In a high-profile privacy lawsuit, former pro-wrestler Hulk Hogan won a $115 million jury verdict against Gawker for posting his sex video without his consent. Hulk Hogan, whose real name is TerryBollea, brought a lawsuit for invasion of privacy and other torts. Under one of the main privacy torts — public disclosure of private facts — one can be liable if one widely and publicly discloses private information about another that would be highly offensive to a reasonable person and not of legitimate concern to the public.
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Jessica Bennett at Newsweek brought my attention to a story about the family of the killer whale trainer (Dawn Brancheau) who was killed while training the whale at SeaWorld:
Brancheau’s family announced this week that they would seek an injunction to protect the release of the death imagery, captured by SeaWorld’s surveillance cameras on Feb. 24. And though the video has not yet been publicly released, it’s presently in the hands of the Florida Orange County Sheriff’s Office, which is investigating the woman’s death.
According to FoxNews:
The Orange County Sheriff’s Office, who now has the video, has received several calls from sources trying to obtain copies of the video, the Orlando Sentinel reported.Once the Orange County Sheriff’s Office concludes its investigation, the material would become public under Florida law. . . .
Brancheau’s family said through a spokesman that public airing of the killing would only worsen their grief.They could seek a court injunction to stop the release, at least temporarily. The family has been consulting the lawyer who represented Dale Earnhardt’s widow in a court fight over his autopsy photos.
I believe that the Brancheau family has a good case. They want to prevent the sad events that happened to the family of Nikki Catsouras, whose gruesome accident death photos started appearing all over the Internet. In that case, the court held that the family could bring common law privacy claims against the police department for improperly leaking the photographs.
Cutler’s blog, written under the pseudonym Washingtonienne, was a daily diary of her sex life while working as a staffer for Sen. Mike DeWine (R-Ohio). It recounted, entertainingly and in considerable — sometimes embarrassing — detail, her ongoing relationships with six men, including [the] plaintiff. . . .
Although McClurg notes that the plaintiff “suffered a genuine wrong,” he also states that the law “appears to be against him” because he “does not allege that any of the statements about him are untrue.” McClurg notes that the plaintiff is suing under the public disclosure of private facts tort, which “provides a remedy when one publicizes private, embarrassing, non-newsworthy facts about a person in a manner that reasonable people would find highly offensive.” McClurg notes that “while Cutler’s actions may meet this standard, courts have long been hostile to such lawsuits because of a fear of inhibiting free speech.” McClurg continues:
In 1989 the court tossed out a lawsuit against a newspaper for publishing a rape victim’s name in violation of Florida law. While it stopped short of ruling that a state may never punish true speech, the test it adopted for when that can be done without violating the First Amendment is so stringent Justice Byron White lamented in dissent that the court had “obliterate[d]” the public disclosure tort.
Not so. Time after time the Supreme Court has explicitly carved out space for the public disclosure tort to exist. In the series of cases involving the First Amendment and privacy restrictions on true speech, the Court has always confined the First Amendment to speech about matters “of public significance.” The Court did this in Smith v. Daily Mail Pub. Co., 443 U.S. 97, 103 (1979) as well as its most recent case on the issue, Bartnicki v. Vopper, 532 U.S. 514 (2001), where the Court held that “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Id. at 534.
In ACLU v. NSA, –F.3d — (6th Cir. 2007), a panel from the 6th Circuit held that the ACLU and other plaintiffs lacked standing to challenge the Bush Administration’s warrantless wiretapping program conducted by the National Security Agency (NSA). NYT coverage is here. According to the sketchy details known about the program, the court noted, “it has been publicly acknowledged that the TSP [the Terrorist Surveillance Program, as it has now been named by the Administration] includes the interception (i.e., wiretapping), without warrants, of telephone and email communications, where one party to the communication is located outside the United States and the NSA has ‘a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”
The plaintiffs are “journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP.” The plaintiffs claimed that the NSA wiretapping violated, among other things, the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act (FISA).
According to Judge Batchelder’s opinion, the plaintiffs could not establish standing because they could not directly prove that they were subject to surveillance. One of the problems with the court’s reasoning is that there is little way for the plaintiffs to find out more specific information about whether particular plaintiffs’ phone calls have been wiretapped. As a result, the government can violate the plaintiffs’ First and Fourth Amendment rights with impunity if they cannot ever learn enough to gain standing to challenge the surveillance.