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ATTORNEY [ licensed to practice in KOREA, U.S.A., ILLINOIS ] LEE, JAE WOOK
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The right
        a) to protection
                i) against unreasonable interferences with
                        (a) an individual’s solitude

1) is well recognized.

The tort of
        a) invasion of privacy
        b) as it has developed, however,

1) includes
        a) protection of
                i) personality as well as
        b) protection
                i) against inteference with solitude.

In all,

the tort includes the following four kinds
        a) of wrongs:
                i) Appropriation
                        (a) by defendant
                        (b) of plaintiff’s
                                (i) picture or
                                (ii) name
                        (c) for defendant’s commercial advantage;
                ii) Intrusion
                        (a) by the defendant
                        (b) upon plaintiffs
                                (i) affairs or
                                (ii) seclusion;
                iii) Publication
                        (a) by the defendant
                        (b) of facts
                        (c) placing the plaintiff
                                (i) in a false light; and
                iv) Public disclosure
                        (a) of private facts
                                (i) about the plaintiff
                        (b) by the defendant.

1.         Appropriation of Plaintiff’s Picture or Name

a.         Prima Facie Case

To establish a prima facie case
        a) for invasion of privacy
        b) i.e., appropriation of plaintiff’s         
                i) picture or
                ii) name

1) only one element need be proved:
        a) Unauthorized use
                i) by defendant
                ii) of plaintiff’s
                        (a) picture or
                        (b) name
                iii) for defendant’s commercial advantage.

b.        Limited to Advertisement or Promotion of Product or Services

Liability is generally limited to
        a) the use
                i) of plaintiff’s
                        (a) picture or
                        (b) name
                ii) in connection with
                        (a) the promotion or
                        (b) advertisement
                                (i) of
                                        (A) a product or
                                        (B) service,
        b) e.g., use
                i) of plaintiffs picture
                ii) to advertise an automobile.

The mere fact that
        a) defendant is using plaintiff’s
                i) picture or
                ii) name
                iii) for his own personal profit

1) may not,
        a) by itself,
        b) be sufficient.

        a) for example,
        b) the use
                i) of personality’s name
                ii) in a magazine story,

1) even if motivated by profit,
2) may not be actionable.


2.        Intrusion on Plaintiff’s Affairs or Seclusion

a.         Prima Facie Case

To establish a prima facie case
        a) for invasion of privacy
        b) i.e., publication
                i) by defendant
                ii) of facts
                        (a) placing plaintiff
                                (i) in a false light

the following elements must be proved:  
        a) Act of
                i) prying or
                ii) intruding
                        (a) on
                                (i) the affairs or
                                (ii) seclusion
                                        (A) of the plaintiff
                        (b) by the defendant;
        b) The intrusion is something
                i) that would be
                        (a) highly
                        (b) offensive
                                (i) to a reasonable person;
        c) The thing
                i) to which there is
                        (a) an intrusion or
                        (b) prying

            is private.

b.         Invasion of Plaintiff’s Private Affairs or Seclusion

For liability
        a) to attach,

there must be an invasion
        a) of the plaintiff’s
                i) affairs or
                ii) seclusion;

1) e.g., defendant puts a microphone
        a) in plaintiff’s bedroom.  

c.        Intrusion Highly Offensive to a Reasonable Person

For liability
        a) to attach,

the intrusion
        a) by defendant

1) must be somthing
        a) that would be
                i) highly
                ii) offensive
                        (a) to a reasonable person.

d.         Intrusion Must Be Into Something Private

For liability
        a) to attach,

the intrusion
        a) by defendant

1) must be into something
        a) within the plaintiff’s own private domain.

Thus, for example,

takng pictures
        a) of a person
        b) in public place

1) is not actionable.

3.         Publication of Facts Placing Plaintiff in False Light.

a.         Prima Facie Case

To establish a prima facie case
        a) for invasion of privacy
        b) i.e., publication
                i) by defendant
                ii) of facts
                        (a) placing plaintiff
                                (i) in a false light

1) the following elements must be proved:
        a) Publication
                i) of facts
                        (a) about plaintiff
                ii) by defendant
                iii) placing plaintiff
                        (a) in a false light
                        (b) in the public eye;
        b) The false light is something
                i) that would be
                        (a) highly
                        (b) offensive
                                (i) to a reasonable person
                                (ii) under the circumstances; and
        c) Malice
                i) on the part
                        (a) of defendant
                ii) where the published matter is
                        (a) in the public interest.

b.         Publication or Public Disclosure

For liability
        a) to attach,

there must be publicity
        a) concerning the false light facts;

1) this requires more than
        a) publication
                i) in the defamation sense.

A publication is something printed, like A magazine or A journal. It is countable and a material, solid thing.
Publicity is uncountable. It is abstract. It means some way of sharing information (usually about a famous person or a company) publicly. To get publicity, you need to get your story in to the media somehow. You can get publicity through interviews, news, stories or publicity stunts. Sometimes someone famous will do something crazy to get publicity. This is called a “publicity stunt”. For example, if I were a rock star and I released an album, I might cause a fight to get into the news. Fighting and being tough is good for the image of a rock star, so it might increase my album sales. You see publicity stunts for Hollywood movies or to bring awareness to various causes (i.e. when people who are against fur throw paint on people wearing fur).
Publicity can come from any medium — TV, radio, print, the Internet etc.

c.         What is False Light?

A fact will be deemed
        a) to present planitiff
                i) in false light

1) if it attributes to him:
        a) A view
                i) that he does not hold, or
        b) Actions
                ii) that he did not take.


This element
        a) involves falsity and,         
        b) as such,
                i) may
                        (a) also
                        (b) involve defamation
                ii) if the falsity affects reputation.

d.        Highly offensive to Reasonable Person

To be actionable,

this false light must be something
        a) that would be
                i) highly
                ii) offensive
                        (a) to a reasonable person
                        (b) under the circumstances.

e.         Malice Necessary Where in Public Interest

In Time, Inc. v.' Hill, 385 U.S. 374 (1967),
        a) a case
                i) involving this particular invasion of privacy branch,

1) the Supreme Court held that
        a) the First Amendment prohibits recovery
                i) for invasion of privacy
                ii) in cases
                        (a) where the published matter is
                                (i) in the public interest,
        b) unless the plaintiff establishes that
                i) the defendant acted
                        (a) with malice.

        a) here,
        b) as in New York Times v. Sullivan,

1) goes to         
        a) knowledge of falsity or
        b) reckless disregard
                i) for the truth.

After Gertz and Dun & Bradstreet
        a) (discussed supra under Defamation),

the Supreme Court may be expected
        a) to give the states
                i) a slightly larger scope
                        (a) in which
                                (i) to protect privacy
                                (ii) where a public figure is not involved.


        a) where the public interest
                i) in the information

           is not overriding and
        b) where the risks
                i) to the privacy interests
                        (a) of the private person

            are clear
                i) on the face of
                        (a) the material
                                (i) to a reasonably prudent publisher,

1) the Supreme Court may choose
        a) in the future
        b) to permit an action
                i) in privacy
                ii) without proof of malice
                        (a) in the New York Times sense.


at least
        a) in public figure cases,

1) the  Time, Inc. v. Hill requirement
        a) of malice

   still holds. [See Hustler Magazine, Inc. v. Falwell, A.6., supra]

4.        Public Disclosure of Private Facts About Plaintiff

a.         Prima Facie Case

To establish a prima facie case
        a) for invasion of privacy
        b) i.e., public disclosure
                i) of private facts
                        (a) about plaintiff

1) the following elements must be proved:
        a)        i) Publication or
                ii) public disclosure
                        (a) by defendant
                        (b) of private information
                                (a) about the plaintiff; and
        b) The matter
                i) made public

           is such that
                i) its disclosure would be
                        (a) highly
                        (b) offensive
                                (i) to a reasonable person.

b.         Publication or Public Disclosure

For liability
        a) to attach,

there must be
        a) publicity (i.e. publication or public disclosure)
                i) concerning a private fact;
        b)  i.e., the disclosure must be
                i) a public disclosure,
                ii) not a private one.

c.         Facts Must Be Private
The facts
        a) disclosed

1) must be "private.“

For example,

there is no liability
        a) for matters of
                i) public record,

1) since these facts are not private.

d.         Disclosure Highly Offensive to Reasonable Person

To be actionable,

the disclosure
        a) of private facts

1) must be such that
        a) a reasonable person would find it
                i) highly
                ii) offensive.

Example:    Barbara showed,
                        a) in a public exhibition,
                        b) a movie of Sandy's cesarean operation.

                This may be actionable.

caesarean -
the delivery of a fetus by surgical incision through the abdominal wall and uterus (from the belief that Julius Caesar was born that way)

e.         Facts May Be True

Liability may attach
        a) under this privacy branch

1) if the elements
        a) of a prima facie case

   are satisfied
2) even though the factual statement
        a) about the plaintiff

    is true.

f.         Constitutional Privilege

The rationale of
        a) Time, Inc. v. Hill

1) appears to enoompass this branch of the invasion of privacy tort as well. In other words, if the matte is one of legitimate public interest, the publication is privileged if made without malice.

Time, Inc. v. Hill, 385 U.S. 374 (1967)
is a United States Supreme Court case involving issues of privacy in balance with the First Amendment to the United States Constitution and principles of freedom of speech.
James Hill and his wife lived in Whitemarsh Township, Pennsylvania, with their five children in 1952, when they were taken hostage in their own house by three escaped convicts.[2][3] During the ordeal, the family members were treated with dignity by the hostage-takers.[2][4] The family members were held hostage for 19 hours.[3] The three criminals were apprehended after leaving the Hills' home, and the incident received significant media attention.[2] Mrs. Hill did not appreciate the media focus, and the family relocated to Connecticut in order to seek out a lifestyle out of the limelight.[2]

Logo of Life magazine
Joseph Hayes wrote a novel published in 1953 called The Desperate Hours, which was influenced by the Hill family's ordeal.[3] The novel by Hayes went on to become a bestseller.[5] In 1954, the Broadway theatre production of the play The Desperate Hours debuted, which depicted a hostage incident similar to that experienced by the Hill family.[2][3] However, in The Desperate Hours, the scenario was changed from the Hill's actual experiences, to a fictional portrayal of a family victimized by threats of sexual abuse and other violent acts.[2][4] The setting for the play was Indianapolis, Indiana.[2]

Life magazine published an article on the debut of The Desperate Hours on Broadway, and included pictures of the actors in the prior residence of the Hills in the Whitemarsh suburb of Philadelphia, Pennsylvania.[2][3] In the article, The Desperate Hours was characterized as a "reenactment" of the ordeal experienced by the Hill family.[2][4] The Life magazine piece wrote that the photographed actors from the play were pictured in "the actual house where the Hills were besieged".[5] Mrs. Hill experienced a mental breakdown after the piece was published, and James Hill stated he was unable to comprehend why the magazine did not fact check the article through communication with the family.[2]

Prior litigation[edit]
James Hill filed suit in New York against the magazine's publisher, Time, Inc.[2] The suit asserted Life had violated privacy law in the state, by conflating the Hill family with fictional events which had not actually occurred.[2][4] The legal argument drew upon the notion of false light as related to privacy law.[6] After an initial ruling against Life magazine, the New York Supreme Court, Appellate Division remanded the case for a new trial.[3] After litigation through the court system in New York, a decision was found in favor of the plaintiff, with damages awarded of US$30,000.[6][4]

Supreme Court[edit]

Richard Nixon argued the Hill position before the Supreme Court.
Time, Inc. appealed the matter to the U.S. Supreme Court, where the Hill family position was argued by lawyer Richard Nixon, who later became the President of the United States.[6]
The position of Life magazine was argued before the Court by attorney Harold R. Medina, Jr. (son of U.S. federal judge Harold Medina).
In his opening argument he asserted that the privacy law in question in New York was unconstitutional, due to its broadness and for punitively impacting the press for publishing factual information.[7] As a secondary argument, Medina put forth the notion that the prior ruling in the case was inappropriate because the jury was allowed to determine liability of Life based on the inaccuracy of the article, while neglecting to take into account whether or not the act by the magazine was reckless or willful.[8]
He put forth the potential for a lawsuit against the press for a simple unintentional error, "It comes down to if you treat it on a mistake basis, on truth or falsity, what has happened to the law of libel? You don't need the law of libel any more and the safeguards. It is much easier to sue for violation of your right of privacy. But all the defenses that have been set up in the libel law disappear."[8]

Regarding his preparation for the case, Nixon remarked to The New York Times journalist Fred Graham, "I locked myself up in my office for two weeks. No phone calls. No interruptions. It takes a tremendous amount of concentration."[5] Graham later wrote of Nixon's argumentation, "Whatever the peculiarities of Nixon's preparation, his performance before the Court proved sound and workman-like, well within the bounds of effective oral advoacy."[7] Nixon argued that a fictional account is not newsworthy, and therefore freedom of the press is not impacted by the privacy law.[9] His essential premise put forth the notion that the "fictionalization" aspect of privacy law did not harm freedom of expression.[9]


Justice William J. Brennan, Jr. wrote the opinion of the Court.
In January 1967, the Court determined in a 5-4 decision in favor of Time, Inc.[16]
Justice William J. Brennan, Jr. wrote the opinion of the Court.[16] Justice Brennan had previously written the majority opinion in the case of New York Times Co. v. Sullivan in 1964; that case ruled individual officials who were publicly known were not able to obtain claims for inaccurate media coverage except in the case of reckless or willful reporting of said inaccuracies.[16]
In this case, Justice Brennan utilized a similar test to the matter at hand.[16] He permitted that Life could have a fresh trial where it could be determined whether or not the magazine's reporting was reckless or willfully inaccurate.[16]
Justice Brennan wrote about the balance between freedom of speech and exposure to public view:

The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials.
Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and press.[16]

The majority opinion held that states cannot judge in favor of plaintiffs "to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth".[4]
This decision had the impact of elaborating on the "actual malice" standard of the Court's prior holding in New York Times Co. v. Sullivan, to also include cases involving false light.[4]

A dissent written by Justice Fortas was joined by Justice Tom C. Clark as well as Chief Justice Earl Warren.[12] In addition to Justice Fortas, Justice John Marshall Harlan II wrote another dissent.[12] Justice Harlan observed that as Hill was not a public individual, he was unable to obtain significant viewership for a potential response.[12] He pointed out that this created a problem of "unchallengable untruth", and stated a necessity would have been to request Hill prove negligence on the part of Life magazine's editorship in their falsehoods, as opposed to the more stringent test of proving that the inaccuracy was actually reckless or willful.[12]

In his book Freedom for the Thought That We Hate: A Biography of the First Amendment, author Anthony Lewis examined the case, and noted, "Using someone's likeness without permission has developed as one of the four branches of privacy law. A second is false light privacy, exemplified by the Hill case: putting someone in a false light by, for example, fictionalizing a story about him or her."[13]

Authors Lyrissa Barnett Lidsky and R. George Wright write in their book Freedom of the Press: A Reference Guide to the United States Constitution, "... the Supreme Court requires proof of falsity and fault in all defamation cases involving matters of public concern, although the requisite fault depends on the status of the plaintiff. If plaintiffs were able to avoid these requirements simply by choosing to sue for false light rather than defamation, it would encourage an 'end run' around the First Amendment. The United States Supreme Court foresaw and partially prevented this problem in its first false light case, Time, Inc. v. Hill."[4] Regarding the rationale of the decision by the Supreme Court in the case, the authors noted, "The Court's reasoning was parallel to the reasoning being developed in defamation cases: Errors are inevitable in free debate on matters of public interest, and the press must have breathing space to protect it from liability for such 'inevitable' errors."[4]

Writing as a contributor to A Good Quarrel: America's Top Legal Reporters Share Stories from Inside the Supreme Court, Fred Graham commented on the positions of Time, Inc. in its argumentation before the Court.[8] Graham noted, "Underlying both defenses was the argument that if this judgment was not unconstitutional, then persons who feel they have been defamed can perform an end run around the defenses established in New York Times v. Sullivan by suing for a violation of privacy."[8]

1)         Effect of Passage of Time

The mere passage
        a) of time

1) does not preclude the "public interest" characterization
        a) of a publication.


it has frequently been held that
        a) the life
                i) of one
                        (a) formerly
                        (b) in the public eye

           has become public property,
        b) even though that person is
                i) no longer
                ii) in the public eye.

Example:    A magazine published the life history
                        a) of a former child prodigy.

                This may be construed
                        a) to be a matter
                                i) in the public interest.

prodigy (ˈprɒdɪdʒɪ)
n, pl -gies
1. a person, esp a child, of unusual or marvellous talents
2. anything that is a cause of wonder and amazement
3. something monstrous or abnormal
4. an archaic word for omen
[C16: from Latin prōdigium an unnatural happening, from pro-1 + -igium, probably from āio I say]

2)        Absolute Privilege with Regard to Matters of Public Record

Where the matters
        a) republished

   are taken from
        a) official public records,

1) there is an absolute constitutional privilege
2) (e.g.. rape victim’s name
        a) obtained from
                i) police records or
                ii) court proceedings
        b) used
                i) in news paper article).

5.        Causation

The invasion
        a) of plaintiff's interest
                i) in privacy

1) must have been
        a) proximately
        b) caused
                i) by defendant's conduct.

6.        Proof of Special Damage Unnecessary

In an action
        a) for invasion
                i) of right to privacy,

1) the plaintiff need not
        a) plead and
        b) prove special damages,
2) provided the elements
        a) of a prima facie case

    are present.

In other words,

        a) emotional distress and
        b) mental anguish

1) are sufficient damages.

7.         Basis of Liability

The basis
        a) for liability
                i) in a privacy action

1) may rest upon an
        a) intentional or
        b) negligent
                i) invasion.

It also appears that
        a) strict liability may be a sufficien basis
                i) (as in defamation).

8.        Defenses to Invasion of Privacy

a.         Consents

Consent is a defense
        a) to an action
                i) for invasion of the right to privacy.

Some states,
        a) by statute,

1) require that
        a) the consent be
                i) in writing.


as in all consent defense situations,

the defendant may
        a) nontheless
        b) be liable

1) if the consent granted has been exceeded.

Example:   Plaintiff consents
                        a) to be interviewed, and

                1) a picture
                        a) taken during the interview

                    is used
                        a) in conjunction with
                                i) an advertisement for a product.

                Liability may attach.

Note that :

        a) even if reasonable,
        b) as to whether consent was given
        c) (which in fact it was not)

1) is not a valid defense.

b.         Defamation Defenses

Those defenses
        a) to actions for defamation
        b) that are based on
                i) absolute and
                ii) qualified
                        (a) privileges

1) appear applicable
        a) to those invasion of right to privacy actions
                i) predicated on publication grounds,
        b) i.e.,
                i) "false light" and
                ii) "public disclosure
                        (a) of private facts"
                                (i) actions.

Thus, for example,

one may have
        a) an absolute privilege
                i) to comment
                        (a) as a participant
                                (i) in judicial proceedings or
        b) a qualified privilege
                i) to report public proceedings.


Truth is not a good defense
        a) to most invasion of privacy actions.

        a) inadvertence,
        b) good faith, and
        c) lack of malice

1) genlerally are not good defenses.

9.        Right of Privacy -Miscellaneous
a.         Right Is Personal

The right
        a) of privacy

1) is a personal right and
2) does! not extend
        a) to members of a family.

The right of privacy
        a) does not survive the death of plaintiff and
        b) is not assignable.

b.        Not Applicable to Corporations

Only individuals may avail themselves
        a) of a right to privacy action;

1) it does not apply to corporations.

← End




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