Intrusion

Paparazzi Need Better Manners, Not More Laws

Jason Crow — Fri, 11 Jul 2008 14:36:14 -0400

In Malibu City, an ocean-side enclave of Los Angeles, local government officials are considering regulations that aim to protect the privacy and safety interests of both celebrities hounded by the paparazzi and local residents, after local surfers went to fisticuffs with photographers trying to capture Matthew McConaughey surfing at Malibu's Little Dume Beach.

According to the Malibu Times, some Malibu City Council members are considering a range of possibilities including buffer zones around certain areas, requiring all "celebrity photographers" to file for a permit, and taxing revenues generated from the photos. Malibu Councilman Jefferson Wagner supports the idea of a licensing requirement for paparazzi because of what he considers the commercial nature of the photographs. Earlier this year, Los Angeles City Councilman Dennis Zine proposed creating a "personal safety zone" that would require paparazzi to stay several feet away from the celebrities they photograph.

At first blush, the proposed regulations seem like a well-reasoned response to a problem that has plagued the area for some time. With the demand for candid images of celebrities at an all-time high in part due to highly popular entertainment blogs like Perez Hilton, who is sued frequently over his use of celebrity pics (see CMLP’s summaries here, here, and here), finding a way to wrangle the unruly photographers is a topic that isn't likely to go away.

However, the regulations pose some issues for advocates of free speech and freedom of the press. In an article at MSNBC.com, Lucy Dalglish, executive director of the Virginia-based Reporters Committee for Freedom of the Press, expressed the legal difficulties that arise if the law tries to distinguish between a paparazzo and any other type of photographer (note: Lucy Dalglish is on the CMLP's Board of Advisors):

The paparazzo is just as much covered by the First Amendment as you or I, or any Joe Schmo up the street. I don't think under any First Amendment law you can single out a paparazzi photographer.

Malibu Mayor Pamela Conley Ulich, in an official press release quoted by the Malibu Times, had similar concerns, expressing hope that Malibu would try and balance “public safety concerns against protecting the First Amendment activities and commercial activities.”

Photographing a person, whether famous or not, on a public beach or surfing in the ocean, an activity on public property in public view, will not violate that person’s privacy under the law of intrusion in California. Assuming the paparazzo isn’t assaulting someone or trespassing or otherwise doing something illegal while taking such a photograph, he or she is not violating the law. Nor does California's Anti-Paparazzi Statute, California Civil Code, §1708.8, preclude someone from photographing surfers at a public beach because the activity is taking place on public property and their being in full public view eliminates any reasonable expectation of privacy that the person may have.

Regardless of the free speech issues, the new regulations may be unnecessary. As the San Francisco Chronicle reports, Los Angeles County Sheriff Lee Baca, whose department provides police services for Malibu, thinks existing laws prohibiting reckless driving, obstructing movement, and battery are sufficient to deal with the paparazzi.

Further, Reuters quoted a report issued by Los Angeles Police Chief William Bratton in response to Councilman Zine’s proposed “personal safety zone” that cited existing laws on jaywalking, speeding and assault that could be used to deter aggressive photographers. Chief Bratton went on to question the enforceability of Zine's proposal, raising such vexing issues as how to define a "celebrity" or "paparazzo" and whether celebrities can be given special treatment.

The paparazzi profession attracts adventurous and aggressive personalities - hardly the type to line up at City Hall to get a permit to shoot. And if the Malibu ordinance passes, how would one distinguish between a local news reporter for the Malibu Times who was charged with capturing a photo of the local surfing conditions for the weather section of the newspaper and a paparazzo shooting Matthew McConaughey surfing?

The proposed regulations are impractical and are too restrictive on newsgathering activities. Malibu and Los Angeles officials should utilize existing California law to provide adequate protections for journalists, citizens and celebrities alike - and yes, for the annoying paparazzi too.

(Jason Crow is a second-year law student at Boston College Law School and a CMLP Legal Intern.)

Perez Hilton Sues Fellow Gossip-Blogger For Defamation Over Alleged Sex Tapes

David Ardia — Thu, 10 Apr 2008 18:14:10 -0400

Earlier this week, Perez Hilton sued fellow gossip-blogger Jonathan Jaxson for libel, slander, invasion of privacy, harassment, and intentional infliction of emotional distress. Jaxson, the former publicist for the Backstreet Boys whose real name is Jonathan Wayne Lewandowski, operates a blog called JJ's Dirt that feeds the public's apparently unlimited hunger for celebrity gossip.

The complaint, which Hilton filed in Los Angeles Superior Court, alleges that Jaxson slandered him by stating that Hilton had solicited sexual favors from Jaxson in exchange for help promoting Jaxson’s website. The complaint specifically refers to a February 28 article in the New York Post in which Jaxson stated that Hilton encouraged him to send sex tapes of himself. "He would tell me he would give me stories for my blog," Jaxson told the Post. "He used me."

Hilton also claims that statements Jaxson made to ABC News, Popcrunch.com, and HollywoodCrap.com, were defamatory. According to ABC News.com and allegations in Hilton's complaint:

Jaxson sent ABCNEWS.com copies of several instant message conversations he claims he had online with Lavandeira. The conversations appear to show Lavandeira requesting sex videos from Jaxson, apparently coaching him on who to send the tapes to and also contains several nude shots of Jaxson. ABCNEWS.com has not been able to independently verify the authenticity of the instant message conversations. . . .

"[Lavandeira] was using me as his personal porn service," said Jaxson, who admitted to sending several sex tapes and photographs featuring himself to Lavandeira on the condition that he would alert him to breaking celebrity news. "I felt manipulated."

Hilton states in his complaint that there was no agreement to exchange sex for his helping publicize Jaxson's blog.

Adding to the emotional nature of the dispute, Jaxson published Hilton's personal phone number on his blog earlier this week and told his readers that Perez "has hurt me and millions of others, because of this I think you should call him and let him know how you feel."

Interestingly, Hilton hasn't sued any of the media outlets that published Jaxson's statements (probably because he knows they have a cadre of media lawyers who will fight this suit with much more gusto than Jaxson will muster).

You can follow further developments in the case in our Legal Threats Database: Perez Hilton v. Jonathan Jaxson.

Highlights from the Legal Guide: Liability for the Use of Recording Devices

CMLP Staff — Tue, 25 Mar 2008 09:17:46 -0400

This is the seventh in a series of posts calling attention to topics we cover in the Citizen Media Legal Guide. In this post, we highlight the section on Recording Phone Calls, Conversations, Meetings and Hearings, which discusses federal and state laws relating to the use of recording equipment in specific private and semi-public settings. We also provide some practical tips for using recording devices, which should help you steer clear of legal trouble.

Recording Phone Calls, Conversations, Meetings and Hearings

Using a recording device, such as a microphone, video recorder, or camera, is often a helpful way to capture and preserve information about conversations, interviews, and phone calls in which you participate. It is also a good way to document what takes place in a court hearing or public meeting, whether for personal reference or later broadcast over the Internet.

Where you do your recording, and what you record, will largely dictate what legal limitations apply to your recording activities. It may also be the case (in fact, it is quite likely) that more than one set of laws or limitations might apply to your use of recording equipment. Before concluding that your activities are in the clear, you should read all of the sections listed below that might apply, as well as the section on Gathering Private Information elsewhere in this guide.

If you plan to record the conversations of others, whether they occur in person or over the telephone, you should review the section on Recording Phone Calls and Conversations. This section discusses federal and state wiretapping statutes that make it a crime to record telephone calls and private conversations in many circumstances. Keep in mind that conduct that could lead to criminal and civil liability under federal and state wiretapping statutes could also lead to possible liability for intrusion. Please refer to the state-specific sections of this guide to get a more in-depth overview of the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia.

If you plan to use a recording device at a public meeting or court hearing, you should review the section on Recording Public Meetings and Court Hearings, which looks at the laws affecting your ability to make sound and video recordings and to take photographs in these quasi-public settings. Because laws vary greatly state-by-state, be sure to consult the state-specific sections of this guide for detailed information on the laws regarding use of recording devices at court hearings and public meetings. For more information on your general right to be present at court hearings and public meetings, please see the Access to Government Information section of this guide (forthcoming).

If you plan to take photographs, video, or audio of people engaged in private activities in places where they reasonably expect to be private, you should also read the section on Gathering Private Information in this guide. Various privacy laws could subject you to liability in this context, so you should proceed with caution if you will be recording private activities.

Once you've reviewed the other sections and are prepared to proceed, you should carefully review the section on Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings. This section provides some practical guidelines for using recording devices, which should help you steer clear of legal trouble.

Browse any of the sections below to get started:

Recording Phone Calls and Conversations

Recording Public Meetings and Court Hearings

Practical Tips for Recording Phone Calls, Conversations, Meetings, and Hearings

State Law: Recording

Practical Tips for Avoiding Liability

A number of laws affect your ability to use recording devices in various contexts. Here are some practical tips to help you avoid legal trouble when recording conversations, phone calls, meetings, and hearings.

Practical Tips for Recording Phone Calls and Conversations

Check the law of your state before you record a phone call or conversation. Recording phone calls and conversations without consent may expose you to criminal and civil liability, so you will want to be aware of what is permissible before taking action. When you do your research, pay attention to your state's consent requirement -- i.e., whether one party's consent is sufficient to make recording lawful, or whether you need to get all parties' consent. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see The Reporters Committee for Freedom of the Press' Can We Tape?

Play if safe and get consent to record from all the parties. In many states, the consent of one party is sufficient to make recording lawful. But the legal situation becomes more uncertain when parties to a phone call are located in different states. To avoid legal problems, it is best to get consent from all parties to this kind of multi-state conversation before recording. Even when all parties to a conversation are in the same place, it cannot hurt (and it may help) to get consent from everyone.

Get consent on tape. The best way to document that you have obtained consent is to record the consent along with the phone call or conversation. As a practical matter, this will require (1) notifying the person you intend to record of your intent to record; (2) getting consent off-the-record; (3) starting the recording; and then (4) asking the person to confirm on-the-record that he or she consents to the recording.

Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

Practical Tips for Recording Public Meetings and Court Hearings

Check the law of your state before you show up. State law varies greatly, especially when it comes to recording in the courtroom. Looking into the law ahead of time can help you understand what's possible and alert you to requirements you need to meet ahead of time. For state-specific information for the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section in this guide. For states not yet covered in this guide, see The Reporters Committee for Freedom of the Press' Open Government Guide (for public meetings) and the Radio-Television News Directors Association's Cameras in the Court: A State-By-State Guide (for court hearings).

Notify the clerk of the court or the governmental body holding the meeting well ahead of time that you plan to record. Many state laws require that you request permission in advance in order to record in a courtroom. This requirement is less common with respect to public meetings, but it may still be useful to advise the governmental body in question that you plan to record. In both cases, you get the opportunity to ask questions and find out more about any restrictions that may apply.

Don't be secretive. In some states, you can violate the law by recording secretly, even in a public place like a meeting or courtroom. Whenever possible, make it clear to those around you that you are recording. Don't hide your camera or tape recorder. Being upfront puts people on notice that they are being recorded, affords them an opportunity to object, and undercuts any argument that you are acting secretly.

Highlights from the Legal Guide: Gathering Private Information

CMLP Staff — Mon, 10 Mar 2008 15:30:04 -0400

This is the fifth in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we began publishing in January. This past month we rolled out the sections on Newsgathering and Privacy, which address the legal and practical issues you may encounter as you gather documents, take photographs or video, and collect other information.

In this post, we highlight the section on Gathering Private Information, which outlines various privacy laws that may limit your ability to gather private information or otherwise intrude into another person's private space.

Gathering Private Information

If you physically enter a private area, photograph or take video of people engaged in private activities in places where they reasonably expect to be private, or in some other other way intrude into a person's privacy (by, for example, opening the person's mail), you could be liable for a violation of what is called "intrusion upon seclusion." If you collect certain personal data, this can also intrude into a person's private affairs. In the newsgathering context, the actual collection of the data could be seen as intrusion if the method you use meets the four general elements for an intrusion claim.

Generally speaking, however, you will not be liable for intrusion if you photograph or capture video of people in public places, even if they have not consented to being recorded, because individuals cannot have a reasonable expectation of privacy when in public. Nor will you be liable for intrusion if you gather private information from documents that are available to the general public.

If you plan to gather private information or take photographs or video of people engaged in private activities in places where they could reasonably expect to be private, you should:

Review the Elements of an Intrusion Claim to determine whether your actions could open you up to liability.

Read the section of this guide on the Statute of Limitations for Intrusion, which describes the time limits for filing an intrusion lawsuit.

Consider adopting the recommendations in our section on Practical Tips for Avoiding Liability When Gathering Private Information.

You should know that it is not necessary that you publish the photographs or information you gathered; an intrusion claim rests solely on the way in which you gathered your information. If you do subsequently publish the private information you gathered, however, you could also face liability for what is called "publication of private facts." See the section on Risks Associated with Publication in this guide for more information on the risks you may face if you publish private information.

Practical Tips for Avoiding Liability

While you can't always eliminate your legal risks when gathering news or information, there are a number of ways you can minimize your risk of being on the receiving end of an intrusion or other newsgathering related lawsuit. Some suggestions include:

Make sure you gather information from public places and public sources: Photographing, taking video, or reporting on people where they should reasonably expect to be seen will not typically violate their privacy. Examples include photographing a person on the steps of a courthouse, at a public rally, at a sporting event, or at another public venue. By exposing themselves to public observation, people are not entitled to the same degree of privacy that they would enjoy within the confines of their own homes. The right to record the activities of others will typically extend to activities that take place on private property if they can be observed or heard from public places. Courts have held that there is no right to privacy attached to activities in the public view.

Be cautious when using telephoto lenses and special equipment if that equipment allows you to penetrate into private areas: You may be liable for intrusion if you use advanced equipment, such as telephoto lenses or highly sensitive microphones, to obtain information or photographs that you could not have gotten otherwise. If you plan to use such equipment, you should carefully consult the section on Elements of an Intrusion Claim in this legal guide and proceed with caution.

If you are gathering documentary information, you should rely on publicly available information as much as possible: Gathering information from documents that are available to the general public, such as property records or public financial information, will make it unlikely that someone can claim you violated their privacy when you collected the information. Similarly, if a person makes certain private facts about themselves public by announcing it or disclosing the information to others, gathering this information will not make you liable for intrusion.

Where possible, get consent from the people you cover: Consent is typically one of your strongest defenses to intrusion. Consent can often be gained expressly, by someone specifically telling you that you can photograph them (which you should get in writing), but can also be implied. If a person fails to object to your presence after you identify yourself as a member of the media (or publisher of a blog, etc.), courts will generally consider this to be implied consent to your use of recording and photography equipment.

Avoid the use of concealed cameras or microphones: Even if your subject consents or you are invited into their home, you could still be liable for intrusion if you use a concealed camera or recording device. Courts have sometimes held that the person's consent only extends to the face-to-face interview and not to any concealed recording. For more on this subject, please refer to the Recording Conversations, Phone Calls, Meetings and Hearings section of this legal guide.

Remember that intrusion is based on the act of newsgathering, it is not necessary for you to publish what you gather to be liable: If you do subsequently publish the private information you gathered, you could also face a claim for publication of private facts. See the section on Risks Associated with Publication in this guide for more information.

Other helpful resources: There are a number of other online resources you can consult that will help you avoid liability. The RCFP's Nine Keys to Avoiding Invasion of Privacy Suits is a good place to start as is the Radio-Television News Directors Association's page on When Reporting Goes to Far.

Judge Reduces Verdict in Snyder v. Phelps, Westboro Baptist Church Still on the Hook for $5 Million

David Ardia — Fri, 08 Feb 2008 17:27:28 -0500

Earlier this week, a federal District Court judge in Maryland more than halved a $10.9 million jury verdict against the Westboro Baptist Church, a fundamentalist Christian church in Kansas, and three of its leading members. Among other things, the church publishes a website at "www.godhatesfags.com" and advocates the view that God kills U.S. soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality. Westboro Baptist has gained notoriety in recent years for staging protests at the funerals of U.S. soldiers in order to draw attention to its message.

Albert Snyder, a Pennsylvania man whose son was killed in Iraq, sued Westboro Baptist, its pastor Fred W. Phelps, Sr., and members of his congregation after they picketed the funeral of Snyder's son, Matthew, holding up signs with slogans like "God hates you," "Thank God for dead soldiers," and "You're going to hell."

In October 2007, the jury awarded Snyder $2.9 million in compensatory damages, $6 million in punitive damages for invasion of privacy, and $2 million in punitive damages for emotional distress. For a more thorough analysis of the trial and verdict, see our earlier blog post on the case: Jury Awards $10.9 Million Against "God Hates Fags" Church.

On February 4, Judge Bennett cut the jury award down to $5 million. Applying both federal constitutional and state common law standards, he left the jury's compensatory damage award intact but reduced the total punitive damages to $2.1 million. This leaves Westboro Baptist Church and the other defendants on the hook for $5 million.

While there is a strong argument that intentional infliction of emotional distress and intrusion torts, the two claims the jury based liability upon, are unconstitutionally overbroad and vague when applied to speech in this context (see Eugene Volokh's excellent summary of these arguments here), the Court sidestepped this issue by concluding that the speech at issue in the case was not entitled to First Amendment protection because it was private speech about "private individuals" (a rather dubious distinction under First Amendment law).

We can expect to see the First Amendment argument addressed more fully when the Fourth Circuit Court of Appeals hears the defendants' appeal of the verdict. According to the Baltimore Sun, the Fourth Circuit has scheduled a hearing for March 6, 2008.

You can read more about the case in the CMLP database: Snyder v. Phelps.

Snyder v. Phelps: Westboro Verdict Criticized as Unconstitutional

Sam Bayard — Tue, 13 Nov 2007 18:01:32 -0500

Following up on my earlier post about the $10.9 million jury verdict against Fred Phelps and the Westboro Baptist Church, I wanted to point our readers in the direction of some excellent commentary on the topic by Eugene Volokh at the Volokh Conspiracy. In a series of posts collected in a single thread, Volokh argues that the intentional infliction of emotional distress and intrusion torts, which are the claims that the jury found liability on, are unconstitutionally overbroad and vague when applied to speech. (More precisely, he argues that these torts, as applied to speech, are unconstitutional unless narrowed by courts to cover only constitutionally unprotected speech like "fighting words," incitement to imminent lawless action, or statements of fact made with the requisite degree of fault, which did not happen in the Phelps case.)

Intrusion is a tort that we've paid particular attention to because of its implication in the newsgathering process. Volokh captures well the constitutional infirmity looming in application of the intrusion tort to Westboro's picketing activities:

The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (the Restatement of Torts illustrations are entering a patient's hospital room to take a photograph over the patient's objection, photographing through someone's bedroom window through a telescope, tapping someone's phone, getting someone's bank records using a court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it's content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral -- there must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn't call all of it "highly offensive intrusion upon seclusion" -- but also from the message of the picketing.

Indeed, I would say that the intrusion tort normally does not apply to the conveyance of a message at all. It bars physical incursion into a place where a plaintiff has a reasonable expectation of privacy, if that invasion would be "highly offensive to a reasonable person." Restatement (Second) of Torts § 652B. It also commonly applies to non-physical intrusion in the form of a defendant using his/her senses, with or without the aid of mechanical devices such as a telephoto lens or recording equipment, to oversee or overhear a plaintiff's private affairs. See id. cmt. b.

For someone accustomed to thinking of the intrusion tort in the context of newsgathering, it is jarring to see it applied to speech activity like protesting or picketing. Volokh is plainly right that imposing liability on speech based on a "highly offensive to a reasonable person" standard coupled with a tenuous proximity requirement (remember, 1000 feet!) potentially penalizes protected speech and thus violates the First Amendment.

Jury Awards $10.9 Million Against "God Hates Fags" Church

Sam Bayard — Fri, 02 Nov 2007 12:02:56 -0400

On Wednesday, a federal jury in Maryland handed down a $10.9 million verdict against the Westboro Baptist Church, a fundamentalist Christian church in Kansas that publishes a website at www.godhatesfags.com, on which it disseminates its rabidly anti-homosexual views. Among other things, the church advocates the view that God kills U.S. soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality and for the presence of gays in the U.S. military. Westboro Baptist has gained notoriety in recent years for staging protests at the funerals of U.S. soldiers in order to draw attention to its message.

Around the time of the funeral, the church also posted an essay on its website entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder." In the essay, statements indicated that Snyder and his wife “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”

Snyder sued Westboro Baptish, Phelps, and members of the congregation in federal court in Maryland in September 2006. The complaint included claims for defamation, two counts of invasion of privacy ((1) intrusion on seclusion and (2) publicity given to private life), and intentional infliction of emotional distress. Recently, the court dismissed the defamation claim and the invasion of privacy claim based on publication of private facts, holding that the statements at issue were protected religious expression, not statements of fact.

Starting on October 22, the case proceeded to trial on the intrusion and intentional infliction of emotional distress claims. Under Maryland law, one commits the tort of intrusion by "intentionally intrud[ing], physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, . . . if the intrusion would be highly offensive to a reasonable person." Snyder v. Phelps, No. RDB-06-1389, slip op. at 19 (D. Md. Oct. 30, 2006). The jury evidently found that the Westboro protesters intruded upon the Snyder family's reasonable expectation of privacy in conducting the funeral. This is a surprising conclusion given that, according to a Baltimore Sun article on the trial, the protest took place 1000 feet outside the church where the funeral took place, and Snyder testified that he did not see the content of the protesters' signs as he entered or left the church.

The Baltimore Sun article linked to above has the best press coverage I've seen on the trial. Daniel J. Solove published an interesting post on Concurring Opinions that takes a theoretical approach to questions raised by the intrusion claim. Our entry in the Legal Threats Database has detailed information about the lawsuit, including copies of court documents.