Privacy: past and present; just how much information about people's private lives can a magazine publish without fear of reprisal from the courts

Folio: The Magazine for Magazine Management, May, 1988 by Slade Metcalf

Privacy: Past and present

Donna Rice. The name will be forever linked to the possible torpedoing of a prominent public service career. Whether or not you believe that Gary Hart brought the entire debacle upon himself, the intense and unrelenting coverage of Hart's romancing of Ms. Rice has had at least one ancillary benefit: It has forced magazine editors and publishers to focus on the propriety of reporting on very private matters concerning politicians and other public figures. The historic yet unstated protection that the press had accorded people in public life has substantially eroded over the past 10 years. Writers who would never disclose the dalliances of politicians or the sexual orientations of elected officials now routinely discuss them as if they were as important as the official's stand on toxic waste disposal or nuclear disarmament.

In addition to the question of the ethical or editorial suitability of covering these intimate details is the issue of a magazine's legal liability in disclosing these private facts, whether they be true or false. In deciding whether to publish a particular article that implicates privacy rights, a magazine's editorial staff should weigh both the possible legal liability and the ethical considerations.

Courts in this country have widely adopted the four-part concept of a legal claim commonly referred to as "invasion of privacy." Those four categories are 1) intrusion; 2) publicity given to private facts; 3) false light; and 4) appropriation.

Intrusion, the first branch of the privacy theory, consists of conduct by a journalist that physically intrudes on the security and sensitivity of a person. Examples of intrusive conduct include surreptitious spying on a subject by looking through a house window while standing on private property; bugging telephones or eavesdropping on private conversations by placing a bug in a house; or closely and repeatedly following the subject of an article. For example, had The Miami Herald reporter climbed through a window in Gary Hart's Georgetown house, he might well then have been liable on an intrusion theory (as well as liable for criminal trespass and breaking and entering).

Making private public

The second branch of the privacy theory is often referred to as "publicity given to private facts." People who are not lawyers usually think of this kind of claim when they hear the words "invasion of privacy." The "private facts" claim consists of 1) the public dissemination of intimate but true details about a person's life, and 2) facts that are highly offensive to a reasonable person. Some courts have required the "intimacy" aspect of the facts to be so personal that there is little conceivable public interest in their disclosure. The basis for this rather strict limitation on the viability of the "private facts" claim is the expansive interpretation accorded to First Amendment rights of freedom of speech and freedom of the press.

As an example, a Federal court in California dismissed a "private facts" claim brought by a talented surfer and based on a profile of him in Sports Illustrated that related exploits of his such as throwing himself down a flight of stairs; extinguishing a cigarette in his mouth; eating spiders and other insects; and biting off the cheek of a man during a gang fight. The court ruled that no reasonable juror could conclude that these facts were highly offensive.

Although courts historically have limited the impact of the "private facts" theory, there appears to be a trend toward judicial expansion of individuals' privacy rights. That trend does not yet include protection of public persons (such as Gary Hart); however, people who are friends of public figures and whose private lives are intrusively displayed to the community may be able to assert a viable claim.

Increasing privacy rights

One case that is illustrative of the trend toward greater protection of privacy rights arose in the early 1980s. A South Carolina newspaper published a story about the problem of teenage pregnancies. The article identified by name the teenage father of an illegitimate child. Although the reporter spoke by phone to the young father, she never asked the boy for permission to use his name in the story. The South Carolina Supreme Court upheld a jury verdict in favor of the boy (who sued for invasion of privacy) in the amount of $1,500 in actual damages and $25,000 in punitive damages. The court ruled that the jury was entitled to decide that the boy's identity in the story was not a matter of legitimate public or general interest. The court said: "Public or general interest does not mean mere curiosity, and newsworthiness is not necessarily the test." The U.S. Supreme Court refused to hear the case.

A similar case arose in North Carolina when The Salisbury Post published an article in July 1984 about a woman and her and her husband's search for the woman's daughter years after she gave the daughter up for adoption. The couple, with the assistance of the paper, located the daughter, who had been adopted by the woman who cared for her as an infant. The newspaper's publication of the daughter's identity and her background caused the daughter to sue the paper and its reporter for invasion of privacy. Last year, a North Carolina appellate court ruled that a jury could determine whether the information it disclosed was 1) newsworthy; 2) private in that the details were not generally known in the community; and 3) highly offensive to a reasonable person of ordinary sensibilities. Juries usually decide these kinds of issues against the media.