Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

We have closely followed the twists and turns in Detroit Free Press reporter David Ashenfelter's efforts to avoid being forced to reveal his sources in the civil action against the Department of Justice brought by former federal prosecutor Richard Convertino.  This spring, a federal judge in Michigan allowed Ashenfelter to invoke his rights under the 5th Amendment in order to avoid testifying under oath about his sources.

Last week, the collateral damage from Convertino's legal crusade continued to spread.  This time, Convertino was seeking some 736 DOJ documents that he claimed would provide him information as to the identity of the DOJ employee who presumably leaked to Ashenfelter information about the investigation into Convertino.

In a loss for Convertino that, ironically, also constitutes a loss for media interests, D.C. federal district court judge Royce Lamberth ruled last week that all 736 documents were protected from disclosure by a variety of privileges, including the deliberative process privilege.  In addition, in the same opinion, Judge Lamberth held that private emails sent by federal prosecutor Jonathan Tukel from his DOJ account were covered by the attorney-client privilege and need not be produced.

As to the first part of the opinion, the deliberative process privilege is, all too often, the exception to the Freedom of Information Act that swallows the rule.  It covers “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”  The privilege is easily used as a shield by government agencies to protect from disclosure all variety of internal documents that might otherwise be subject to public disclosure.  While Judge Lamberth's opinion did not appear to break any new ground here, it certainly confirmed the many ways that government employees can make disclosure of records more complicated.

The second part of the opinion was more interesting, as it discussed an area of some interest to open government advocates across the country -- the status of private emails sent from a government account.  In this case, Convertino argued that Tukel should not be able to invoke the attorney-client privilege for these 36 emails -- which were sent to or from his personal attorney -- because, by being sent through the government's server, they were, per se, revealed to a third party.  Convertino asserted that because DOJ email policy explicitly gave the Department the right to read any DOJ email, Tuker had no reasonable expectation of privacy in these emails.

Judge Lamberth disagreed, holding that "[o]n the facts of this case, Mr. Tukel’s expectation of privacy was reasonable. The DOJ maintains a policy that does not ban personal use of the company e-mail. Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account."

The ruling clearly rolls back the widely held view that what is done on government computers is presumptively the property of the government, and therefore the people.  Journalists in states with public records acts may now find themselves fighting in court for what was once assumed to be clearly public -- emails sent from government accounts by government employees.

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The release of hacked emails written by well-known climate scientists has been widely reported around the world, as those emails have raised questions about whether the science behind global warming has been overstated.

This New York Times blog post by the paper's science reporter caused a mini-furor of its own in the blogosphere.  In the post, Andrew Revkin writes of the hacked emails:

The documents appear to have been acquired illegally and contain all manner of private information and statements that were never intended for the public eye, so they won’t be posted here.

While Revkin's statement was rather unclear, some critics wondered whether this constituted a new Times policy, one that was not in effect, for example, when the Pentagon Papers were published or when various leaked documents from the Bush Administration were published.  In a follow up to his post, Revkin points out that, from the beginning of the story, the Times has quoted the emails and provided links to other sites that have them posted.

Leaving aside the merits of the blogstorm in this case, the controversy does raise -- once again -- the question of how a media outlet should handle the receipt of documents that it has reason to believe were obtained illegally.

The answer, as a legal matter, is fairly simple.  Since the United States Supreme Court case of Bartnicki v. Vopper, the law is clear that when a media outlet lawfully obtains information from a third party -- even if the third party obtained it illegally -- publication of that material is protected by the First Amendment. In Bartnicki, which involved the broadcast of the contents of a cell phone call that had been illegally taped, the Court recognized the important government interest in protecting the privacy interests of the public at large, but held that, "[i]n this case, privacy concerns give way when balanced against the interest in publishing matters of public importance."

Of course, the answer would be different had the radio station that broadcast the tapes actually recorded the conversations itself.  The First Amendment does not immunize a reporter from his or her own illegal activity.  The answer might also be different if the disclosure did not concern a matter of public importance, or if the party releasing the material had some independent legal duty not to disclose it (as was the case in Boehner v. McDermott).

The policy question for media outlets is far more complicated.  Should the fact that the climate science emails contained "private" information give a media outlet legitimate pause before deciding to publish them?  Perhaps, though Andrew Revkin can probably tell you that deciding when to publish and when not to publish "private" information opens you up to charges of hypocrisy.

And yet, a blanket rule favoring publication may be problematic in some cases.  For example, to the degree any of these emails containing "private" information came from a government source, the Federal Privacy Act may be implicated.  Thus, if the government or a private individual pursues a Privacy Act action against whoever leaked the documents, the media outlet that received those documents may find itself being forced to reveal its sources (or facing the consequences for refusing to do so).

Check back later this week for a story from New Hampshire that implicates both Bartnicki and the developing case law on anonymous internet commentary.

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A panel of the Minnesota Court of Appeals has ruled in an invasion of privacy case that a MySpace.com posting revealing certain private facts about a plaintiff constituted “publicity per se.”  Although the appellate court ultimately held that the lower court properly granted summary judgment on the invasion of privacy claims in favor of the defendants, the publicity aspect of the ruling is an important because it demonstrates how “old media” publication torts are being applied to new social media.

The plaintiff in Yath v. Fairview Clinics, N.P., Docket No. 27-CV-06-12506, slip op. (June 23, 2009), alleged that a medical assistant in a clinic she attended “snooped” in the plaintiff’s medical files without a proper purpose and discussed sensitive personal information she found in the files with another employee of the clinic, one of the defendants in the appeal.  The plaintiff also claimed that the employee-defendant, the medical assistant, and others published a MySpace web page about the plaintiff that publicized private information obtained from the her medical records—according to the MySpace page, the plaintiff had a sexually transmitted disease, recently cheated on her husband, and was addicted to plastic surgery. 

The plaintiff sued the employee-defendant, the medical assistant, the clinic (on a vicarious liability theory), and one other person for, among other claims, invasion of privacy based on publication of private facts.  By the time the matter reached the Court of Appeals, only the employee-defendant and the clinic were still in the case.

The lower court had granted summary judgment in favor of the two defendants on the invasion of privacy claim because the evidence showed that only a few people accessed the MySpace page in the 24 to 48 hours during which the page was live.

However, on review, the Court of Appeals held that the lower court had misapplied the law concerning “publicity” in invasion of privacy cases.  "Publicity" is a required element of the publication of private facts tort.

“Publicity,” for the purposes of an invasion-of-privacy claim, 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.” In other words, there are two methods to satisfy the publicity element of an invasion-of-privacy claim: the first method is by proving a single communication to the public, and the second method is by proving communication to individuals in such a large number that the information is deemed to have been communicated to the public.

According to the appellate court, the lower court had incorrectly focused on the second prong of the publicity requirement—communication to a sufficiently large number of people—while ignoring the first prong.  Just as publication in a newspaper or a magazine of small circulation or in a radio broadcast would constitute “publicity,” so did the publication on MySpace in this case.  When information passes through a public medium like the Internet, the “publicity” requirement for invasion of privacy purposes is satisfied as soon as the information is disseminated.  “[T]he challenged communication here constitutes publicity under the first method, or publicity per se. . . . [Plaintiff’s] private information was posted on a public MySpace.com webpage for anyone to view.  This Internet communication is materially similar in nature to a newspaper publication or a radio broadcast because upon release it is available to the public at large.

The court’s ruling means, in effect, that the number of people who actually view a publicly available website is not relevant to the “publicity” requirement for invasion of privacy purposes.  The “publicity” occurs as soon as the information is made publicly available for anyone to view on the Internet.  However, as the appellate court acknowledged, the number of people who view such a website may be relevant when calculating the damages the plaintiff suffered (i.e., the more people who view the website, the greater the potential damages).

In reaching its ruling, the Court of Appeals took pains to put invasion of privacy in the context of our “Information Age":

That the Internet vastly enlarges both the amount of information publicly available and the number of sources offering information does not erode the reasoning leading us to hold that posting information on a publicly accessible webpage constitutes publicity.  If a late-night radio broadcast aired for a few seconds and potentially heard by a few hundred (or by no one) constitutes publicity as a matter of law, a maliciously fashioned webpage posted for one or two days and potentially read by hundreds, thousands, millions (or by no one) also constitutes publicity as a matter of law.

It is true that mass communication is no longer limited to a tiny handful of commercial purveyors and that we live with much greater access to information than the era in which the tort of invasion of privacy developed.  A town crier could reach dozens, a handbill hundreds, a newspaper or radio station tens of thousands, a television station millions, and now a publicly accessible webpage can present the story of someone‘s private life, in this case complete with a photograph and other identifying features, to more than one billion Internet surfers worldwide.  This extraordinary advancement in communication argues for, not against, a holding that the MySpace posting constitutes publicity.

The Pioneer Press has additional commentary on the case.

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In October 2008, we reported that the Florida Supreme Court rejected the false light invasion of privacy tort as a viable claim for relief under Florida law.  On December 23, 2008, the Missouri Court of Appeals went the opposite direction and held that Missouri does recognize false light invasion of privacy as an actionable tort. 

In Meyerkord v. Zipatoni Co., the Missouri Court of Appeals vacated and remanded the trial court's dismissal of a plaintiff's claim alleging that the defendant company, Zipatoni, had cast the plaintiff in a false light by failing to remove the plaintiff as the registrant of a certain website.  The plaintiff was a former employee of Zipatoni (a marketing firm) and was listed as the registrant for the company's account with Register.com.  Three years after the plaintiff left the company, Zipatoni registered a certain marketing website through Register.com---the Register.com account listed the plaintiff as the website's registrant even though the plaintiff had nothing to do with the creation, registration, or marketing for the website.  The website (www.alliwantforxmasisapsp.com) was apparently used during a "viral marketing campaign" related to Sony's Play Station Portable.  The website and those associated with it, including the plaintiff, became the subject of "concern, suspicion, and accusations" in the online community.

The plaintiff filed a complaint against Zipatoni alleging false light invasion of privacy.  The complaint claimed that the content of the website was "'publicly attributed'" to the plaintiff and that "his 'privacy had been invaded, his reputation and standing in the community had been injured, and he has suffered shame, embarrassment, humiliation, harassment, and mental anguish."  The trial court dismissed the complaint because no Missouri court had previously recognized the false light invasion of privacy tort.

In reaching its conclusion to vacate and remand the case, the Court of Appeals reasoned that Missouri had long recognized a cause of action for "invasion of privacy," the umbrella term for four different torts:  intrusion on seclusion, misappropriation of likeness, public disclosure of private facts, and false light.  See, e.g., Restatement (Second) of Torts, Section 652(A)-(E).  The Court of Appeals also acknowledged that Missouri courts had never explicitly recognized a cause of action for false light.  However, the Court of Appeals also reasoned that the Missouri Supreme Court left open the possibility that false light could be recognized in the future.  In Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo. 1986) (en banc), a decision that declined to recognize false light based on the facts presented, the Missouri Supreme Court wrote, "[i]t may be possible that in the future Missouri courts will be presented with an appropriate case justifying our recognition of the tort of 'false light invasion of privacy.'  The classic case is when one publicly attributes to the plaintiff some opinion or utterance, whether harmful or not, that is false, such as claiming that the plaintiff wrote a poem, article or book which plaintiff did not in fact write." 

In Meyerkord, the Court of Appeals noted that a majority of jurisdictions that have confronted the issue of whether or not to recognize false light as a separate actionable tort have chosen affirmatively to recognize the tort (the court cited 27 jurisdictions), whereas a minority of jurisdictions have refused to recognize false light (the court cited 8 jurisdictions).  According to the Court of Appeals, the jurisdictions that have rejected false light have done so primarily due to three concerns:  (1) the protection provided by false light duplicates or overlaps interests already protected by defamation, (2) recognizing false light would increases tension with the First Amendment to the extent false light allows recovery beyond that allowed for defamation, and (3) recognizing false light would require courts to consider two claims for nearly identical relief.  The Meyerkord decision addressed each of these concerns as follows:

• False light is "sufficiently distinguishable" from defamation.  Under defamation law, "the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world."  On the other hand, the interest protected by false light "is the subjective one of injury to the person's right to be let alone."  Additionally, the marketplace of ideas operates to alleviate defamation injuries, while the marketplace intensifies the injuries that flow from false light.
• The First Amendment concerns attendant to recognition of false light are lessened by adopting a heightened standard of fault, such as actual malice---knowledge of falsity or reckless disregard for the truth---or recklessness.  
• The heightened actual malice standard also alleviates concerns related to judicial economy.  Moreover, the requirement that a plaintiff must prove the complained of statement is "highly offensive to a reasonable person" decreases the possibility of excessive litigation over false light claims.

The Court of Appeals wrote:

As noted earlier, the Missouri Supreme Court has considered the issue of whether Missouri courts should adopt the tort of false light invasion of privacy, but the Supreme Court concluded it had not yet been confronted with a factually suitable case. We now find that the facts of the present case properly present the issue of false light invasion of privacy and we hold that a person who places another before the public in a false light may be liable in Missouri for the resulting damages. In recognizing this cause of action, we note that as a result of the accessibility of the internet, the barriers to generating publicity are quickly and inexpensively surmounted. . . . Moreover, the ethical standards regarding the acceptability of certain discourse have been diminished. Thus, as the ability to do harm grows, we believe so must the law's ability to protect the innocent.

In so ruling, the Court of Appeals adopted the Restatement (Second) of Tort's formulation of false light invasion of privacy, which requires a plaintiff to show: (1) the false light in which the plaintiff was placed would be highly offensive to a reasonable person, and (2) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.  The Court of Appeals expressly adopted the actual malice standard for all false light claims, whether they involve public officials, private individuals, public matters, or private matters.

Turning to the facts of the case, the Court of Appeals determined that the plaintiff had adequately alleged that the viral marketing website was publicly attributed to him and that the misrepresentation was highly offensive to a reasonable person.  However, the plaintiff had failed to adequately allege the actual malice standard of fault, so the trial court had not erred in dismissing the complaint.  The Court of Appeals vacated the trial court's decision and remanded the case to allow the plaintiff an opportunity to amend his complaint and plead actual malice.

It is important to recognize that the Meyerkord decision was issed by the Court of Appeals, which is an intermediate state appellate court.  The Missouri Supreme Court has not yet had an opportunity to rule definitively that Missouri courts recognize false light invasion of privacy as a separate actionable tort.  The juxtaposition of the Meyerkord case and the Rapp case out of Florida also underscores that the status of invasion of privacy torts, and particularly the status of the false light invasion of privacy tort, remains fluid across U.S. jurisdictions.  We will keep you apprised as other states address this issue.

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The Supreme Court of Florida yesterday issued two opinions holding that Florida law does not recognize the false light invasion of privacy tort.  These outcomes constitute significant wins for media defendants in a state where the existence of false light as a viable state-law claim has been hotly debated. 

Rapp v. Jews for Jesus, Inc. involved statements made by the plaintiff’s stepson in a newsletter that suggested the plaintiff had joined or was a believer in the Jews for Jesus philosophy.  Essentially, the plaintiff argued in the underlying proceedings that, while literally true, the statements created a false impression of her, and she brought claims for false light invasion of privacy, defamation, and intentional infliction of emotional distress based upon the statements.

The court rejected the plaintiff’s position following a thorough comparison of the elements of and interests at stake in false light and defamation claims.

We once again acknowledge that it is our duty to ensure the “protection of the individual in the enjoyment of all of his inherent and essential rights and to afford a legal remedy for their invasion.” However, because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.

On the same day it released Rapp, the Supreme Court of Florida also released Anderson v. Gannett. Like Rapp, Anderson involved false light invasion of privacy and defamation claims based on the same set of facts.  The question before the court in Anderson was the applicable statute of limitations for false light claims, but the court dismissed the question as moot given its holding in Rapp.

False light is one of the four branches of the common-law invasion of privacy tort.  In states that recognize false light as viable claim, a plaintiff must generally show that a defendant disseminated some highly offensive false publicity about an identified person with knowledge of or reckless disregard for the falsity of the statement.  The elements are derived from the Restatement (Second) of Torts, 652(E).

With these two decisions, Florida joins a number of other states in rejecting false light as a permissible state-law claim.

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