BILL OF RIGHTS PRIVACY AND DEFAMATION LAWSSun, January 8, 2012 - 5:36 PM
Reference Main articles below
What is the Bill of Rights?
Personal Right to Privacy in the U.S.
The personal right to privacy in the U.S. is a doctrine that developed Supreme Court of amendments. Discover how Supreme Court decisions have formed the personal right to privacy in the United States with tips from a certified civil mediator in this free video series on entertainment and media law. www.ehow.com/video_49936...privacy.html
Online Privacy Defamation Law
Privacy laws of the United States
Privacy law refers to the laws that deal with the regulation of personal information about individuals that can be collected by governments and other public as well as private organizations and its storage and use.
Privacy laws are considered in the context of an individual's privacy rights or reasonable expectation of privacy.
Classification of privacy laws
Privacy laws can be broadly classified into:
General privacy laws have an overall bearing on the personal information of individuals and affect the policies that govern many different areas of information.
Specific privacy laws
These laws are designed to regulate specific types of information. Some examples include:
Health privacy laws
Financial privacy laws
Online privacy laws
Communication privacy laws
Information privacy laws
Privacy in one's home
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Defamation and Privacy Under the First Amendment
15 Vand. L. Rev. 1093 (1961-1962)
Defamation and the Right of Privacy ; Wade, John W.
Fourth Amendment to the United States Constitution
All people have the right to their own privacy and to live without defamation
INVASION OF PRIVACY LAWS
Invasion of privacy can encompass a wide variety of criminal behavior but usually refers to a person’s right to be left alone by the media. Invasion of privacy also refers to a person’s right to be left alone in the privacy of his/her home or other private area. This includes the person’s private property and personal space.
Invasion of privacy lawsuits are often filed against tabloids, newspapers and other media companies rather than private citizens. However, there have been known cases where the privacy of one individual was invaded by another individual.
Defamation refers to the act of having your name and character tarnished due to slander or libel. Libel is a legal term used to describe written defamation. Slander is a legal term used to describe spoken defamation. Libel and slander are both against the law. There is a big difference when it comes to truth and defamation. This line is crossed all the time; however, this does not make it right. You have the right to live your life free of defamation and to protect your character and reputation from lies.
STAND UP FOR INJUSTICE
You may think that you can’t do anything about invasion of privacy and defamation but this is not the case. Everyone is entitled to protection of their privacy, regardless of their name or their story.
PROTECTING YOUR PRIVACY
We all have basic rights that often need to be protected. We have the right to fair treatment; we have the right to freedom of speech and freedom of religion; and we have the right to our own privacy.
Internet web false light invasion of privacy and defamation Libel laws
About Defamation and Invasion of Privacy
Legal Action against Privacy Invasion and Defamation
Areas of the law regarding defamation and invasion of privacy contain important protections against such unethical behavior. In this information age, these actions have become even more pronounced and because of the vast communication frontier that the Internet presents and the wealth of information readily available through it, you may find yourself in need of help
You do not have to stand idly by while your personal data is mined or your good name is dragged through the mud.
While we are blessed to enjoy strong rights as outlined in the U.S. Constitution, Bill of Rights and years of legislation and judicial precedent, there can exist a fine line between where one person's rights end and another one's begin. You may be eligible to seek restitution and damages against parties who are involved in such behavior as:
Defamation - painting a person or entity in a negative light through untrue statements, including slander (transitory statements) and libel (written, broadcast or published words).
Misrepresentation of the character, beliefs, activity or history of a person (false light)
Release of confidential records or information for which a client owns privilege (public disclosure of private facts)
Using of one's name or likeness in an unauthorized public manner
Physical or electronic penetration into one's private home, space or information (intrusion of solitude)
Personal Right to Privacy in the U.S.
The personal right to privacy in the U.S. is a doctrine that developed through the Supreme Court and a combination of amendments. Discover how Supreme Court decisions have formed the personal right to privacy in the United States with tips from a certified civil mediator in this free video series on entertainment and media law.
Main article: Privacy laws of the United States
The idea of a right to privacy was first addressed within a legal context in the United States. Louis Brandeis (later a Supreme Court justice) and another young lawyer, Samuel D. Warren, published an article called 'The Right to Privacy' in the Harvard Law Review in 1890 arguing that the constitution and the common law allowed for the deduction of a general "right to privacy".
Their project was never entirely successful, and the renowned tort expert Dean Prosser argued that "privacy" was composed of four separate torts, the only unifying element of which was a (vague) "right to be left alone."
These elements were appropriating the plaintiff's identity for the defendant's benefit
placing the plaintiff in a false light in the public eye
publicly disclosing private facts about the plaintiff
unreasonably intruding upon the seclusion or solitude of the plaintiff
Privacy laws of the United States
From Wikipedia, the free encyclopedia
United States privacy law embodies several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain. Public figures have less privacy, and this is an evolving area of law as it relates to the media.
The essence of the law derives from a right to privacy, defined broadly as "the right to be let alone." It usually excludes personal matters or activities which may reasonably be of public interest, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right.
These include the Fourth Amendment right to be free of unwarranted search or seizure, the First Amendment right to free assembly, and the Fourteenth Amendment due process right, recognized by the Supreme Court as protecting a general right to privacy within family, marriage, motherhood, procreation, and child rearing.
Brandeis and Warren Article
The development of the doctrine regarding the tort of "invasion of privacy" was largely spurred by the Warren and Brandeis article, "The Right to Privacy". In it, they explain why they wrote the article in its introduction: "Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." More specifically, they also shift their focus on newspapers:
"The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers....
The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."
They then clarify their goals: "It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is."
Warren and Brandeis write that privacy rights should protect both businesses and private individuals. They describe rights in trade secrets and unpublished literary materials, regardless whether those rights are invaded intentionally or unintentionally, and without regard to any value they may have.
For private individuals, they try to define how to protect "thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts." They describe such things as personal diaries and letters needing protection, and how that should be done: "Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract."
They also define this as a breach of trust, where a person has trusted that another will not publish their personal writings, photographs, or artwork, without their permission, including any "facts relating to his private life, which he has seen fit to keep private." And recognizing that technological advances will become more relevant, they write:
"Now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation."
Modern tort law
In the United States today, "invasion of privacy" is a commonly used cause of action in legal pleadings. Modern tort law includes four categories of invasion of privacy:
Intrusion of solitude: physical or electronic intrusion into one's private quarters.
Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
Appropriation: the unauthorized use of a person's name or likeness to obtain some benefits.
Intrusion of solitude and seclusion
Intrusion of solitude occurs where one person exposes another to unwarranted publicity. In a famous case from 1944, author Marjorie Kinnan Rawlings was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek. The Florida Supreme Court held that a cause of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no actual damages.
Intrusion upon seclusion occurs when a perpetrator intentionally intrudes, physically, electronically, or otherwise, upon the private space, solitude, or seclusion of a person, or the private affairs or concerns of a person, by use of the perpetrator's physical senses or by electronic device or devices to oversee or overhear the person's private affairs, or by some other form of investigation, examination, or observation intrude upon a person's private matters if the intrusion would be highly offensive to a reasonable person.
Hacking into someone else's computer is a type of intrusion upon privacy, as is secretly viewing or recording private information by still or video camera. In determining whether intrusion has occurred, one of three main considerations may be involved: expectation of privacy; whether there was an intrusion, invitation, or exceedance of invitation; or deception, misrepresentation, or fraud to gain admission. Intrusion is “an information-gathering, not a publication, tort…legal wrong occurs at the time of the intrusion. No publication is necessary.”
Restrictions against the invasion of privacy encompasses journalists as well:
“The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course 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.”
Public disclosure of private facts arises where one person reveals information which is not of public concern, and the release of which would offend a reasonable person. "Unlike libel or slander, truth is not a defense for invasion of privacy." Disclosure of private facts includes publishing or widespread dissemination of little-known, private facts that are non-newsworthy, not part of public records, public proceedings, not of public interest, and would be offensive to a reasonable person if made public.
Main article: False light
False light is a legal term that refers to a tort concerning privacy that is similar to the tort of defamation. For example, the privacy laws in the United States include a non-public person's right to privacy from publicity which puts them in a false light to the public; which is balanced against the First Amendment right of free speech.
False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being."] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading then a tort of false light might have occurred.
The specific elements of the Tort of false light vary considerably even among those jurisdictions which do recognize this tort. Generally, these elements consist of the following:
A publication by the Defendant about the Plaintiff;
made with actual malice (very similar to that type required by New York Times v. Sullivan in "Defamation" cases);
which places the Plaintiff in a false light; AND that would be highly offensive (i.e., embarrassing to reasonable persons).
Thus in general, the doctrine of false light holds:
"One who gives publicity to a matter concerning another before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
For this wrong, money damages may be recovered from the first person by the other.
At first glance, this may appear to be similar to defamation (libel and slander), but the basis for the harm is different, and the remedy is different in two respects. First, unlike libel and slander, no showing of actual harm or damage to the plaintiff is usually required in false light cases, and the court will determine the amount of damages. Second, being a violation of a Constitutional right of privacy, there may be no applicable statute of limitations in some jurisdictions specifying a time limit within which period a claim must be filed.
Consequently, although it is infrequently invoked, in some cases false light may be a more attractive cause of action for plaintiffs than libel or slander, because the burden of proof may be less onerous.
What does "publicity" mean? A newspaper of general circulation (or comparable breadth) or as few as 3–5 people who know the person harmed? Neither defamation nor false light has ever required everyone in society be informed by a harmful act, but the scope of "publicity" is variable. In some jurisdictions, publicity "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."
Moreover, the standards of behavior governing employees of government institutions subject to a state or national Administrative Procedure Act (as in the United States) are often more demanding than those governing employees of private or business institutions like newspapers. A person acting in an official capacity for a government agency may find that their statements are not indemnified by the principle of agency, leaving them personally liable for any damages.
Example: If someone's reputation was portrayed in a false light during a personnel performance evaluation in a government agency or public university, one might be wronged if only a small number initially learned of it, or if adverse recommendations were made to only a few superiors (by a peer committee to department chair, dean, dean's advisory committee, provost, president, etc.). Settled cases suggest false light may not be effective in private school personnel cases, but they may be distinguishable from cases arising in public institutions.
Constitutional basis for right to privacy
Although the word "privacy" is actually never used in the text of the United States Constitution, there are Constitutional limits to the government's intrusion into individuals' right to privacy. This is true even when pursuing a public purpose such as exercising police powers or passing legislation. The Constitution, however, only protects against state actors. Invasions of privacy by individuals can only be remedied under previous court decisions.
The Fourth Amendment to the Constitution of the United States ensures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
However these rights have been changed by modern court rulings. One such ruling which allowed police without a warrant to place a tracking device on a suspect's automobile and follow him without his knowledge.
The First Amendment provides a right to free assembly, broadening privacy rights. The Ninth Amendment declares that the fact a right is not explicitly mentioned in the Constitution does not mean that the government can infringe on that right. The Supreme Court recognized the Fourteenth Amendment as providing a substantive due process right to privacy.
This was first recognized by several Supreme Court Justices in Griswold v. Connecticut, a 1965 decision protecting a married couple's rights to contraception. It was recognized again in 1973 Roe v. Wade which invoked the right to privacy to protect a woman's rights.
Article 1, §1 of the California Constitution articulates privacy as an inalienable right.
CA SB 1386 expands on privacy law and guarantees that if a company exposes a Californian's sensitive information this exposure must be reported to the citizen. This law has inspired many states to come up with similar measures.
California's "Shine the Light" law (SB 27, CA Civil Code § 1798.83), operative on January 1, 2005, outlines specific rules regarding how and when a business must disclose use of a customer's personal information and imposes civil damages for violation of the law.
California's Reader Privacy Act was passed into law in 2011. The law prohibits a commercial provider of a book service, as defined, from disclosing, or being compelled to disclose, any personal information relating to a user of the book service, subject to certain exceptions. The bill would require a provider to disclose personal information of a user only if a court order has been issued, as specified, and certain other conditions have been satisfied. The bill would impose civil penalties on a provider of a book service for knowingly disclosing a user's personal information to a government entity in violation of these provisions.
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