indolent, column upon column is
of the European Convention similarly
filled with idle gossip, which can only
guarantees “the right to respect for his
be procured by intrusion upon the
private and family life, his home and his
domestic circle. …When personal
correspondence.”
Above: After Hustler owner Larry Flynt, left, published a lewd parody of Virginia televangelist Rev. Jerry Falwel , right, Falwel sued Flynt for libel.
The case reached the U.S. Supreme Court where Chief Justice Wil iam Rehnquist wrote that Falwel , as a public figure, must tolerate such attacks in order to give sufficient “breathing space” to the freedoms protected by the First Amendment.
[ 31 ]
[ a F r a m e w o r k f o r a F r e e P r e s s ]
On the national level, privacy rights
in libel, but on his own sense of violation
may be guaranteed by the constitution, by
of self. Many countries recognize some
statute, or by common law. Article 5 of the
or all of them.
Constitution of Brazil, for example, de-
Intrusion on seclusion most common-
clares, “The private life of an individual is
ly arises in the context of news gather-
natural and inviolable.” The Danish Crim-
ing. It includes not only physical trespass
inal Code guarantees the right to privacy
into another’s private space but also
by making it an offense to trespass into
eavesdropping, tape recording, or other-
private homes, to access private papers, to
wise intercepting private conversations
use mechanical devices to eavesdrop, to
without permission. Although the Su-
photograph or spy on individuals when on
preme Court once observed, “Without
private property, to communicate someone
some protection for seeking out the news,
else’s private facts to another person, or to
freedom of the press would be eviscerat-
intrude on another’s solitude after having
ed,” the high court has never exempted
been warned to leave him alone. Germany
journalists from generally applicable
guarantees “the right of personality” in its
laws that prohibit intrusion. The use of
Basic Law. And the right of privacy is guar-
hidden cameras, for example, is unlaw-
anteed in South Africa both in Section 14
ful in some states, and the Supreme
of the constitution and by common law.
Court let stand a Florida ruling that
Courts in the United States, however,
statutes prohibiting the use of concealed
were slow to recognize a right to privacy.
tape recorders do not violate the First
Although the Supreme Court has inter-
Amendment rights of the press.
preted the Fourth Amendment of the U.S.
In most, but not all, jurisdictions,
Constitution to protect individuals from
journalists are free to record or photo-
unreasonable searches and seizures, as
graph anything they can observe in a
well as other unwarranted intrusions by
public place. However, there are excep-
government agents, the amendment ap-
tions. Scottish author J. K. Rowling, of
plies to the government and not to actions
Harry Potter fame, successfully sued for
by other individuals. With the exception
invasion of privacy on behalf of her
of a handful of federal statutes that pro-
young son after she was photographed
hibit certain types of electronic intercep-
on an Edinburgh street while pushing
tion of private communications, U.S.
him in a stroller. A young Canadian
privacy law is almost exclusively the prov-
woman recovered damages from a Mon-
ince of the 50 states.
treal magazine that had photographed
By 1960, the American legal scholar
her sitting on a door stoop after, she
William Prosser had identified four dis-
claimed, her friends made fun of her.
tinct privacy torts:
Even though she was in public at the
� intrusion on seclusion;
time the picture was taken, the Supreme
� publication of private facts;
Court of Canada found that her right to
� depiction of another in a false light;
control the use of her image in the media
was guaranteed by the privacy clause in
� misappropriation or commercial use
of another’s name or image.
the Quebec human rights charter.
The publication of private facts tort
Some arise from common law. Others
presents a free-expression dilemma be-
are statutory. Not every jurisdiction rec-
cause it permits legal action to be brought
ognizes all four torts. But each is designed
against journalists who have published
to provide a remedy to an individual
the truth. Nevertheless, many countries
based not on his external reputation, as
recognize some version of this tort. The
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[ M e d i a L a w | H a n d b o o k ]
United States construes it narrowly,
example, and reporting details of
limiting actions to publication of inti-
the private life of an individual who,
mate facts highly offensive to a reason-
moreover, as in this case, does not
able person and of no legitimate public
exercise official functions. While in
concern. A public figure or public official
the former case the press exercises
will probably be held to have a dimin-
its vital role of “watchdog” in a
ished expectation of privacy.
democracy by contributing to
The challenge for any journalist is to
impart[ing] information and ideas
determine whether a court would deem
on matters of public interest,…it
a particular fact newsworthy. A news or-
does not do so in the latter case.
ganization’s decision to publish informa-
tion does not necessarily mean that it is
Broadly speaking, however, informa-
of public concern. One also must distin-
tion that is in the public domain—for ex-
guish between issues that are of legiti-
ample, details that can be obtained from
mate public interest and connecting
public records or proceedings—cannot
those issues with individuals. For exam-
be the basis of an invasion of privacy suit
ple, when the British tabloid newspaper
for publication of private facts. In 1989,
The Daily Mirror published photographs
the U.S. Supreme Court ruled that the
of Naomi Campbell leaving a Narcotics
victim of a sexual assault could not sue a
Anonymous meeting, the supermodel
newspaper that included her name as
was able to recover damages for invasion
part of a criminal incident roundup. Even
of privacy. The House of Lords concluded
though Florida, the state in which she re-
that although the general topic of sub-
sided, prohibited news organizations
stance abuse was a matter of public con-
from publishing the names of rape vic-
cern, Campbell’s addiction and treatment
tims, the high court found that because
were not.
the newspaper had obtained the infor-
A more extreme example involved
mation legally—from a police report form
Princess Caroline von Hannover of Mo-
that had been inadvertently made avail-
naco, who claimed that publication of
able in the sheriff’s department press
photographs depicting her going about
room—it could not be held liable for ac-
ordinary activities, including horseback
curately reporting the information. Sim-
riding, shopping, and skiing, violated
ilarly, individuals who consent to the
her privacy under German law. The Ger-
release of information, or who affirma-
man courts rejected her claims, but in
tively disclose it themselves, generally
2004, the European Court of Human
cannot complain if it is published.
Rights upheld them, finding that her
The tort of false-light invasion of pri-
rights as guaranteed by Article 8 of the
vacy is something of a legal anomaly and
European Convention on Human Rights
is not universally embraced. A few coun-
had been violated. The court acknowl-
tries, such as Hungary and South Africa,
edged that Von Hannover is a public fig-
allow actions for publication of false and
ure but ruled the photographs involved
misleading information, but only about
no matter of general concern:
two-thirds of American states recognize
A fundamental distinction must be
the tort. Similar to libel, false light al-
made between reporting facts—
lows individuals to sue for depictions that
even controversial ones—capable of
imply inaccurate, but not necessarily de-
contributing to a debate in a demo-
famatory, facts. These may arise in the
cratic society relating to politicians
context of embellishment or fictionaliza-
in the exercise of their functions, for
tion, such as in a docudrama or other
[ 33 ]
[ a F r a m e w o r k f o r a F r e e P r e s s ]
dramatization of a true story. But many
Limits on Government
false-light cases arise from the publica-
Licensing of Journalists and News
tion of photographs or videotape coupled
Organizations
with misleading captions, headlines, or
stories. For example, in 2002, an actor
Mandatory licensing of reporters has
been justified as a means of ensur-
whose photograph appeared on the cover
ing that only qualified individuals en-
of Playgirl successfully sued the maga-
gage in journalism and of keeping
zine in federal court in California by ar-
professional standards high. Some inter-
guing that the combination of the picture
national organizations have advocated
and the headlines created the false im-
licensing to protect journalists from gov-
pression that nude photographs of him
ernment harassment or harm. But when
appeared inside.
a government asserts authority to deter-
Appropriation of an individual’s name
mine who can and cannot cover the news,
or image for commercial purposes is re-
it claims, says Leonard Sussman of Free-
garded in many jurisdictions as essen-
dom House, “a license to censor.” The
tially a proprietary right, comparable to
lack of a license can provide the pretext
trademark or copyright. Others consider
for arresting journalists or expelling
it an extension of the right of personali-
them from a country, and regimes can
ty. As an Irish Law Reform Commission
arbitrarily withhold licenses from report-
report put it:
ers whose work they wish to suppress. As
Where the person does not consent
the 1980 International Commission for
to such use of the photograph, she
the Study of Communication Problems,
or he may feel offended and embar-
also known as the MacBride Commission
rassed simply because they dislike
report to UNESCO, concluded, “Licens-
publicity or because they dislike
ing schemes might well lead to restric-
being associated with the product.
tive regulations governing the conduct of
In such cases, the protected inter-
journalists; in effect, protection would be
est is not necessarily proprietary or
granted only to those journalists who
commercial. It is human dignity.
had earned official approval.” In 1985,
the Inter-American Court of Human
China, Australia, Austria, Canada,
Rights ruled a Costa Rican journalist-
Germany, and France are among the
licensing statute contrary to the Ameri-
countries recognizing some variation of
can Convention on Human Rights and,
this tort. In Italy, Article 41(2) of the con-
by extension, all human rights conven-
stitution permits individuals to commer-
tions, “insofar as it denied some persons
cially exploit the image of another person,
access to the full use of the news media
as long as consent is first obtained. In the
as a means of expressing themselves or
United States, the tort is limited to unau-
imparting information.”
thorized uses in advertisements or prod-
Mandatory membership, certification,
uct endorsement. For example, the Texas
or educational requirements can prevent
appropriation statute, (known as the
individuals from gathering and dissemi-
Buddy Holly Act because it was enacted
nating information and deprive others of
in response to exploitation of the deceased
the opportunity to receive it. Principle 8
singer’s name and image,) specifically ex-
of the Declaration of Chapultepec draws
empts any use in a play, book, film, radio
the logical conclusion: “The membership
program, magazine or newspaper article,
of journalists in guilds, their affiliation
political material, or work of art. Paro-
to professional and trade associations
dies or satirical works are also protected.
and the affiliation of the media with
[ 34 ]
[ M e d i a L a w | H a n d b o o k ]
business groups must be strictly volun-
able First Amendment right to
tary.” Mandatory licensing or affiliation
broadcast comparable to the right
requirements for journalists remain in
of every individual to speak, write
place in many countries in Africa, Asia,
or publish. …It would be strange if
and the Middle East. Although in June
the First Amendment, aimed at pro-
2009, the Supreme Court in Brazil abol-
tecting and furthering communica-
ished a legal regulation requiring a uni-
tions, prevented the Government
versity degree and membership in a
from making radio communication
union, nine Latin American countries
possible by requiring licenses to
continue to impose some requirements.
broadcast and by limiting the
And in Zimbabwe, journalists challenged
number of licenses so as not to
the establishment of a media accredita-
overcrowd the spectrum.
tion authority empowered to assess li-
censing fees, which the journalists
U.S. law authorizes FCC control over
claimed were grossly unreasonable and
some aspects of broadcast station owner-
restrictive of freedom of expression.
ship. It may prohibit the concentration of
Licensing conditions news organiza-
many outlets in the hands of a single en-
tion operations upon government approv-
tity or limit cross-ownership, where one
al. It affords another means of controlling
company controls multiple media plat-
the press and promoting self-censorship.
forms in a single market. Nevertheless,
Article 10 of the European Convention on
the FCC’s jurisdiction over broadcasters’
Human Rights guarantees freedom from
content decisions is subject to the First
“interference by public authority” but
Amendment, and in recent years has
has never been interpreted to prohibit li-
been limited primarily to regulating in-
censing requirements. Nevertheless, li-
decency and to requiring broadcasters to
censing requirements can, under some
provide equal opportunities for opposing
circumstances, also be viewed as censor-
candidates for public office to appear on
ship and, accordingly, as incompatible
the airwaves during the period immedi-
with freedom of expression.
ately preceding an election.
The fairness doctrine, which required
Additional Government
broadcast licensees to report on contro-
Regulation
I
versial issues of public importance in
n many jurisdictions, the government’s
their communities and to provide re-
power to regulate content differs be-
sponsible representatives of opposing
tween print and broadcast media. In the
views a reasonable opportunity to reply,
United States, the First Amendment is
was repealed by the FCC in 1987. At that
held to prohibit any government licens-
time, the commission concluded that be-
ing of newspapers and magazines, but
cause of the explosion of new media out-
the Federal Communications Commis-
lets, the doctrine was no longer necessary
sion (FCC) has exclusive authority to
to serve the public interest in receiving
license use of the electromagnetic spec-
“diverse and antagonistic sources of in-
trum, which is regarded as a scarce pub-
formation.” The commission added that:
lic resource. As the Supreme Court
The intrusion by government into
observed in 1969:
the content of programming occa-
Where there are substantially more
sioned by the enforcement of doc-
individuals who want to broadcast
trine unnecessarily restricts the
than there are frequencies to allo-
journalistic freedom of broadcasters
cate, it is idle to posit an unabridge-
…and actually inhibits the presen-
[ 35 ]
[ a F r a m e w o r k f o r a F r e e P r e s s ]
tation of controversial issues of
read, see or hear the matter contained or
public importance to the detri-
embodied in it.” The late U.S. Supreme
ment of the public and in degrada-
Court Justice Potter Stewart, when asked
tion of the editorial prerogatives of
to define obscenity, famously observed, “I
broadcast journalists.
know it when I see it.”
In most countries, publishing or dis-
Taxation, too, presents issues. Tax
tributing obscene materials is a criminal
laws that apply to all for-profit corpora-
offense. Prior restraints on their distribu-
tions are generally acceptable, while
tion are often considered constitutional.
those singling out the news media for
Many laws seek to protect children from
special obligations often are deemed un-
both exploitation and exposure to porno-
constitutional prior restraints on speech.
graphic materials. However, national and
By the same token, restrictions on the in-
international freedom of expression guar-
ternational circulation of news media
antees generally protect the access rights
products violate both Article 10 of the
European Convention on Human Rights
of consenting adults, except for certain
and Article 19 of the International Cov-
specific categories. In Germany, the crimi-
enant on Civil and Political Rights, which
nal code prohibits distribution of pornog-
guarantee the free flow of information
raphy that depicts abuse of children. In
and ideas “regardless of frontiers.”
Sweden, some images of sexual violence
An extensive discussion of licensing
can be banned. Child pornography, wheth-
and regulatory schemes is beyond the
er or not legally obscene, enjoys no consti-
scope of this book. In general, it is legiti-
tutional protection in the United States.
mate to require news organizations to
Many countries forbid the sales of any por-
abide by corporate laws and regulations
nography to those under age 18.
of general applicability (such as register-
In mature democracies, obscenity laws
ing the names and addresses of those le-
usually raise no significant concerns for
gally responsible for the organization’s
mainstream news organizations. But in
operations). Any government regulation
some countries, outdated statutes still rec-
of media operations or content decisions
ognize offenses like “conspiracy to corrupt
should be transparent; subject to public
public morals” or “outraging public decen-
scrutiny, participation, and oversight;
cy.” Vaguely worded laws may proscribe
and no more extensive than necessary to
indecent or obscene material without de-
promote identified public interests.
fining it, or they may lack qualifying lan-
guage like that adopted by the U.S.
Only Narrow and Carefully
Supreme Court in 1973, which limited ob-
Tailored Restrictions on
scenity to those works that, “taken as a
Indecent or Obscene Speech
P
whole, lack serious literary, artistic, politi-
robably the biggest challenge to eval-
cal or scientific value.” In these situations,
uating government controls on inde-
journalists may run afoul of the laws if
cent or obscene speech is defining the
they publish sexually explicit, but news-
terms “indecent” and “obscene.” The
worthy, material. Or the obscenity laws
United Kingdom’s Obscene Publications
may be used as a pretext to censor other
Act of 1959 (as amended), for example,
material. For example, in Vietnam, the
provides that material shall be deemed
government claims that it filters out Inter-
obscene if “the effect…is, if taken as a
net access only to sexually explicit mate-
whole, such as to tend to deprave and cor-
rial. Yet a 2007 report by the Internet
rupt persons who are likely, having re-
watchdog group OpenNet Init