Mass Communication Law and Ethics

1997, in the Food Lion case, the same network was found liable by a jury to the tune of $1,400 in actual damages and $5.5 million in punitive damages (reduced to $315,000 by the judge) for secretly recording videotapes for a "PrimeTime Live" segment.

The one area where intrusion appears likely to create problems is computer technology, particularly the Internet. It is quite easy for an individual or corporation to compile information based on a consumer's visits to Web sites, without the person having any knowledge of such snooping, which is often perfectly legal. The compilation of electronic databases that contain highly personal information and that can be quickly accessed also poses some serious threats to individual privacy. Journalists are likely to see a backlash as abuses of such information appear, although they may not have been involved in such abuses. For example, in June 1998 U.S. Commerce Secretary William Daley told the audience at a 2-day Internet privacy conference that unless the industry did more to protect the privacy of online users who do business on the Internet, the government would be forced to enact more stringent regulations.

Appropriation has generally not been a major problem for journalists because the Bo Jacksons of the world are well rewarded by Nike and Pepsi-Cola for the commercial use of their name, image, or likeness. Unless the situation approaches that of Zacchini v. Scripps-Howard Publishing Co., it is highly unlikely that a plaintiff will be successful in a suit for appropriation in a news context. Consent is always the best insurance when a potential commercial context appears because newsworthiness is not a defense to appropriation.

Publication of private matters and false light will continue to be troublesome for the press. The conservative Rehnquist court is unlikely to broaden the constitutional privilege for these two torts and indeed can be expected to further restrict that and other defenses, such as newsworthiness and even consent, which is a weak shield anyway. When dealing with private matters, journalists should make sure there is a strong public interest to be served and, whenever possible, that they are dealing with public figures or public officials. Obviously all news stories and features cannot focus on public people, but reporters and editors must be wary of the traps when private individuals are involved because legislatures, the courts, and the public (from which those "reasonable persons" -- the jurors -- are drawn) firmly believe that privacy for ordinary citizens is being quickly eroded and that the mass media are responsible for some of this erosion.

Finally, the boundaries of false light are obscure but likely to become clearer in the future, especially if this still relatively new area of privacy becomes a hotbed of litigation. False light requires no defamation, but merely harm to an individual as a result of the publication of false information, which can include fictionalization. Thus, a suit that might be unsuccessful for libel could strike gold under false light.

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