charging patients and performing unnecessary cataract surgery.

HELD: "Telling the world the truth about a Medicare fraud is hardly what the framers of the [wiretapping] statute could have had in mind in forbidding a person to record his own conversations if he was trying to commit an `injurious act.'" Desnick v. American Broadcasting Cos., 44 F.3d 1345 (7th Cir. 1995).

D. Misappropriation

1. Elements:

a. Appropriation of Plaintiff's Identity or Persona;

b. For Use or Benefit of Defendant.

2. Examples of Successful Claims:

a. Cher gave an interview to a reporter for Us Magazine. At Cher's request, Us did not run the interview, but the reporter subsequently sold the interview to Star and Forum. These magazines each published portions of the interview. Cher sued Star and Forum for misappropriation, among other claims.

HELD: The First Amendment protected the magazines' publication of the interview of a public figure, so long as the publications were true or not published with actual malice. The court did find that Forum violated Cher's right of publicity because it falsely indicated that Cher endorsed their magazine. Cher v. Forum International, 692 F.2d 634 (9th Cir. 1982)

b. Ad agency hired a singer to sing "like Bette Midler" for a commercial after the "real Bette" rejected the offer to sing her song for the commercial.

HELD: A misappropriation claim could be sustained, even when California law prohibits use of "name, voice, signature, photograph or likeness" and the voice was not Midler's. Ms. Midler was awarded $400,000 in compensatory damages. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

c. Frito-Lay's SalsaRio Doritos commercial using a singer who sounded like Tom Waits resulted in a $2.6 million jury verdict for the Mr. Waits. Waits v. Frito-Lay Inc., 978 F.2d 1093 (9th Cir. 1992).

d. An advertisement for Samsung products used a robot dressed in a wig posing next to a "Wheel of Fortune" to convey the idea that their products would be around far into the future. Vanna White successfully sued for misappropriation.

HELD: Tort action protects against the misappropriation of a person's "identity." White v. Samsung Electronics of America, 989 F.2d 1512 (9th Cir. 1993).

3. Examples of Unsuccessful Claims:

a. USA Today used the New Kids on the Block's registered trademark to invite readers to participate in a survey.

HELD: Use of the mark was related to newsgathering even when the newspaper was using a commercial 900-number for the survey. New Kids on the Block v. News American Publishing Inc., 745 F. Supp. 1540 (C.D. Cal. 1990).

II. BREACH OF CONTRACT

A. Elements:

1. Promise of Confidentiality;

2. Consent Exceeded.

B. Examples of a Successful Claim:

1. Dan Cohen, director of an advertising campaign for a gubernatorial candidate, had documents that demonstrated that the Democratic party candidate for lieutenant governor had been arrested in 1969 for unlawful assembly and was convinced of petty theft in 1970. Cohen met with reporters and offered to reveal the information on the sole condition that his name not appear in "any material in connection with this." The reporters agreed to these terms and accepted the documents. The Minnesota Star and Tribune decided to run the story and to disclose Cohen's name.

HELD: Cohen has the right to enforce the confidentiality agreement and the Tribune's promise was a legal obligation and not merely an ethical obligation. Cohen v. Cowles Media Co., 445 N.W.2d 248 (Minn. Ct. App. 1989).

III. CONVERSION

A. Elements.

1. Intentional Exercise of Control over Another's Property.

2. That Seriously Interferes with that Person's Right to Control the Property.

3. Remedied by Payment for the Full Value of the Property.

B. Case Examples:

1. Two former employees of a United States senator entered his office without permission, removed some of his files, copied them, returned the originals and gave the copies to a newspaper columnist.

HELD: Not conversion because (a) original documents returned undamaged to plaintiff and (b) the senator's files did not contain any literary or scientific property, proprietary information or trade secrets. Pearson v. Dodd, 410 F.2d 201 (D.C. Cir.), cert. denied, 395 U.S. 947 (1969).

2. "Human cannonball" who performed at the Geauga County Fair noticed a reporter watching his performance and asked him to not film while he was being shot out of the cannon. The reporter, however, did film the performance and the "Human cannonball" act appeared on the eleven o'clock news.

The Plaintiff sued the broadcasting company that aired the performance for conversion.

HELD: "Conversion does not apply to any intangible right, and certainly it has never been held that one's countenance or image is `converted' by being photographed." Zacchini v. Scripps-Howard Broadcasting Co., 351 N.E.2d 454 (Ohio 1976). However, broadcasting company did misappropriate the plaintiff's act. Zucchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) "Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it." Id. at 578.

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A. Elements:

1. Intentional or Reckless Conduct;

2. Extreme or Outrageous Conduct;

3. Severe Emotional Distress;

4. Causation.

B. Examples of Unsuccessful Claims:

1. Hustler Magazine published an "advertisement parody" that portrayed Jerry Falwell engaged in "drunken incestuous rendezvous with his mother in an outhouse." Mr. Falwell sued Hustler for Intentional Infliction of Emotional Distress.

HELD: "The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

2. The San Antonio Express-News published an article concerning the local police departments undercover investigations targeting of sex offenders in public parks. The article, summarizing the operation, identified people whom had been arrested in these raids. Bennie Hogan, whose name appeared in that article for his indecent exposure arrest, committed suicide. His family sued under privacy, emotional distress and wrongful death theories.

HELD: The conduct was not "extreme or outrageous." To reach that level, the conduct must "go beyond all possible bounds of decency," so as to be "regarded as atrocious and utterly intolerable in a civilized community." The publishing of information contained in public records, such as police reports, is not outrageous as a matter of law. Hogan v. The Hearst Corp., No. 04-96-00326-CV (Tex. App., April 16, 1997).

V. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A. Elements:

1. Negligent Conduct;

2. Extreme and Outrageous Conduct (Not required in Arizona);

3. Severe Emotional Distress;

4. Causation.

B. Examples of Successful Claims:

1. Television show staged a practical joke in which an actor played an ambulance driver that led the plaintiff to believe that the person in the back of the ambulance, wrapped from head to toe in bandages, was the plaintiff's son. The district court for the District of Puerto Rico sustained the $10,000 jury verdict. Rosa v. Telemundo CATV, Inc., 907 F. Supp. 39 (D.P.R. 1995).

2. An NBC camera crew entered the home of a Los Angeles couple to film the Fire Department paramedics as they administered emergency care on the husband, who had just suffered a heart attack. The husband died later that evening. Without first obtaining any consent, the footage was shown on the NBC evening news and later for advertisements to promote an NBC program about paramedics. The plaintiff, the widow, saw the film of her husband's death weeks later. This event, and subsequent telephone calls from friends who had also watched the scene, severely disturbed her.

NBC continued to air the promotional footage even after the plaintiff and members of her family pleaded with them to stop showing it. The trial court held that the plaintiff did not have an actionable claim for negligent infliction of emotional distress. The California Court of Appeal, reversed.

HELD: "The obligation not to make unauthorized entry into the private premises of individuals like the [plaintiffs] does not place an impermissible burden on newsgatherers, nor is it likely to have a chilling effect on the exercise of First Amendment rights." The court observed that NBC's conduct in filming and broadcasting "without any regard for the subsequent protestations of both plaintiffs" to be an "alarming absence of sensitivity and civility." Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (Cal. Ct. App. 1986).

C. Examples of Unsuccessful Claims:

1. CBS's Street Stories, a weekly news magazine aired a segment in which a camera crew followed a Mobile Crisis Intervention Team, that provides emergency assistance to crime victims. During the segment, the crisis team and CBS crew entered the home of Yolanda Baugh responding to a 911 domestic violence call. Baugh's face was unobscured outside of the Bay Area affiliate and some cable TV subscribers in the Bay Area also saw the unobscured version of the program. After storming into her house and filming the crisis, Baugh consented to the cameras, but asked that it not be broadcast. She was told that the filming was for the District Attorney's office and was not told about the CBS program until the crew was about to leave. Baugh tried unsuccessfully to prevent the show from airing.

HELD: California's Uniform Single Publication Act bars the plaintiff's claim for negligent infliction of emotional distress. This Act was designed to give great deference to the First Amendment and to prevent many of the tort actions associated with mass communications. Thus, the negligent infliction of emotional distress claim is dismissed to the extend that it relies on the actual broadcast of the program. To the extent that the claim relies on the tortuous physical intrusion into her home, however, the claim remains viable. Baugh v. CBS, Inc., 828 F. Supp. 745 (1993).

VI. CONSPIRACY

A. Elements:

1. Entry into Agreement;

2. To commit a Tort;

B. Examples of Unsuccessful Claims:

1. Plaintiff, after being acquitted in the McMartin Preschool child molestation cases, sued several defendants including an ABC reporter for conspiring to deprive her of "her rights to due process, privacy, equal protection and a fair trial by encouraging or pursuing the prosecution without a factual basis." The plaintiff alleged that the reporter was attempting to sell a "sensational story." The Ninth Circuit affirmed the dismissal of the complaint, but remanded the case to give the plaintiff an opportunity to assert a Section 1983 claim for conspiracy to bring molestation charges against her.

ABC asked for reconsideration of this remand, arguing that this order opens the door to disgruntled subjects of media reports to pursue claims even when they would not otherwise be able to bring a defamation claim. The Ninth Circuit denied ABC's petition, but to address the media's fears that their First Amendment protection was being chipped away, the court added a line to their order: "Nothing in this opinion is intended to foreclose any claim of immunity from liability under Section 1983 that can be raised by any party to the amended complaint of the appellant." Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992).

2. Editors of small local newspapers agreed to refrain from publishing articles critical of a utility company and its executives in exchange for an advertising contract.

HELD: The First Amendment bars the district attorney from prosecuting the newspaper publisher for engaging in such conspiracy with the utility company. Sluys v. Gribetz, 22 Media L. Rep. 1392 (S.D.N.Y. 1994).

VII. INJURIOUS FALSEHOOD

A. Elements:

1. Falsity;

2. Injury;

3. Publication;

4. Of and Concerning -- Derogatory to the Plaintiff's Business in General;

5. Special Damages (Injury to Pecuniary Interests);

6. Malice;

a. Intent to Cause Harm.

b. Recklessness, Knowledge of Falsity or Similar Fault in Relation to Truth of the Publication.

c. Spite or Ill Will.

B. Examples of Unsuccessful Claims:

1. Random House published a book entitled Case Closed, which refutes the conspiracy theories surrounding the assassination of President John F. Kennedy. The book criticizes individual conspiracy theorists, including the plaintiff. To promote the sale of the book, Random House placed an ad in The New York Times using the names and photographs, along with quotations, of the six "conspiracy theorists." Underneath the ad was the caption: "GUILTY OF MISLEADING THE AMERICAN PUBLIC."

HELD: The photo and name used in the ad constituted "incidental use" and was therefore protected by the First Amendment. The use of the picture and name in the ad "prove[s] [the] worth and illustrates [the] content" of the book being advertised. Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995).

2. Golden Palace, a Washington D.C. restaurant, sued NBC for injurious falsehood after the network broadcast an unfavorable review.

HELD: The Injurious Falsehood count is dismissed when the plaintiff failed to plead special damages, which is required when alleging Injurious Falsehood. Golden Palace v. National Broadcasting Co., Inc., 386 F. Supp. 107 (D.D.C. 1974).

VIII. INTERFERENCE WITH CONTRACT

A. Elements:

1. Existence of a Valid Contract Between Plaintiff and Third Party;

2. Knowledge by Defendant of Contract;

3. Intentional and Improper Interference to Induce Nonperformance;

4. Nonperformance of Contract Damaging to Plaintiff.

B. Example of Unsuccessful Claim:

1. Manufacturer of infant heart monitors sued CBS after a news report revealed defects in the monitors.

HELD: "Challenged statements in broadcast, even if false, were not made with actual malice, and did not support recovery for tortuous interference ... ." Aequitron Medical, Inc. v. CBS, Inc., 1997 WL 139528 (S.D.N.Y. 1997).

2. Andy Rooney stated on "60 Minutes" that a product called "Rain-X" "didn't work."

HELD: Because plaintiff's defamation claims had been dismissed, plaintiffs could not maintain a claim for tortious interference. Unelko Corp. v. Rooney, 16 Media L. Rep. (BNA) 1737 (D. Ariz. 1989), aff'd 912 F.2d 1049 (9th Cir. 1990) cert. denied, 499 U.S. 961 (1991).

IX. NEGLIGENT MEDIA PUBLICATION

A. Elements:

1. Duty of Care;

2. Breach of Duty;

3. Foreseeability and Causation.

B. Example of Successful Claims:

1. Soldier of Fortune Magazine published "gun for hire" advertisements. Douglas Norwood, the subject of several attempts on his life, sued the magazine. He alleged that another defendant hired individuals to kill him through the magazine's advertisement.

HELD: The magazine did not have an absolute First Amendment privilege from liability for the injuries to the plaintiff. Norwood v. Soldier of Fortune Magazine, 651 F. Supp. 1397 (W.D. Ark. 1987).

C. Example of Unsuccessful Claim:

1. Hustler Magazine published an article that described a dangerous sex act involving "hanging" oneself in order to cut off blood supply. A juvenile attempted the act and was killed. His mother and a friend sued the magazine for "incitement." A jury awarded the mother $169,000 and the friend $13,000. The judgement subsequently was reversed. The court held that as a matter of law, "no fair reading of (the article) can make its content advocacy, let alone incitement to engage in the practice." The court did not reach the question, but suggested that written material could never produce an action for incitement. Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir. 1987).