Each Friday we will feature an article from our good friends at The Legal Blitz. Please enjoy the following piece and check out The Legal Blitz when you get a chance!
For the first time in a long time, Tiger Woods is entering the Masters coming off a win, and feeling good about his golf game. Woods’ golf game, and life were turned upside down after crashing his car Thanksgiving weekend in 2009. The crash was followed by accusations of continual infidelity with several women. A week later, US Weekly released a voicemail message left by Woods to one of his alleged mistresses. Throughout the relentless media coverage, Woods insisted on his family’s right to privacy. He even chastised the press for invading this right during hiatus from golf. He said,
“I have always tried to maintain a private space for my wife and children. They have been kept separate from my sponsors, my commercial endorsements. When my children were born, we only released photographs so that the paparazzi could not chase them. However, my behavior doesn’t make it right for the media to follow my two-and-a-half-year-old daughter to school and report the school’s location. They staked out my wife and they pursued my mom. Whatever my wrongdoings, for the sake of my family, please leave my wife and kids alone.”
While Woods certainly had the platform to insist on his privacy, did he have a legal remedy? Could he have sued the media outlets that released the intimiate details of his life to an eager mass audience?
The Legal Blitz asked Professor Patricia Sanchez Abril those same questions. Professor Abril teaches in the Business Law Department at the University of Miami’s School of Business Administration. She also wrote the article, “A Simple, Human Measure of Privacy”: Public Disclosure of Private Facts in the World of Tiger Woods. (10 Conn. Pub. Int. L.J. 385)
Professor Patricia S. Abril
After Tiger Woods’ accident he wrote a statement to the media which said, “No matter how intense curiosity about public figures can be, there is an important and deep principle at stake which is the right to some simple, human measure of privacy.” As a legal principle, is Woods correct?
The “important and deep principle” that Tiger is invoking is not a legal one, but rather an ethical or dignitary one. He was pleading to be left alone, even though he (and his lawyers) certainly knew there was nothing they could do to stop the gossip train. His pleas echo those of the British celebrities currently testifying against invasive tabloid practices such as phone hacking. The difference, of course, is that there is no evidence that the press obtained the stories of Tiger’s infidelities in a surreptitious or illegal manner.
Discuss the friction between the “invasion of privacy tort” and the first amendment?
The tort of public disclosure of private facts provides redress for the unwarranted publication of truthful, private facts that are non-newsworthy and offensive to the reasonable person. The tort is an outgrowth of an 1890 Harvard Law Review article by Samuel Warren and Lewis Brandeis in which the two complained of the privacy invasions occurring at the hands of the yellow press armed with new technologies (such as the camera). The First Amendment, of course, generally prohibits the government from silencing the expression of truthful information either by direct regulation or through the authorization of private lawsuits. As you can imagine, there’s friction between the two, prompting some legal scholars to argue that the public disclosure tort’s threat to freedom of expression renders it unconstitutional.
An open question remains as to “whether liability can constitutionally be imposed for . . . private facts [other than public records] that would be highly offensive to a reasonable person and that are not of legitimate concern.”[1] The Supreme Court shed some light in a 1989 case, Florida Star v. B.J.F.[2] In this case, a newspaper named The Florida Star published the name of a sexual assault victim in apparent contravention of a Florida statute that prohibited the publication of the name of a victim of a sexual offense. A Florida Star reporter-trainee had obtained the victim’s name from a police report that was made available to him while in the Sheriff’s Department pressroom. The newspaper then published the name inadvertently and contrary to its own internal policy. The victim sued the newspaper for negligently violating the statute and a jury awarded both compensatory and punitive damages, which were upheld on appeal. The Supreme Court reversed, holding that the award was inconsistent with the First Amendment for several reasons. First, the newspaper had obtained the supposedly private information (the name) in a lawful manner. The Supreme Court was unwilling to impose liability for truthful information legitimately acquired, and available to the public. Second, the Court concluded that imposing liability on the Florida newspaper did not “further a state interest of the highest order,”[3] as the punishment of truthful, lawfully-obtained information should in order to be considered constitutional. In sum, Florida Star held that punishment for the publication of truthful, lawfully-obtained information is only constitutional when narrowly tailored to a state interest of the highest order.
How have courts drawn the line between legitimate news reporting and invasions of privacy?
The public disclosure tort solely protects information that is not ‘newsworthy’ or ‘of legitimate public concern.’ It defines “legitimate public concern” rather circularly as “matters of the kind customarily regarded as ‘news’” as defined by “the mores of the community” and “publishers and broadcasters… themselves.” The Restatement goes on to give the following as examples of topics of legitimate public concern: “homicide and other crimes, arrests, police raids, suicides, marriages and divorces, accidents, fires, catastrophes of nature, a death from the use of narcotics, a rare disease, the birth of a child to a twelve year-old girl, the reappearance of one supposed to have been murdered years ago, [and] a report to the police concerning the escape of a wild animal and many other similar matters of genuine, if more or less deplorable, popular appeal.” As you can see, the common law casts a wide net.
Despite the rather detailed laundry list of authorized publicity, perhaps the best definition of “legitimate public concern” is what it is not. Non-newsworthiness is defined as that which ‘becomes a morbid and sensational prying into private lives for its own sake with which a reasonable member of the public, with decent standards, would say that he had no concern.’
In Tiger Woods’ case, does it make a difference that he is a celebrity?
Celebrity status certainly makes a difference because famous people are clearly more likely to be legitimately newsworthy. We know from defamation jurisprudence that they receive much less protection against idle chatter about their lives. In listing the topics of authorized publicity, the Restatement lists “marriages and divorces.” Add to that the facts that Tiger’s marital indiscretions and ensuing reputational issues had an economic impact on the brands he endorsed and on his career and you have a pretty good argument that the fact of his divorce was of legitimate public concern. Now whether the lurid details were of legitimate public concern is another story.
Do you think Woods could have successfully sued any of the various media outlets that disclosed his private information?
No, unless there was evidence somewhere that the media outlets used invasive or illegal means of newsgathering, which doesn’t seem to be the case. If the media outlets had reported something that was untruthful, he could have sued for defamation. But remember that suing would require disclosing more private matters in the public record. It would be counterproductive in a privacy case, no?
What disclosures would give Woods his best chance at a successful suit?
The tort of public disclosure of private facts only addresses those disclosures of information that is non-newsworthy, private, and offensive to the reasonable person. We’ve established that the fact of Tiger’s divorce is legitimately newsworthy. The law has a clear boundary defining what is considered “private” – and it is pretty extreme. In other words, it is probably not how you would define “private” in your own life. Any information that has been disclosed (even if only to a group of acquaintances), is publicly available, and in the public record is deemed “public,” as is anything visible from a public place. As such, the images of Tiger’s crashed SUV outside his house, the police report of that incident, and the public statements of his alleged girlfriends are not “private.”
In your opinion, how does society benefit, if at all by limiting the privacy rights of celebrities, and giving tabloids almost free reign?
First, let’s be clear that celebrities generally benefit from their fame. Unless you are an unwitting celebrity (because you were unintentionally embroiled in a newsworthy event, for example), there is an implicit “contract” with the public that accompanies modern fame. The celebrity discloses bits and pieces of his or her private life to create a public image and sells that image, often very lucratively. It is beneficial for society to have free and robust conversations about celebrities. Where the line should be drawn is perhaps at invasive and even dangerous measures of obtaining information about celebrities. That is a different story.
When you study what happened to Tiger Woods, do you think the law should evolve to restrict how far the media can pry into an individual’s life?
There is a much bigger question here, which I believe to be one of the most pressing questions of our time: where is the line between an individual’s right to information privacy and others’ right to know – especially when the information is accessible? American law has never been particularly adept at answering that question because of its reluctance to chill truthful expression that is lawfully obtained. European law is much more accommodating of dignitary concerns vis-a-vis freedom of speech. Frankly, I’m not convinced that more law is the best mechanism to address all privacy issues. And when the privacy matters involve the freedom of speech, this is an area that is best governed by personal and professional ethics.
[1]. Restatement (Second) of Torts § 652D, Spec. Note on Relation of § 652D to the First Amendment to the Constitution (1977).
[2]. Florida Star v. B.J.F., 491 U.S. 524 (1989). Id. at 526–29.
[3]. Florida Star, 491 U.S. at 533 (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 103 (1979)).