Invading privacy still a concern
in today’s public world
by Candace Bowen, MJE
One area of unprotected speech is getting harder to teach all the time – partly because a fair number of students and even some adults appear not to care about protecting it.
“Unwarranted invasions of privacy” – one of the nine categories of speech the government can prohibit or even punish someone for using – is becoming increasingly problematic.
I assigned a paper discussing the their biggest legal worry to college juniors in my Teaching High School Journalism class. One student’s response surprised me. Usually they’re concerned about libel or copyright violations, but Gabrielle started her paper this way:
“The one that I am most concerned about is invasion of privacy. By the time that I am a teacher, my students will have lived their whole lives with the presence of the Internet constantly pressing in on them. They will never know a life without social media, online search engines, and other means of obtaining personal information. I think that this will give students the wrong assumption that all the information they have access to is fair game when it comes to reporting.”
And she’s right. According to the Student Press Law Center’s “Law of the Student Press,” the legal concept of invasion of privacy claims first came up during the era of Yellow Journalism, when media were trying to out-do each other with sensational stories that could sell their papers. That concept was largely under control for about a century when the Internet with blogs and social media plunged audiences back in the world of teaser headlines about private information.
But what are these privacy issues student journalists should know about?
According to Findlaw, an invasion of privacy is “an intrusion upon your reasonable expectation to be left alone.” This can be broken into four main types:
- Appropriation of Name or Likeness
- False Light
- Public Disclosure of Private and Embarrassing Facts
- Intrusion on solitude
The first two are fairly clear-cut. In the school setting, advertising managers need to think about appropriation: Get a photo release if you’re using someone’s picture in an ad.
Photographers should think about false light: Don’t use a photo of people if it looks like they are doing something they aren’t – particularly if what viewers will think makes them look bad.
A school in Illinois avoided a legal case but still learned a good lesson when the photo of a teacher walking down the hall with a cafeteria tray was used to complain that faculty were taking food out of the lunchroom when no one was supposed to be able to do that. Later the staff learned it wasn’t food on the woman’s tray but papers and a gradebook.
The other two legal claims are a bit more complicated. According to the Student Press Law Center, private facts have to be (1) sufficiently private, (2) sufficiently intimate and (3) highly offensive. Clearly it would be hard to argue that publishing something someone had tweeted or posted on other social media was very private at all.
However, the SPLC warns that anything dealing with “a person’s sexual behavior, medical/psychological history or financial affairs” should raise red flags, and student journalists should consider these risky because they could easily be sufficiently intimate for a successful invasion of privacy suit.
Highly offensive is more than just embarrassing, and it, too, should be considered carefully if a reporter thinks such information has to be included in her story.
The fourth type – intrusion – is more about gathering the information than necessarily publishing it. That means interaction in the main hall of the school or the football stadium is fair game for photographers (though some photos might not be ethical to publish… but that’s another discussion). In those places, not one has a reasonable expectation of privacy.
However, be careful of trespassing to gather information. Recent demonstrations could be an example of such a problem. Yes, reporters and photographers have a right to gather news, BUT that doesn’t always mean they can go everywhere, and it definitely doesn’t mean they can break laws just to get a story.
According to the Reporters Committee for Freedom of the Press, “In recent years, some reporters have been swept up in mass arrests during protests. Other reporters and photographers have been injured or fined while covering protests. Journalists often are surprised to learn that they don’t have a First Amendment right to wander wherever they please at a demonstration. What a reporter considers aggressive reporting is often an officer’s idea of disorderly conduct.”
When one of these situations arises as the staff discusses the next stories and photos they will be producing, it’s time to check how legal and how newsworthy their ideas are before they go any further.
This concern is amplified by the presence of social media. If I ever run a student media platform like the news paper, I hope that my students are able to cover interesting and thought provoking stories. My concern would be that students would use unprofessional avenues to retrieve information on the people they write about, especially their classmates. It is very easy to cyber stalk people to gain access to information. I feel that I am fairly competent at finding information online. I can only imagine how skilled my future students will be at the same research.