Friday, April 6, 2018

The State of Invasion of Privacy Law

I have studied three invasion of privacy cases in recent years. I will summarize the teachings of each in an attempt to understand the current state of the law.

1.  Oliver Sipple (1984).  Sipple was a gay man who saved the life of President Ford in 1975. His invasion of privacy suit was unsuccessful for two reasons: one, the subject-matter of the publicity complained of was of legitimate public concern; and two, knowledge of his sexual orientation was already in the public domain due to Sipple's frequent gay rights activism.

2.  Hulk Hogan (2016).  Hogan was successful, putting Gawker out of business for publishing a video of Hogan having sex. The case stands for the principle that, in the Internet era, courts are no longer going to defer to the media to determine what is considered "newsworthy"

3.  Olivia de Haviland (2018). Principle here is, don't sue the movie industry in California.

The Hogan case was such an oddball case, relying as it did on the idea that Hulk Hogan and his creator, Terry Bollea, were two separate entities, that I don't see much precedential value here. I think, therefore, that the right of free speech in this country is still alive and well, though under attack, and would-be plaintiffs still should think long and hard before pursuing a dubious privacy claim.

Wednesday, April 4, 2018

California court delivers stinging rebuke to Olivia de Havilland, and strong support for free speech

Olivia de Haviland sued FX Networks in response to a TV miniseries entitled Feud: Bette and Joan.  The trial judge ruled that the case could proceed, resulting in the network's appealing to the California Court of Appeal, which ruled against de Haviland and required her to pay the winner's attorney fees.

The opinion is a great example of a court using common sense. People who feel the law is too technical or arbitrary should read this opinion to see how common sense can prevail in court decisions.

De Haviland's lawyers stressed that she didn't give her consent for this portrayal, even though it is customary to obtain such consent. The court made it clear there is no requirement to obtain consent to portray a living person, saying that "Whether a person portrayed in one of these expressive works is  a world-renowned film star--'a living legend'--or a person no one knows, she or he does not control history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator's portrayal of actual people."

California has an interesting (and perhaps unique) statute at play here, called the anti-SLAPP statute. This statute, enacted in 1992, was a response to what the legislature called "a disturbing increase in lawsuits brought primarily to chill the valid exercise...of freedom of speech..." Such lawsuits are subject to "a special motion to strike", which in turn require the plaintiff to establish a probability of prevailing on the claim. If the defendant prevails on the motion to strike, the statute says that said defendant "shall be entitled to recover his or her attorney's fees and costs." Note the "shall"--it is mandatory.

The Motion to strike was invoked here and the appellate court eviscerated the plaintiff's frivolous claims. Her four purported claims are the following:

1.  Common law privacy tort of misappropriation.  This claim can be colloquially called "invasion of privacy". It is entirely spurious in this case, as de Haviland is a public figure, and furthermore, the portrayal was substantially accurate. Beyond that, the court stressed that the actress playing de Haviland was only on screen for a small fraction of the series' running time (fewer than 17 minutes out of 392 minutes total), and the series was not really even about her. The privacy of the 101-year-old de Haviland was in no way invaded.

2.  Violation of the California statutory "right of publicity". This statute prohibits the use of someone's "name, voice, signature, photograph, or likeness,, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or service, without such person's prior consent."  The court noted that the cases in this area involve merchandise such as T-shirts and lithographs, but the statute does not apply to works of art such as TV shows, books, plays, or films. The court cited a recent precedent which stated that "Courts long ago recognized that a celebrity's right of publicity does not preclude others from incorporating a person's name, features, or biography in a literary work, motion picture, news or entertainment story. Only the use of an individual's identity in advertising infringes on the persona."

3.  False light invasion of privacy.  An example of how frivolous de Haviland's claims are in this area is that one of her claims is that the show had her calling her sister, Joan Fontaine, a "bitch", when the actual term she had use in real life was "Dragon Lady". The court of course held this acceptable, for many reasons which I won't go into detail here.

4.  Unjust enrichment.  This last is really a  joke, as "unjust enrichment" is not even a cause of action! It is simply a restitution claim, i.e., a way of calculating damages.

This case is significant and interesting for a variety of reasons, which I will try to discuss.

1.  It is obvious that the California legislature, perhaps the most proactive legislature in the country, has tried hard to clarify the scope of two important rights: one, the right of a movie star to prevent his or her likeness from being used to promote products without permission; and two, the free speech right of the movie industry to make movies.  We can only imagine how muddled the situation must have been when these issues were left up to the courts. The legislature surely felt compelled to step in and clarify the rules in this area, and it did so admirably. This case illustrates how a court can and should analyze a given fact situation and clarify the extent of each of these California laws.

2.  The fact that the award of attorney's fees to a prevailing defendant is made mandatory shows how rampant the use of frivolous lawsuits had become prior to he law. The legislature clearly wanted to strike a strong blow in favor of free speech (i.e., in favor of the movie-making industry).

3.  The case illustrates the American tendency for people to run to the courts for redress whenever they feel they have been wronged. Few wrongs in life are redressable by the court system. And here, de Haviland was not even wronged, as the court's opinion so eloquently shows.

4.  Related to #3 is that Americans have established a culture of victimization. If something bad happens to an individual, it is because of that person's race, ethnicity, religious affiliation, etc.  The "abuse excuse" is often used to explain away criminal actions, though it rarely succeeds. (A notable exception is the "battered woman's syndrome", which has been accepted to justify a woman's killing a man while he sleeps in bed.)  If we see ourselves as victims, rather than as autonomous actors, we are more likely to blame others and look to the courts for redress.

5.  There has been a lot of hysteria recently about the so-called "right of privacy", and this case should provide a useful counterweight to this hysteria. The United States ranks poorly among developed nations in the happiness index precisely because people have too much privacy; i.e., we have not enough of a sense of community and connectedness to our fellow humans. This whole privacy craze is a mostly bogus issue, as shown by the recent Facebook kerfuffle, in which nobody was hurt by the release of data which gets aggregated to show tendencies in support of a candidate or product. Another example is the EU harassment of Google, requiring Google to delete supposedly "stale information" even though it is true information.