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1 PUBLIC DISCLOSURE OF PRIVATE FACTS ON ONLINE SOCIAL NETWORKS: ADAPTING NEWSWORTHINESS TO THE FACEBOOK AGE By MIRELIS TORRES RODRIGUEZ A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFIL LMENT OF THE REQUIR EMENTS FOR THE DEGREE OF MASTER OF ARTS IN MASS COMMUNICATION UNIVERSITY OF FLORIDA 2012
2 2012 Mirelis Torres Rodriguez
3 To my family and Michael L. Knowles
4 ACKNOWLEDGMENTS I would like to thank Dr. Clay Calvert, Dr. Lau rence Alexander, and Professor Jon Mills for their help, guidance, and participation in my thesis committee. Thanks go out to Dr. Calvert for his support, patience, and insight. This process would not have been as inst ructive or enjoyable without him Than ks also go out to Dr. Alexander for his advice a nd availability. Working for him I quickly learned that there is never enough time in the day, yet he made time for me. Thanks must also be give n to Professor Mills for his insight and commitmen t. I obtained To my family (Papi, Mami, Nana, Tata, Mayri, Arturito, Cri stian, Titi, Eliana, and Rene): thank you all for your unconditional love and support. Part of who I am is you. Fina lly, to my fianc, Michael Knowles: thank you for putting up with me during this long and strenuous process. You kept me grounded; you kept me sane.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 LIST OF FIGURES ................................ ................................ ................................ ........... 6 ABSTRACT ................................ ................................ ................................ ..................... 7 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ ....... 8 2 LITERATURE REVIEW ON PRIVACY, THE PUBLIC DISCLOSURE OF PRIVATE FACTS TORT, AND NEWSWORTHINESS ................................ ............................... 18 Part I: Laying the Privacy Tort Foundation ................................ ................................ ... 18 Part II: Th e Public Disclosure of Private Facts Tort ................................ ....................... 22 Part III: Who Knows What is Newsworthy: How the Courts Have Determined Newsworthiness in Public Disclosure Cases ................................ .............................. 30 Part IV: The Current State of the Public Disclosure Tort ................................ ................ 45 3 PRIVACY AND FACEBOOK ................................ ................................ ................... 47 Part I: Communication Tools on Facebook ................................ ................................ ... 54 Part II: User Motivations, Behavior and Expectations on Facebook ................................ 56 Part III: Privacy Expectations on Facebook ................................ ................................ .. 60 Part IV: Disclosure as a Privacy Risk ................................ ................................ .......... 69 4 MODIFYING THE NEWSWORTHINESS PRIVILEGE TO FIT DISCLOSURES ON FACEBOOK ................................ ................................ ................................ ............ 75 Promises of a Free Press are Kept ................................ ................................ ............ 79 ................................ ................................ ....... 82 5 A USER CENTRIC APPROACH TO DETERMINING WHAT IS NEWSWORTHY ..... 96 6 CONCLUSION ................................ ................................ ................................ ....... 112 LIST OF REFERENCES ................................ ................................ ................................ 116 BIOGRAPHICAL SKETCH ................................ ................................ ........................... 125
6 LIST OF FIGURES Figure page 4 1 Traditional Publication Model ................................ ................................ ........................... 77 4 2 Facebook Publication Model ................................ ................................ ............................. 77
7 Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requ ir ements for the Degree of Master of Arts in Mass Communication PUBLIC DISCLOSURE OF PRIVATE FACTS ON ONLINE SOCIAL NETWORKS: ADAPTING NEWSWORTHINESS TO THE FACEBOOK AGE By Mirelis Torres Rodriguez May 2012 Chair: Clay Calvert Major: Mass Communication In a 2011 case, Snyder v. Phelps Chief Justice John G. Roberts announced that any distinction between speech that concerns public matters and speech that concerns purely private d form of a speech jurisprudence: where is the line to be drawn between the right to privacy and the right to free speech? This thesis attempts to answer this question in the context of the public disclosure of private facts tort and disclosures on the popular online social network, Facebook. Specifically, this thesis considers the newsworthiness privilege of the public disclosure tort and argues that the natur centric disclosure, along with several other factors, that courts commonly considered in defamatio n cases.
8 CHAPTER 1 INTRODUCTION I confess that I do not entertain that firm and complete attachment to the liberty of the press which is wont to be excited by things that are supremely good in their very nature. I approve of it from a consideration more of the evils it prevents, than of the advantages it insures. If any one could point out an intermediate and yet a tenable position between the complete independence and the entire servitude of opinion, I should, perhaps, be inclined to adopt it; but the d ifficulty is, to discover this intermediate position. -Alexis De Tocqueville Democracy in America 1 Although these words were penned nearly 175 years ago, they still ring true today. 2 taps into a perpetual tension in Fir st Amendment 3 jurisprudence: a struggle between the ideals, goals and values of a free press and free speech, on the one hand, and the realities, externalities and abuses of allowing such freedom, on the other. Undoubtedly, permitting free speech and a fre e press contributes diverse values to a democratic and republican society. 4 Free expression, for instance, allows the voting public to openly 1 A LEXIS D E T OCQUEVILLE D EMOCRACY IN A MERICA 91 (Richard D. Heffner ed., Signet Classic 2001) (1840). 2 See Malcolm Wallop, Tyranny in America: Would Alexis de Tocqueville Recognize this Place? 20 J. L EGIS 37, 40 41 (1994) (Wallop in writing about the state of American government during the 1990s reflects on th century Democracy in America In Democracy in America de Tocqueville shared his observations and impressions of American society and government during the first half of the 19 th 3 The First Amendment to the United States Constitution provides, in pertinent part, that C ONST amend. I. The Free Speech and Free Press Clauses were incorporated nearly ninety years ago through the Fourteenth Amendment Due Process Clause as fundamental liberties to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 4 See R ODNEY A. S MOLLA F REE S PEECH IN AN O PEN S OCIETY 12 ( First Vintage Book s ed., 1993) (1992) (addressing the importance of free speech in a democratic and self governing society). Professor Smolla, current President of Furman University, writes:
9 charter through 5 Furthermore, the press can serve as an expressive outlet for the dissenting minority. 6 In addition and ideally, a free press increases our understanding and awareness of the social, political and econom ic issues affecting 7 These twin freedoms of speech and press, however, also can be disruptive and manipulative forces in a democracy. A free media can be used to spread lies, distort reality, misleadingly shape public opin ion, and disseminate other deceptively harmful information. As far as journalism is concerned, American attitudes toward a free press have wavered throughout Free speech is an indispensable tool of self governance in a democratic society. Th interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of ing Landmark Communications, Inc. v. Virginia, 435 will and to speak as you think are means indispensable to the discovery and spread California, 274 U.S. 257, 275 (1927))) See also L EE C. B OLLINGER I MAGES OF A F REE P RESS 5 ( Univ. of Chi. Press ed., 1991) (1991) a democratic system of g 5 S MOLLA supra note 4, at 13. 6 Id squelch the speech of the minority. When this conflict of values occurs, a society will be both more stable and more societies are not to explode from festering tensions, there must be valves through which the citizens may blow off steam. Openness fosters resiliency; peaceful protest displaces more 7 Id. of the thought to gain acceptance in the competition of the market, then in the long run the best test of intelligent
10 history, 8 but American courts, specifically the United States Supreme Court, have followed the sam e line of reasoning that Alexis De Tocqueville espoused: freedom with some danger is better than servitude. 9 Indeed, the trend reflected in Supreme Court decisions, as well as lower court opinions, has been to expand the scope of First Amendment rights and freedoms. In the last 100 years, the 8 See F IRST A MENDMENT C TR ., S TATE OF THE F IRST A MENDMENT 2 (2011), http://www.firstamendmentcenter.org/publications/madison/wp content/uploads/2011/07/sofa 2011 reports.pdf (providing a study on the state of the First Amendment in the United States that shows changing American attitudes towards the media in the last seven years. For example, the while 58% believed that there were biases in the media. Americans increasingly believe that the media are biased, as 33% still think the media report without bias and 66% see a bias in the 9 See Near v. Minnesota, 283 U.S. 697 (1931). Chief Justice Hughes eloquently wrote in Near : On this footing the freedom of the press has stood; on this footing it yet stands. Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It has accordingly bee n decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source the United States owe much of the lights which conducted them to the ranks of a free and independent nation, and which have improved their political system into a shape so that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day und er the infirmities of a sticky Confederation? Might they Id. at 718. See also N.Y. Times Co. v. U.S., 403 U.S. 713 (1971) (holding that the federal government was not justified in enjo ining the publication of confidential information bearing on the United States involvement in the Vietnam War); Florida Star v. B.J.F., 491 U.S. 524 (1989) (holding that Florida could not punish The Florida Star for publishing, contrary to state law, the n ame of a minor who had been recently raped).
11 scales of judgment have gradually shifted from merely prohibiting prior restraints while allowing post speech punishment punishing speech that had a bad tendency 10 11 to punishing only particular categories of speech such as obscenity, fighting words, defamation, 12 and false and misleading commercial speech. 13 Courts now are more protective of speech, 14 the Westb oro Baptist Church 15 16 illustrate. This is the legacy of First Amendment jurisprudence in our country. As far as the press and mediums of communications are concerned, the Supreme Court has developed what are argua bly functional and normative approaches to issues involving 10 See police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to cor rupt public morals, incite to crime, or disturb the public peace, is not open 11 whether the words used are used in such circumstances and are of su ch a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right 12 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (writing that there are certain categories lewd and obscene, the those by which their very utterance added). 13 64 (1980) do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than inform it, or commercial speech related to 14 See generally G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America 95 M ICH L. R EV 299, 299 (1996) (writing about a trend century progression of increasingly speech 15 Snyder v Phelps, 131 S. Ct. 1207 (2011). 16
12 communications via print newspapers, over the air broadcasting, cable and the Internet. 17 The Court has conceptualized and established a medium specific First Amendment jurisprudence that reflects technological differences between the media and prevailing social norms. One tactic used by the U.S. Supreme Court to provide the press with heightened protection in defamation actions was the 1964 adoption of the actual malice standard in cases filed by public officials over comments about their official conduct. 18 Another approach to heightened press protection was to integrate a public interest or public concern element or what 17 Compare Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974) (adopting the concept of editorial judgment to declare a Florida law unconstitutional because it interfered with the with FCC v. Pacifica medium and that consequently a radio station with Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (the court distinguished between broadcast television and cable television, an d determined that there were sufficient differences for it to hold that laws restricting speech on cable television warrant intermediate scrutiny), and with Reno v. ACLU, 521 U.S. 844, 870 (1997) (the court decided to treat the Internet more like a print m edium than a applies to the Internet). 18 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (adopting the constitutionally based press protection against defama see also Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (the court fur made with the high degree of awareness of their probable falsity de manded by New York Times the defendant in fact entertained se rious doubts as to the truth of his publication. Publishing with pu blic figure plaintiff must prove more than an extreme departure from professional standards or to increase its circulation cannot provide a sufficient basis for v. New Yorker Mag., Inc., 501 U.S. 496, 510 (1991) (the court finds that a public figure plaintiff defendant published the defama
13 sometimes is referred to as the newsworthiness element into invasion of priv acy torts. 19 In 1940, the Circuit Court of Appeals for the Second District in Sidis v. F R Publishing Corporation 20 pt. 21 The Court found that it was the prying of the press. Everyone will agree that at some point the public interest in obtaining information becomes domin 22 Sidis involved a former child prodigy, William James Sidis, and a publication in the New Yorker magazine that prodigy years. Sidis filed an 19 See Samantha Barbas, The Death of the Public Disclosure Tort: A Historical Perspective 22 Y ALE J.L. & H UMAN 171, 199 (2010) (writing about the historical and social underpinnings leading to the development and decl ine of the public disclosure tort). Barbas writes that: s defense or privilege, which developed simultaneously in this period, immunized media defendants from invasion of Id. a t 199. 20 Sidis v. F R Pub. Corp., 113 F.2d 806 (2d Cir. 1940). 21 See Vicent Blasi, The Pathological Perspective and the First Amendment 85 C OLUM L. R EV 449 (1985). P rofessor Blasi addresses the right to know doctrine in First Amendment jurisprudence and argues that: If the right to speak is important in large part because of the benefits audiences derive from the information and ideas disseminated by speakers, then a right to and events, would seem a natural complement to the right to speak. There is no shortage of rhetoric in the first amendment tradition extolling the right to know, but only recently has the rhetoric ripened into judicial doctrine. Id. at 489. 22 Sidis, 113 F. 2d at 809.
14 i nvasion of privacy claim against the New Yorker but the Circuit Court affirmed the dismissal of 23 The newsworthiness concept was somewhat of a godsend for the press. Initially, the press used newsworthiness as a defense to invasion of privacy claims, 24 but by the 1970s, newsworthiness became an element of the public disclosure of private facts tort, leaving the burden on the plaintiff rather tha n the news media to prove that a publication is not a matter of public concern. 25 There has long been much controversy over what exactly is meant by judgment as to wha t is or is not news. 26 a simplistic formula emerges: if the news media publicize a matter, then the matter is of legitimate public concern or newsworthy. 23 Id. 24 Id. 25 See R ESTATEMENT (S ECOND ) OF T ORTS § 625D (1977) (outlini ng the elements of the public disclosure tort). The Restatement (Second) establishes that: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of a legitimate concern to the public) Id. (emphasis added). See also Amy Gajda, Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press 97 C AL IF L. R EV 1039, 1051 (2009) (providing a brief history of the newsworthiness concept that notes its transformation from a defense to an element of the public disclosure tort). 26 See Amy Gajda, Judging Journalism: The Turn Toward Privacy and Judicial Regu lation of the Press 97 C ALIF L. R EV 1039, 1062 (2009) (observing that Supreme Court opinions have alesce around the idea that judges
15 In the last decade and a half, however, tech nological innovations have obliterated the traditional one to many model of mass communications, 27 calling into question the very nature of news and newsworthiness on new media. Today, everyone and anyone can report to the masses, but do readers of social n etworks treat the disclosure of private information as if it were akin to news reported in a mainstream newspaper or on the network evening news? For diary i an online social network and provided it to the newspaper for publication. The case, Moreno v. Hunford Sentinel, Inc. 28 did not turn on whether the publication was n ewsworthy, but instead it served as a ready example of the potential conflicts that arise when individuals use online social networks to publish information. What standard of newsworthiness will the courts apply to public disclosure cases arising out of pu blications on social networks? That is the central question of this thesis and one made particularly relevant by a recent high profile case in which In particular, the Supreme Court in Sn yder v. Phelps 29 attempted to define in March 2011 what it has in the past largely avoided defining: newsworthiness. In Snyder, the Supreme Court 27 See generally L AWRENCE L ESSIG C ODE V ERSION 2.0 2 (commenting on the effect that the Internet has had on the traditional mass media model: the old one to man y architectures of publishing (television, radio, newspapers, books) were complemented by a world in which anyone could become a publisher. People could communicate and associate in ways that they had never done before. The space seemed to promise a kind o f society that real space would never allow freedom without anarchy, control without government, consensus without power). 28 172 Cal. App. 4 th 1125 (2009). 29 131 S. Ct. 1207 (2011).
16 public conc 30 Prior to Snyder the judicial record on issues of newsworthiness reveals that judgment. 31 In establishing his test for newsworthiness, Chief Justice Joh n Roberts pronounced 32 Chief Justice Roberts further elaborates by explaining th factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said 33 In light of Snyder v. Phelps this thesis addr esses two questions: Should the legal standard of newsworthiness, as it is applied in the public disclosure of private facts tort, be modified when private, truthful information is posted by non journalists on social networking sites such as Facebook?; an d When applying the concept of newsworthiness to private, truthful information posted by non journalists on social networking sites such as Facebook, should courts take into account criteria and variables relating to the expectations of the users of such sites, as well as technological characteristics of the precise manner, mode or location of communication on an online social network site? To begin to address these questions, Chapter II initially provides a literature review of the relevant law review art icles and case law on the tort of public disclosure of private facts and, more specifically, on the newsworthiness standards that courts have adopted in the past. Chapter III then describes and discusses the specific characteristics of Facebook that may gi ve cause for courts to construct a modified newsworthiness standard that adapts to the nature of online social networking. Next, Chapter IV analyzes existing newsworthiness standards and how they might 30 Id. 31 See Gajda, supra note 26. 32 Supra note 29, at 1216. 33 Id (emphas is added).
17 apply to several hypothetical situations involving di sclosures on Facebook and other online social networks. Chapter V proposes that several new factors must be included in the newsworthiness equation when a disclosure is made on Facebook. Finally, Chapter VI concludes by arguing that the nature of disclosur es on online social networks and the increasing use of these networks by society as a whole demands a resurgence of the tort of public disclosure, and, more abstractly, a reconsideration of the scope of First Amendment freedoms as they exist in cyberspace.
18 CHAPTER 2 LITERATURE REVIEW ON PRIVACY, THE PUBLIC DISCLOSURE OF PRIVAT E FACTS TORT, AND NEWSWORTHI NESS Part I: Laying the Privacy Tort Foundation No paper, thesis or article on the public disclosure of private facts tort is ever complete without first paying obligatory, yet exceedingly well deserved, homage to Samuel Warren and Louis Brandeis and their influentially famous Harvard Law Review article, The Right to Privacy 34 In The Right to Privacy the duo asserted more than a century ago that then rece nt innovations in newsgathering and reporting techniques warranted recognition of a new principle the right to privacy. 35 The right to privacy, as Warren and Brandeis succinctly explicated it, is 36 to control and manage his public personae in light of an increasingly aggressive and intrusive press. 37 34 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy 4 H ARV L. R EV 193 (1890). 35 See id. invaded the sacred precincts of private and domestic life; and nu merous mechanical devices from the house 36 Id. 37 Warren and Brandeis lamented how the press was exercising its freedom, contending that: The press is ov erstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the det ails of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual ; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury).
19 In 1890 more than a century before the social media technologies that are the focus of this thesis were invented Warren and Brandeis were primarily 38 characteristic of newspapers. 39 Newspaper reportag was euphemistically 40 interest in the lifestyles of the rich and famous long before there was a television of the same named hosted by the aptly surnamed Robin Leach. As a result, public demand for news stories about public figures and public officials increased, and the press was all to eager to oblige. 41 Id. at 196. See also H ARV L. R EV A SS N 16 H ARV L. R EV 72 alone, is one which must ultimately be recognized in these days when curiosity 38 L EONARD D OWNIE J R & R OBERT G. K AISER T HE N EWS A BOUT T HE N EWS : A MERICAN J OURNALISM IN P ERIL 17 (2002). 39 See id. (Downie and Kaiser in commenting upon the state of newspaper reporting in the late restraint was not a feature of this era, and the competition among papers often 40 See Journalism, and the Criminal Trial 1898 1902 8 N EV L.J. 541, 547 (2008) (Th e author examining the history of yellow journalism writes that: its two biggest practitioners Joseph Pulitzer of the New York World and William Randolph Hearst of the New Yo first used by the press in 1897 by the New York Tribune to refer to the sensational crime news, scandal and gossip, divorces an 41 See D OWNIE J R & K AISER supra note 38, at 16 (The authors write that: Newspaper readership grew further during the Civil War, which was covered by legions of reporters. Some papers hired artists to produce illustrations of the battlefields to a ccompany dispatches from the front. After the war, Joseph Pulitzer and William Randolph Hearst built the first mass circulation press empires. Theirs and other big city newspapers grew in numbers and size with ever more sensational coverage of sex, violenc e and the scandals of high society. The biggest cities had multiple newspapers publishing numerous editions every day.
20 The Right to Priv acy heralded a new conception of privacy. It advanced what First 42 More specifically, this then new and modern conception of privacy encompassed mo re than traditional, property based limits on public and private space; 43 it expanded to protect information. 44 45 The new concept was conceived to keep those intimate and personal details of our lives and industry confidential. The American legal system did not immediately acknowledge the legal validity of this new privacy concept, but it would only be a matter of time. Immediately following publication of The Right to Privacy, philosopher s, legal scholars informational privacy right. 46 The main argument in opposition was that an individual waives Competition for readers and advertising dollars was intense. The biggest papers sold hundreds of thousands of copies a day). 42 R ODNEY A. S MOLLA F REE S PEECH IN AN O PEN S OCIETY 121 (First Vintage Books ed., 1993) (1992). 43 See Warren & Brandeis, supra note 1 at 193 (Warren and Brandeis begin their Harvard Law Review article with a brief historical account of the legal remedies available t o individuals before with life and property, for trespasses vi et armis subsumed by the concepts of life and propert 44 See S MOLLA supra note 9 at 121 (Smolla, current President of Furman University, writes that 45 Id. 46 Compare Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure 53 D UKE L.J. 967, 1027 28 t to rationales for protecting privacy is to prevent slipping down the slope to a world in which people expect less privacy, and privacy continues to evaporate Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People from Speaking About You 52 S TAN L. R EV 1049, 1050 51 (2000) (asserting that
21 the right to be free from publicity whenever he or she steps outside the home to engage in public life. 47 Opponents also fretted about the effect that allowing privacy claims would have on the efficiency of the judicial system. 48 They believed that judicial recognition of privacy based claims, which are meant to re medy intangible harms such as mental distress, shame and humiliation, might result in an influx of fraudulent and unsubstantiated claims. Eventually, however, proponents won the day. One by one, states adopted the legal concept and recognized invasion of privacy as a legitimate cause of action. 49 By 1960 there was an abundance of case law addressing invasion of privacy complaints, but no cohesive principles Professor Pr osser is credited for organizing and structuring the invasion of privacy case law. 50 o information privacy my right to control your communication of personally identifiable information about me is a right to have the government stop you from con stitutionally sound, broader information privacy rules are not easily defensible under existing 47 See H ARV L. R EV A SS N Development of the Law of Privacy 8 H ARV L. R EV 280, 281 (1894) (The Harvard Law Review Association briefly int author of another law review article titled The Right to Privacy adverse position to the right to of all he has waived his r 48 See H ARV L. R EV A SS N 16 H ARV L. R EV 72 (1902) (The authors, commenting on the outcome of Roberson v. Rochester Folding Box Co. in which the court denied relief to a plaintiff whose like ness was used in an advertising without her consent, write 49 See William L. Prosser, Privacy 48 C ALIF L. R EV 383, 3 86 (1960) (Professor Prosser writes 50 See Neil M. Richards & Daniel J. Solove, 98 C ALIF L. R EV 1887 (2010).
22 and organized the law, giving it an order and legitimacy that it had previously lacked 51 52 Professor Prosser is just as influential now as Warren and Brandeis were in the ea rlier days of privacy law. While Warren and Brandeis planted the seed of privacy as the right to be let alone, Prosser created the analytical framework that most courts still apply today to invasion of privacy cases. 53 Part II: The Public Disclosure of Priv ate Facts Tort The public disclosure of private facts tort, hereinafter referred to as public disclosure, is the cause of action that Warren and Brandeis envisioned when they wrote their 1890 article. 54 Public disclosure is a tort fashioned to protect, or a a constitutional right established by the First Amendment. 55 51 Id. at 1887. 52 Id. at 1889. 53 Richards and Solove explain that: torts scholar of his time, Prosser was able to ensure that his interpretation o f the privacy torts became the dominant one. In addition to being the most well regarded torts scholar, Prosser was the leading treatise writer and casebook author. He was also the chief reporter for the Second Restatement of Torts, in which he codified hi s scheme for tort privacy. His influenced encouraged courts and commentators to adopt his division of tort privacy into four causes of action of intrusion, disclosure, formul ation of the privacy torts as the primary authority Id. at 1890 (emphasis added). 54 See Sanchez Abril, infra note 24 impetus for the Warren 55 See Erwin Chemerinsky, Balancing the Rights of Privacy and the Press: A Reply to Professor Smolla 67 G EO W ASH L. R EV 1152, 1161
23 was not an absol prohibit any publication of matter which is of public or general interest 56 With this statement the authors acknowledged the inherent conflict between privacy and free speech and they anticipated a dilemma that still confounds courts: 57 determining when 58 However, it would take years in fact it would take close to forty years before an American court would hear a cause of action for public disclosure. Between 1931 and 1942 there were three main public disclosure cases: 1) Melvin v. Reid ; 59 2) Sidis v. F R Publishing Corporation ; 60 and 3) Barber v. Time, Inc 61 Melvin v. Reid 62 became the leading public di sclosure case after it was handed down by 63 In Melvin Gabrielle Melvin, formerly known as Gabrielle Darley, sued the defendant for producing a film called The Red Kimono the of public disclosure of private facts inescapably requires a balancing of the speech interests with 56 Warren & Brandeis, supra note 1 at 214. 57 See Patricia Sanchez Abril, Recasting Privacy Torts in a Spaceless World 21 H ARV J.L. & T ECH 1, 29 (2007) (Assistant Professor of Business Law Patricia Sanche z Abril, from the University of Miami School of Business Administration, considers the history of newsworthiness 58 Id. 59 297 P. 91 (1931). 60 113 F .2d 806 (2d Cir. 1940). 61 159 S.W.2d 291 (Mo. 1942). 62 Supra note 26 63 See Prosser, supra note 16 decision which has become the leading case is Melvin v. Reid
24 plot of which pivoted on Me murder. 64 65 The court in Melvin become so prominent that by his very prominence he has dedicated his life to the public, and thereby waived his right to p 66 news events, nor in the discussion of events of the life of a person in whom the public as a rightful interest, nor where the information would be of public benefit, as in the case of a 67 not a private matter, and could therefore be retold with impuni ty. 68 However, the court expressed that the defendant did not have to identify Melvin in the film by her real name because the public did not have interest in that particular detail. 69 Notably, the court acknowledged newsworthiness 64 Melvin 297 P. at 91 (1931). 65 Id. 66 Id. 67 Id. 68 See id. 69 See id. (The court, in considering whether Melvin has an actionable right to sue, explains that Instead, the cour stated that the story of the picture was taken from true incidents in the life o f Gabrielle Darley,
25 as a defense, but it faile d to explain whether newsworthiness would be an element of the public disclosure tort or a defense for the press. Nine years after Melvin the U.S. Court of Appeals for the Second Circuit decided Sidis v. F R Publishing Corporation 70 Plaintiff William Jam es Sidis, a former child prodigy, sued the defendants for publishing a where are they now style article in The New Yorker magazine. 71 Sidis claimed that after his prodigy years, he intentionally distanced himself from society and began living a reclusive li fe, and that biographical exposition on Sidis current life invaded his privacy, causing him mental and emotional distress. 72 The article detailed the festyle that Sidis adopted after spending his childhood years in the spotlight. 73 The court in Sidis R privacy interest. 74 details of private life an absolute immunity from the prying of the press. Everyone will agree that at some point the public interest in obtaining i nformation becomes dominant over the 70 113 F.2d 806 (2d Cir. 1940). 71 See id. at 807 72 See id. 73 See id. ishments in mathematics and the wide spread attention he received, then recounts his general breakdown and the revulsion which Sidis interview with Sidis at his 74 See id. id the answer to the question of whether or not he had fulfilled his early promise, was still a matter of public concern
26 75 The court, however, noted that newsworthiness may or may 76 as that question must be determined by the offensiveness of the publication in lig 77 In 1942, the Supreme Court of Missouri in Barber v. Time, Inc. 78 remitted Dorothy Barber Barber sued Time after one of its health magazines published an condition. 79 At the time, Barber suffered from an alimentary illness the more she ate, the more weight she lost. 80 A picture of Barber while she was in a hospital bead accompanied a magazin e article titled The Starving Glutton 81 Time defended on First Amendment grounds, claiming that 82 granted it the right to publish. The court echoed several of the public disclosure eleme nts that the Second Circuit Court of Appeals in Sidis and the California Court of Appeals in Melvin addressed in their opinions, 83 75 Id 76 Id. 77 Id. 78 159 S.W.2d 291 (Mo. 1942). 79 Id. at 293. 80 Id. 81 Id. 82 Id. 83 Compare id. at 293 94 (The court w rites: It is only where the intrusion has gone beyond the limits of decency that liability accrues. These limits are exceeded where intimate details of the life of one who has never manifested a desire to have publicity are exposed to the public, or where photographs of a person in an embarrassing pose are surreptitiously taken and
27 84 an d as far as the public interest is concerned, the court found that 85 the court to say first whether the occasion or incident is one of proper public inter 86 The published. On the other hand, there is no invasion of a right of privacy in the description of the ordinary goings and comings of a person or of weddings, even though intended to be entirely private, or of other publications to which people do not ordinarily seriously object. In determining liability, the knowledge and motives of the defendant, the sex, station in life, previous habits of the plaintiff with reference to publicity, and other similar matters are considered. A distinction can be made in favor of news items and against advertising use. It is only when the defendant should know that the plaintiff would be justified in feeling seriously hurt by the conduct that a cause o f action exists) with Sidis v. F R Pub. Corp., 113 F.2d 806, 809 (2d Cir. 1940) (The court focuses on whether or comment on whether or not the news worthiness of t he matter printed will always constitute a the publication. The court writes that : s position characters, truthful comments upon dress, speech, habits, and the ordinary aspects of personality will usually not transgress this line. Regrettably or not, the misfor considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspaper, books, and magazines of the day), and Melvin, supra note 26 at 93 (The court adduces the following two principles from existing his very prominence he has de dicated his life to the public, and thereby waived his right to privacy. There can be no privacy in that which is already public exist in the dissemination of news and news events, nor in the discussion of events of the life of a perso n in whom the public has a rightful interest, nor where the information would be of public benefit as 84 Barber supra note 28 at 294. 85 Id. at 295. 86 Id.
28 substantial evidence tending to show a serious, unreasonable, unwarranted and offensive 87 Essentially the court in Barber combined the elements presented by the courts in Sidis and in Melvin and forged a two part test for public disclosure claims: The court first decides if the matter published concern 88 If the court finds that it does not, then, unreasonable, unwarranted and offensive interference with ano 89 If the court finds that there is substantial evidence, then it sends the case to the jury. Factors that the court considers under the first part of the test, which is essentially the court making a newsworthiness determination, ar e: 1) the status of the plaintiff as a private or public figure; and 2) the nature of the information disclosed and whether it involves a private matter or a matter of public concern or interest. 90 The second part of the Barber test essentially considers th e offensiveness of the publication in light of what the court in Sidis 91 By no means were Melvin Sidis and Barber the only public disclosure cases, but they are significant because they clearly present the key el ements of the public disclosure tort. By 1960, they become the salient elements, or principles, arising out of the myriad of public disclosure 87 Id. 88 Id. 89 Id. 90 See supra note 53 91 Id.
29 cases. 92 In his Privacy 93 article, Prosser analyzes and organizes these public disclosure elements, and concludes that a plaintiff suing for public disclosure must prove the following: The facts disclosed received publicity, 94 The facts disclosed are private and not public, 95 and objectionabl 96 Later in 1977, Prosser codifies a modified version of the public disclosure elements in the Restatement (Second) of Torts 97 According to the Restatement : One who gives publicity to a matter concerning th e private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that would be highly offensive to a reasonable person, and is not of legitimate concern to the public. 98 This version of the p ublic disclosure elements still dominates legal analysis of public disclosure cases today. 99 This thesis, however, focuses on clause (b) of the public disclosure tort, which is 92 See generally infra note 60 (the public disclosure elements that the courts in Melvin Sidis and Barber address are essentially the same elements that Professor Prosser presents in his compendium of privacy torts). 93 48 C ALIF L. R EV 383 (196 0). 94 See id. the private facts must be a public disclosure, and not a private one. There must be, in other words, publicity 95 See id. at 394 (Pr 96 Id. at 396. 97 See Richards & Solove, supra note 17 reporter for the Second Restatement of To rts 98 Restatement (Second) of Torts § 652D (1977).
30 interchangeably referred to as the newsworthiness prong or the public interest p ublic concern prong. 100 The next section presents legal scholarship and decisions over the difficulties of determining newsworthiness, and the varying analytical approaches that courts apply in public disclosure cases. Part III: Who Knows What is Newsworthy: How the Courts Have Determined Newsworthiness in Public Disclosure Cases In tort actions under the public disclosure of private facts tort, the First Amendment requires strict scrutiny when information of public concern is -Daniel J. Solve & Neil M. Richards, Rethinking Free Speech and Civil Liability 101 Strict judicial scrutiny, as former Stanford Law Professor Gerald Gunther famously 102 Even though Professor Gunther addressed judicial st rict scrutiny in an Equal Protection context, 103 the standard is nonetheless difficult to satisfy. In the context of a public disclosure action, this essentially means that if will likely fail. 99 See Richards & Solove, supra note 17 100 See Cl ay Calvert, Relationship Among Photographs, Words and Newsworthiness in Journalistic Storytelling, 33 C OLUM J.L. & A RTS 349, 355 101 Daniel J. Solove & Neil M. Richards, Rethinking Free Speech and Civil Liability 109 C OLUM L. R EV 1650, 1656 (2009). 102 Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection 86 H ARV L. R EV 1, 8 (1972). 103 See generally id. (analyzing the evolution of strict judicial scrutiny in cases arising under the Equal Protection Clause).
31 And this is why clause (b) of the public disclosure tort is so important, and at the same time serves as the bane for all public disclosure plaintiffs. 104 The newsworthiness defense or element of the public disclosure tort has turned out t o be an enigma for courts. 105 In determining newsworthiness, courts may consider several questions: Is the plaintiff a public or private figure? 106 If the plaintiff is a private figure, is the information public? 107 Is the disclosure so intrusive as to viol 108 Does the matter disclosed involve events that took place in public? 109 Does the information or matter disclosed concern the public because it contributes value to the overall public discourse, or because it merely 110 Courts around the country have considered these questions by application of four varying newsworthiness tests. 111 According to Professor of Law at the University of Florida Frederic G. 104 See M ILLS infra note 165 for false light and public disclosure of private facts almost always fail because the disclosures are 105 See id. at 231 (Professor Mills observes that courts have taken several different analytical and conce 106 See id. at 231 107 See id. 108 Sidis v. F R Pub. Corp., 113 F.2d 806, 809 (2d Cir. 1940). 109 See M ILLS infra note 165 at 231. 110 See Amy Gajda, Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press, 97 C ALIF L. R EV 1039 106 1 (2009) from what the public needed to know to what the public wanted to know; indeed, it often 111 See M ILLS infra note 165 at 231 (
32 Levin School of Law, Jon Mills, these fou 112 2) the California approach established in Diaz v. Oakland Tribune, Inc. ; 113 114 and 4) the press knows best approach. 115 Courts have preferred this last approach over the last fifty plus y ears, 116 but recently, the Supreme Court, in Snyder v. Phelps 117 has presented its own version or analytical approach towards determining when matters are private or of public concern. 118 The Restatement (Second) of Torts (hereinafter referred to as the Restatm ent ) approach to newsworthiness is probably the most comprehensive. Section 652D of the Restatement presents a number of factors that are meant to facilitate newsworthy determinations. 119 The first factor is whether a person is a voluntary or involuntary pub lic figure. 120 Voluntary public figures are your celebrities, professional athletes, and other persons that actively seek out publicity or are willingly involved in matters that generate public interest. 121 Involuntary public figures are people who unwillingly 112 Id. 113 139 Cal.App.3d 118 (Cal. Ct. App. 1983). 114 M ILLS infra note 165 at 231. 115 See M ILLS infra note 165 116 See Gajda, supra note 77 century, courts have resolved the tension between privacy and press freedoms by deferring heavily to journalists 117 131 S. Ct. 1207 (2011). 118 See id. at 1216. 119 R ESTATEMENT (S ECOND ) OF T ORTS § 625D (1977). 120 Id. 121 Id.
33 curiosity and interest. 122 Public figures, whether voluntary or involuntary, have a higher bar to recovery in public disclosure actions. This is true even when publicity is given to facts of the 123 The second Restatement newsworthiness factor is whether the matter publicized is, well, news. 124 The analysis for this factor is narrower than the overa ll newsworthiness examination. According to the Restatement it consists of determining whether the matter publicized 125 For example, stories on crimes, arrests, natural disasters and other catastr ophes, accidents, violence, human interest stories, and 126 This factor echoes the press knows best approach to newsworthiness, 127 but under the Restatement it is simply a part of a multi prong approach to newsworthine ss. The third factor considers the private nature of the facts disclosed. 128 This factor is concerns only public figures. As mentioned earlier, public figures will be hard pressed to win a public disclosure action when the private facts disclosed relate to t he event that raise them to the and are facts unrelated to the original event of public interest, disclosure may be allowed. The Restatement observes: 122 Id. 123 Id. 124 Id. 125 Id. 126 Id. 127 Id. 128 Id.
34 That i nterest, once aroused by the event, may legitimately extend, to some reasonable degree, to further information concerning the individual and to facts about him, which are not public and which, in the case of one who had not become a public figure would be regarded as an invasion of his purely private life. 129 The Restatement checke 130 Disclosure of the intimate prying into private lives for its own sake, with which a reasonable member of the public, with 131 The fourth Restatement public figure. 132 A person may have a lower expectation of privacy because of his association to a p ublic figure. 133 For example, the children of celebrities, like the Angelina and Brad Pitt pack, have less of a privacy claim than children of private individuals. The fifth factor considers the educational, informative, and the entertainment value of the i nformation disclosed. 134 This prong considers the value of information that is not news 135 but nonetheless is educational, entertaining, or 129 Id. 130 Id. 131 Id. 132 Id. 133 Id. 134 Id. 135 Id.
35 informative to the public. 136 tor, the second factor above, The last factor examines the amount of time that has passed from the point of initial public interest in the matter to actual publication. 137 The passage of time is not, however, dispositive on the issue of newsworthiness. 138 For example, the court in Sidis v. F R Publishing Corporation the publicity years and his adult years the hermit years and still foun d that the public had an interest in his adult years. 139 Even though the Restatement approach proffers several factors for guidance, it ultimately lives for its o wn sake, with which a reasonable member of the public, with decent standards, 140 One critique of this approach is that it relies on community decency standards in a time when the traditional conceptions of community are un dergoing transformations. 141 What is a community today? Another critique is that the Restatement test essentially relies on the values, prejudices, and mores of either a judge or the individual members of a jury. In essence the jury, which 136 Id. 137 Id. 138 Id. 139 See Sidis supra note 75 at 809. 140 R ESTATEMENT supra note 8 6 141 See generally, infra note 109 (analyzing the history, application, and constitutional problems of community standards in obscenity and First Amendment cases).
36 represents the at large community (i.e. the majority), 142 is authorized to restrict truthful, yet private speech when it sees fit. 143 This is incongruous with First Amendment values. 144 Furthermore, because individuals differ as to what they value and what they believe to be ri ght and wrong, the community decency standard does not provide legal professionals with a modicum of predictability. 145 The second newsworthiness standard that some courts rely on is found in the California case of Diaz v. Oakland Tribune, Inc. 146 In Diaz Cal adopted a three part newsworthiness test that looks at: 147 142 See Bret Boyce, Obscenity and Community Standards 33 Y ALE J. I NT L L. 299, 303 (2008) (wr 143 Dean Chemerinsky writes: From a First Amendment perspective, liabilit y for public disclosure of private facts is very troubling. First, unlike defamation, which creates liability for false speech, the tort of public disclosure of private facts inherently creates liability for truthful speech. Rarely does the First Amendment allow the law to make the value choice that ignorance is better than knowledge. Chemerinsky, supra note 22 at 424. 144 Id. 145 The California Supreme Court observed that: competing i Amendment rights, because the relative predictability of results reached under such standards minimizes the inadvertent chilling of protected speech, and because standards that can be a pplied objectively provide a stronger shield against the unconstitutional punishment of unpopular speech See Shulman, infra note 134 at 486 (quoting Gertz v. Welch, 418 U.S. 323, 343 (1974)). 146 Diaz, supra note 80 at 132. 147 Id.
37 148 tarily accedes to a position of public notoriety 149 Diaz involved a male to female transsexual plaintiff Toni Ann Diaz, who sued the Oakland Tribune former pas t as a man. 150 After undergoing psychological treatment and surgical procedures that effectively transformed him to a her, Diaz ensured that her high school records, her social 151 She actively and diligently kept the details of her past a secret from everyone except her family and closest friends. 152 Around the time of the disputed publication, Diaz was acting as the first female student body president at the College of Alameda. 153 In the middle of her presidency a controversy arose after Diaz accused school administrators of misappropriating student body funds. 154 Shortly after this scandal one of the secret past as a man. 155 148 Id. 149 Id. 150 Id. at 124. 151 Id. at 123. 152 Id. 153 Id. 154 Id. at 124. 155 More Education Stuff: The students at the College of Alameda will be surprised to learn their student body president, Toni Diaz, is no lady, but is in fact a man whose real name is Antonio. Now I realize, that in these times, such a matter is no big deal, but I suspect his female classmates in P.E. 97 may wish to make other showering arrangements.
38 In Diaz the California court of appeals explained that the appropriate body to determine jury in uniquely well 156 The court did not think the fac t that Diaz was the first female student body president in relation to the fact that Diaz use to be a man was newsworthy per se. 157 As to the social value of the information the defendant argued that it was socially valuable because it served as commentary 158 The 159 and responded that 160 informati on must be viewed in context, and not based upon some arguably meritorious and 161 The article was not making commentary on the role of women in 162 the court of appeals found that there was no See id. at 139. 156 Id. at 133. 157 Id. at 134. 158 Id. 159 Id. at 135. 160 Id. 161 Id. 162 Id. at 132.
39 transse 163 The court further opined that: [T[he fact that [Diaz] was the first woman student body president, in itself, [did not] warrant that her entire private life be open to public inspection. The pu blic arena entered by Diaz is concededly small. Public figures more celebrated than she are entitled to keep some information of their domestic activities and sexual relations private. 164 The court in this case made it clear that even public figures are enti tled to some right to privacy. Their mere status as public figures does not rob them of their right to be let alone, especially when it deals with the intimate sexual details of their lives. 165 This three part newsworthiness test is similar to the Restatemen t approach in that it places the fundamental social value determination in the hands of the jury. Like the Restatement community decency standard, the social value standard asks the jury to make a determination based on their prejudices, values, and mores. The Diaz test is by far the most plaintiff friendly approach used by a court to determine newsworthiness. Thankfully for First Amendment proponents only a minority of jurisdictions follow the California Diaz approach. 166 A third approach to the newsworthin ess analysis is the logical nexus test applied by Shulman v. Group W Productions, Inc. 167 In Shulman nexus between the complaining in 168 The 163 Id. at 134. 164 Id. 165 See M ILLS infra note 165 at 236. 166 See id 167 955 P.2d 469 (Cal. 1998). 168 Id. at 484.
40 169 The high court b elieved that their logical nexus standard was an appropriate middle ground approach to the newsworthiness issue; the standard was neither too normative nor too descriptive. 170 Shulman involved a public disclosure claim against Group W productions, the defend on their show On Scene Emergency Response 171 Ruth Shulman, the plaintiff, was involved in a serious automobile accident, and emergency response servicemen had to use th e jaws of life to extricate her from her automobile. 172 After she was safely removed from her vehicle, she was airlifted to a nearby hospital. 173 Throughout the rescue operation, Joel Cooke, a cameraman for the defendants, was video recording the details of Mr 174 The nurse assisting Mrs. Shulman was also hooked up with a wireless recording device that recorded all of her conversations with the disoriented and shocked plaintiff. 175 The video footage and sound 169 Id. 170 The California Supreme Court writes: An analysis measuring newsworthiness of facts about an otherwise private person in voluntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates considerable deference to reporters and editors, avoiding the likelihood of unconstitutional interference with the freedom of the press to re port truthfully on matters of legitimate public interest. Id. at 485 171 Id. at 475. 172 Id. 173 Id. 174 Id. 175 Id.
41 recordings were packaged into a nine minute long segment and broadcast shortly after the accident. 176 The court in Shulman held that as a matter of law the broadcast material depicting the disclos ure. 177 The court considered the newsworthiness of the overall subject matter of the conversations), and found that both the subject matter of the broadcast and the details of the broadcast were newsworthy as a matter of law. 178 The high court in concluding that the details of the broadcast are newsworthy reasons that: The broadcast segment makes apparent that this type of emergency care requires not only medical knowl edge, concentration and courage, but an ability to talk and listen to severely traumatized patients. One of the challenges that Carnahan [the nurse wearing the wire] faces in assisting Ruth is the confusion, pain and fear that Ruth understandably feels in the aftermath of the accident. For that reasons the shown) and audio showing her disorientation and despair were substantially r. 179 The Shulman court took a different approach than the court in Melvin v. Reid when it held that the identity and voice of the plaintiff were newsworthy. 180 In Melvin the court held that the was not a matter of legitimate public concern. 181 So the logical nexus test appears to be a more press friendly approach than the 176 Id. 177 Id. at 477. 178 Id. at 488. 179 Id. 180 See Shulman, supra not e 134 181 Id.
42 Restatement and Diaz standards, but arguably it tips the balance against privacy interests since all that is required is releva nce. There is no need to show that information is socially valuable. The fourth and most commonly used approach to the newsworthiness question is to let the press decide. 182 Courts are reluctant to second 183 of the media because, 184 wn limited 185 when it comes to matters of journalistic processes and procedures. For First Amendment advocates this seems to be the preferred approach. It grants a broad scope of freedom to the press and limits the privacy rights of individuals. The California Supreme Court in Shulman explained that the let the press decide model 186 approach, and that it was too much of an extreme position. According to the California Supreme Court, if all coverage that sells papers or boosts ratings is deemed newsworthy it would seem to swallow the publication of 187 182 See Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warr Privacy Tort, 68 C ORNELL L. R EV 291, 353 183 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 255 (1974). 184 Zimmerman, supra note 149 185 Gajda, supra note 77 at 1041. 186 Shulman supra note 134 at 481. 187 Id.
43 T he let the press decide model is antithetical to the Restatement and Diaz models. This model grants the broadest freedom to the press, while the Restatement and Diaz approaches place the media in the mercy of majoritarian conceptions of decency and social values. Suffices to say that First Amendment advocates and public disclosure defendants prefer the let the press decide model, while privacy proponents and public disclosure plaintiffs favor the Restatement and Diaz approaches. The last and most recent app roach to newsworthiness is the one that Chief Justice John G. Roberts espoused in Snyder v. Phelps 188 The Supreme Court in Snyder refers to the underlying the pub 189 In an attempt to define the boundaries of speech on matters of public concern the Court irrelevant to the question whether 190 This seems to standards, or the morbidity and sensationalistic prying of the media, considerations in the overall ne wsworthiness determination. However, this may also suggest that the newsworthiness analysis is separate from any examination of community decency standards. Nonetheless Chief Justice Roberts proffered a new test for delineating between matters that are pur ely private and those that concern the public. The Chief Justice explained that 188 Snyder v. Phelps, 131 S. Ct. 1207 (2011). 189 Id. at 1216 (quoting San Diego v. Roe, 543 U.S. 77, 83 (2004)). 190 Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)).
44 191 Rob erts qualifies this context nor factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was 192 One by one the Court applied this new content form context test and determined that: 1) at large are concerned about; 193 eech took place in a public place, on public property, and it was legal, therefore the context did not implicate private matters; 194 and 3) the 195 Snyder is that it departs from the highly deferential let the press decide model of newsworthiness. The Snyder decision corroborates what Professor Gajda observed in her 2009 article, Judging Journalism: The Turn Toward Privacy and Jud icial Regulation of the Press 196 position of deference to journalists in the legal definitions of newsworthi ness, especially in 197 191 Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985)). 192 Id. 193 Id. at 1217. 194 Id. 195 Id. at 1218. 196 Gaj da, supra note 77 at 1072. 197 Id.
45 Part IV: The Current State of the Public Disclosure Tort Today many legal scholars and professionals believe that the tort provides little to no protection against invasions of privacy by public disclosure, 198 validity in the tort, 199 especially since the Supreme Court delivered its opinion in a line of cases dealing with the press and the public disclosure tort. 200 198 Former Dean and Professor of Law at the University of Florida Frederic G. Levin College of Law, Jon L. Mills, asserts that: In an action for public disclosure of private facts, newsworthiness and First Amendment protect ions are consistent barriers because many courts define newsworthiness expansively. It seems that the courts are hesitant to find liability in the disclosure of truthful information even when it is gossip, hurtful, and not part of public debate J ON L. M IL LS P RIVACY : T HE L OST R IGHT 187 (Oxford University Press, Inc. 2008). See also Rodney A. Smolla, Accounting for the Slow Growth of American Privacy Law 27 N OVA L. R EV 289, 297 (2002) (Smolla corroborates what Professor Mills asserts above and writes: Mo re formidably, however, the tort of public disclosure of private facts is frustrated incorporated in common law doctrine and mandated by the First Amendment, and a defense that tends to p resent plaintiffs with colossal difficulties). 199 See Samantha Barbas, The Death of the Public Disclosure Tort: A Historical Perspective 22 Y ALE J.L. & H UMAN 171, 172 (2010) disclosure of priva See also Erwin Chemerinsky, Protecting Truthful Speech: Narrowing the Tort of Pu blic Disclosure of Private Facts 11 C HAP L. R EV 423, 430 31 (2008) (Erwin Chemerinsky, dean of public disclosure of private facts, except where publication Dean Chemerinsky makes this conclusion after he observes that the Supreme Court decisions in Cox Broadcasting v. Cohn Florida Star v. B.J.F. and Bartnicki v. Vopper useful way of answering the ce ntral First Amendment problem posed by the tort of public disclosure of private facts: how is it to be determined when the public has a legitimate interest in 200 The Supreme Court has delivered several opinions that essentially establish tha t the press cannot be punished for publishing truthful information that is in the public record or is legally obtained and is of legitimate public interest unless there is a state interest of the highest order.
46 Adding insult to injury, technological innovations in the last few dec ades have transformed the traditional press to consumer model, requiring some sort of modification of the 201 First, as already mentioned, in order to have a cause o f action for public disclosure, the disclosure must be publicized. Historically, this has meant that defendants are typically members of the press. However, today a public disclosure defendant can be anyone; the power of publicity is not solely in the ha nds of the institutional press. Second, and flowing from the fact that anyone can now publicize information, is the requirement that information be shown not to be newsworthy. This becomes increasingly difficult, especially in light of the traditional jur editorial judgment, since, like the power of publicity, the power of editorial judgment does not lie solely with the press it now lies in the hands of you, me, and anyone who has access to the internet, and mor e visibly, is a member of an online social network. The following section describes and outlines the specific characteristics of online social networks, like Facebook, and the characteristics of the different types of social network users. See Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1 97 (1979); Florida Star v. B.J.F., 491 U.S. 524 (1989); Bartnicki v. Vopper, 532 U.S. 514 (2001). 201 Sanchez Abril, supra note 24 at 1.
47 CHAPTER 3 PRIV ACY AND FACEBOOK What are online social networks? They are identifiable by a number of characteristics. For instance, New York University Professor Danah M. Boyd and Michigan State University b based services that allow individuals to (1) construct a public or semi public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by 202 Social network users are able both to meet new people and to reconnect with old friends. What they can share with others depends on the particular characteristics of a social network and on the specific settings of each, but mo 203 According to Northeastern University Professor Alan Mislove and his colleagues, once an individual subscribes to a social with whom [she] associate[s]. The resulting social network provides a basis for maintaining social relationships, for finding users with similar interests, and for locating content and 204 The social network Facebook was founded in February of 2004. 205 Since that time, it has experienced unprecedented growth. In early 2011, Facebook announced it had more than 500 202 Danah M. Boyd & Nicole B. Ellison, Social Network Sites: Definition, Hi story, and Scholarship 13 J. C OMPUTER M EDIATED C OMMC N 210, 211 (2008). 203 Id. 204 Alan Mislove et al., Measurement and Analysis of Online Social Networks, 7 TH A SS N FOR C OMPUTING M ACH S PECIAL I NTEREST G ROUP ON D ATA C OMMC N C ONFERENCE (2009). 205 Facebook, http://www.facebook.com/facebook?sk=info (last visited Nov. 10, 2011).
48 million active users 206 a number then estimated to reach 650 million by the end of 2011. 207 A in fact, it was 150 million users off. According to Facebook, as of November 2012 there were more than 800 million registered users. 208 Furthermore, Faceb ook statistics reveal that: on average, a user has 130 friends; people spend more than 700 billion minutes per month of Facebook; there are more than 800 billion objects that people interact with (pages, groups, events and community pages); the average user is connected to 80 community pages, groups and events; the average user creates 90 pieces of content each month; and more than 30 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) are shared each month. 209 Many people join Facebook not to make new friends, but instead to connect with current and past acquaintances. Users, according to Adam N. Joinson, a reader in Information Systems at ons: (1) social searching using Facebook to find out more about or to reconnect with people they have met offline; and (2) social stalking 210 206 Id. 207 Jackie Cohen, Facebook Surges Toward 650 Million Users A LL F ACEBOOK : T HE U NOFFICIAL F ACEBOOK R ESOURCE Jan. 13, 2011, http://www.allfacebook.com/facebook surges toward 650 million users 2011 01 208 Facebook, http://www.facebook .com/press/info.php?factsheet (Nov. 10, 2011). 209 Id. 210 Adam N. Joinson, of Facebook C ONFERENCE ON HUMAN F ACTORS IN COMPUTING SYSTEMS (2008).
49 Facebook plays an active r ole in the daily lives of many people. 211 Like clockwork, they log on out of habit 212 and live out a cyber social life. Life on Facebook, like life in the real world, compels people to engage in some manner of impression management. 213 At the center of impressi on management is the desire to be liked by others. 214 As humans, we want others to believe that we are happy, successful and well intentioned people. control. 215 It provides provides a safety valve for individuals in the midst of communal life some influence over tra nsactions between the world of personal experience and the world shared with others. With no control over such exchanges, human beings would be unable to exercise choice about their 216 211 See Bernhard Debatin et al., Facebook and Online Privacy: Attitudes, Behaviors, and Unintended Consequences 15 J. C OMPUTER M EDIATED C OMMC N 83, 100 (2009). 212 See id. indicates that it has become and indispens able tool of social capital and connectedness with large 213 See Jenny Rosenberg & Nichole Egbert, Online Impression Management: Personality Traits and Concerns for Secondary Goals as Predictors of Self Presentation Tactics on Facebook 17 J. C OMPUTER M EDIATED C OMMC N 1, 2 Facebook, are particularly interesting to communication researches because they are dedicated specifically to forming and managing impressions, as well as engagin g in relational maintenance and relationship 214 See id. 215 See S ISSELA B OK S ECRETS : O N THE E THICS OF C ON CEALMENT AND R EVELATION 20 (Vintage Books, 1989) (1983). 216 Id.
50 Facebook provides users with multiple tools to manage their profi les and, in turn, control how others perceive them. 217 For example, individuals can post pictures or videos of themselves, other people, events and/or things that reflect their personality. In addition, people can post statements expressing their sentiments and opinions on current events, whether they are personal to themselves or not, and people can solicit information from others. Every thing a person does on Facebook leaves a virtual footprint for everyone else to see, and allows others to perceive the pe rson in the way that person wants to be seen. 218 Users also try to influence how others perceive them on Facebook by adjusting their profile privacy settings. Privacy setting options allow for control over who views profiles and what they view. 219 For exampl e, a person may increase the privacy settings of pictures so that any picture the user posts or is tagged 220 not viewable at all by any other user. The combination of privacy setting controls and user ch oice allows a person to create, develop, and manage a Facebook persona. However, since its inception there have been and continue to be controversies surrounding the effectiveness and 217 See generally Facebook, http://www.facebook.com/facebook/ (visited Nov. 10, 2011). 218 See Katie Ellis, Philosophy of Facebook and the Constructi on of Identity 58 S CREEN E DUC 36, 36 ( 219 See generally Facebook, http://www.facebook.com/press/info.php?factsheet (informing users the 220 Tagging is a facial recognition feature that allows users to identify friends on images they upload onto their profiles. Once a user is tagged in a picture, that picture will become part of that Washington Internet Daily tagging is referred Capito l Hill W ASH I NTERNET D AILY June 14, 2011.
51 221 Other privacy c oncerns that Facebook damaged reputation due to rumors and gossip, unwanted contact and harassment or stalking, surveillance like structures due to backtracking funct ions, use of personal data by third parties, 222 In 2011, Facebook settled with the FTC after several privacy advocacy organizations filed complaints against the social network for carrying out unfair and deceptive business pr actices. 223 The complaints came after Facebook changed its privacy settings and charged that the site mislead users into believing they had sufficient control over their profiles to exclude unwanted third parties from accessing their information. 224 In reality Facebook made certain profile information automatically available to the public and they allowed third party applications 225 to access a wide range of user information. 226 Furthermore, even though the site allowed users to adjust their privacy settings to ex clude third party applications from accessing 221 See Corbin Hiar, M EDIA S HIFT Feb. 8, 2011, http://www.pbs.org/mediashift/2011/02/timeline facebooks stormy relationship with privacy039.html. 222 See Debati n et al., supra note 10 at 84. 223 P ITT T RIB R EV ., Nov. 12, 2011. See also Facebook Settles FTC Charges That It Deceived Consumers By Failing To Keep Privacy Promises, FTC, Nov. 29, 2011, http: //www.ftc.gov/opa/2011/11/privacysettlement.shtm 224 Id. 225 Electronic Privacy Information Center FTC Facebook Settlement, http://epic.org/privacy/ftc/facebook/ (last visitend Dec. 17, 2011) 226 Id.
52 information if a friend on their network downloaded the application. 227 As part of their settlement with the FTC, F acebook must have independent privacy audits every two years and they must enact a comprehensive privacy program. 228 The FTC order will be in effect for the next twenty years. 229 As a result of these and other complaints and the accompanying media coverage, th e public today is more aware of privacy concerns surrounding Facebook. This, however, has not concomitantly evolved with the continual privacy setting and po licy modifications. 230 However, of each individual. Research reveals that users tend to adapt their behavior on Facebook after a privacy concern is raised and publicized, or after they themselves experience some kind of privacy breach. 231 Research also demonstrates that user awareness and expectations change in relation to the users time, knowledge and experience on Facebook. 232 For example, one study suggests that 227 Id. 228 I d. 229 Id. 230 See Debatin, supra note 10 231 See Debatin, supra note 10 hat actually prompts changes to stricter privacy settings rather than second 232 See generally Kevin Lewis et al., The Taste for Privacy: An Analysis of College Student Privacy Settings in an Online Social Network 14 J. C OMPUTER M EDIATED C OMM 79 (2008) private).
53 college students who actively use Facebook have more private profiles than less active users. 233 expressed concerns for their privacy and their actual behavior on Facebo ok. 234 Simply stated, users say one thing but do another. fake user profile s, and publicizing embarrassing private information to harass individuals are 235 This type of third party ol over his Facebook persona. This chapter of the thesis describes, discusses, and addresses the dynamics between privacy expectations and user behavior and attitudes on Facebook. Part I briefly describes the different communication tools available to user s on Facebook, and highlights how message dispersion varies with the tools used for communication. Next, Part II presents and discusses the varying reasons, motivations, and expectations of users on Facebook, focusing on how users create and manage their o nline personality. Part III then addresses user expectation and awareness of privacy issues and flaws on Facebook. Finally, Part IV explores how the disclosure of private, embarrassing facts on Facebook expectations of privacy and control while eroding the ability to develop, maintain and manage a Facebook persona. 233 Id. activity on Facebook is one of them. Other factors include gender of the user, and music preferences). 234 See Debatin, supra note 10 pri 235 Id.
54 Part I: Communication Tools on Facebook Facebook users possess a number of tools through which they can reach a specified category and number of people. It is important to note that Facebook has undergone numerous changes over the years, 236 but, as it exists today, the following tools are commonly used for communication: Wall to wall communication Status updates News feed and the recently added mini news feed Private messages, which are the equival ent to email on Facebook Instant messaging Event pages Pages The amount of reach and visibility a message obtains depends, in part, on the type of tool used to disperse that message. The main and probably most public way to disseminate a message is to write or post everyone that is a friend of either party will be able to see what is written on the wall. The odds wall probably will be fed to the Facebook news feed. 237 236 See generally David Pogue, Facebook Changes Inspire More Grumbling, N.Y. T IMES Oct. 19, 2011, htt p://www.nytimes.com/2011/10/20/technology/personaltech/facebook changes inspire more grumbling state of the art.html (explaining how users reacted to the most recent 237 See Debatin, supra note 10 at 85 (describing the news
55 238 A post on a wall thus will likely be seen on the news feed that appears on the hom e page of all the friends of both parties. Another tool is the message sender, which is analogous to email. This appears to be the most secure and private method of communicating on Facebook. A message is directly sent to a user or number of users without it being disclosed to all of the friends each user has. People will use the message sender tool when they want to keep a conversation exclusive to a number of people. Again, this is email on Facebook. A message sent via the message sender reaches significa ntly less people than a wall post message because the sender chooses who will get the message. Facebook also has an instant message tool where users can chat with each other while they are logged onto Facebook. This method of communication also provides us ers with a higher degree of privacy than a wall post, and arguably more than a message since it is limited to those people involved in the chat. Chatting on Facebook via the instant message tool is analogous to chatting face to face with a friend offline. A user may hope that the recipient of a message will refrain from sharing it with others, but there is nothing stopping the person but his own sense of civility and morality. Finally, Facebook user may also create group, event, and community pages where th ey invite specific users to like or add the page to their own profile. Users can create a page for any as a link and other friends will be able to see the l ink. If curious enough, friends of the friend that liked or joined a group will click on the link, and maybe end up liking or joining the groups 238 See id. sip
56 themselves, further expanding the exposure that a group, event, or community page gets on Facebook. These are j ust some of the primary communications tools available on Facebook. Yet it should be that any given message on Facebook carries the potential of reaching tens of thousands and maybe even all 800 million users on Facebook. The bottom line is that Faceb ook is what the user makes it to be. A person can use it merely to communicate with a small group of close friends or to publicize information to any interested user. Part II: User Motivations, Behavior and Expectations on Facebook We lived on farms, th en we lived in cities, and now we're going to live on the Internet -Justine Timberlake as Sean Parker, The Social Network 239 In the motion picture, The Social Network, the character of Sean Parker, one of the founders of the music sharing website, Napster gives a simple and pithy description of the evolving nature of civilization. A recent study conducted by the Pew Research Center, shows that more than half of all adults in the United States use social networking sites, like Facebook. 240 The focus on adul ts is important because since the inception of social networking sites, young adults those between eighteen and twenty nine years of age have been the primary users, with older adults traditionally more reluctant to join. According to the Pew Research 29 use social 239 Quote from the movie The Social Network http://www.imdb.com/title/tt1285016/quotes (last visited Nov. 12, 2011). 240 See Mary Madden & Kathryn Zickuhr, P EW I NTERNET & A MERICAN L IFE P R OJECT 65% OF O NLINE A DULTS U SE S OCIAL N ETWORK S ITES (2011), http://www.pewinternet.org/~/media//Files/Reports/2011/PIP SNS Update 2011.pdf.
57 networking sites (83%), compared with seven in ten 30 49 year olds (70%), half of 50 64 year 241 Life is indeed shiftin g onto cyberspace. But what motivates users, how do they use Facebook, and what are their expectations? Research under user gratification theory 242 indicates four primary reasons why people register with Facebook: 243 244 245 246 247 Social searching involves users learning more about people they have met offline. 248 Alternatively, social browsing involves meeting an individual online that a user has not 241 Id. at 5. 242 psychologic al communication perspective how individual [sic] use mass media and other ed by a group of social environment, the mass media, functional alternatives to media use, communication Mark A. Uri sta, Dong Qingwen & Kenneth D. Day, Explaining Why Young Adults Use MySpace and Facebook Through Uses and Gratification Theory 12 H UM C OMM 215, 218 (2009). 243 See Joinson, supra note 9 at 2. See also Pavica Sheldon, Student Favorite: Facebook and Motiv es for its Use, 23 S W M ASS C OMM J. 39, 41 42 (2008); Nicole B. Ellison et al., The Network Sites 12 J. C OMPUTER M EDIATED C OMM 1143, 1164 65 (2007). 244 Joinson, su pra note 9 at 2. 245 Id. 246 Id. 247 Id.
58 previously met offline, but who the user hopes to la ter meet in person. 249 In terms of social 250 that each of those connections provides. 251 Finally, Facebook allows people to stalk, as it were, oth 252 By examining other profiles, users learn about their interests and beliefs and, depending on how acti vity. Stalking is, of course, possible on Facebook because there is no mechanism that allows users to see who is looking at their profiles. Facebook by a desire to en gage in social interactions with others, whether they be old or new acquaintances. As with social interactions in the real world, social interactions on Facebook are influenced by the impression that users make on others. For example, Kent State Universit y Professor Nichole Egbert has found that: social attractiveness, as well his or her credibil ity. Research has also shown that the more Facebook friends a profile owner had, the more socially attractive he or she was perceived to be. Interestingly, further results showed that ratings of a profile umber of friends The 248 Id. 249 Id. 250 Id. 251 See Nicole B. Ellison et al., 12 J. C OMPUTER M EDIATED C OMM 1143, 1146 (2007) (observing th 252 Joinson, supra note 9 at 2.
59 desirable and difficult to attain offline. 253 behaviors to ma 254 The personality or presentations of self that people make on Facebook often contrast with, if only minimally, how other people perceive them in real life. For example, generally shy people might feel more comfortable opening up on Facebook. The same may be said about normally extroverted people. They seem to exert a bigger than life persona on Facebook, with lists of friends reaching the thousands. People develop their Facebook personas by selecting the p ersonally identifiable information they reveal to others. A profile on Facebook allows users to post a wide range of information, stretching from the banal to more interesting content regarding sexual prefe rence, relationship status, hobbies, and other entertainment inclinations (i.e. favorite books, movies, television shows, and music). 255 253 Jenny Rosenberg & Nichole Egbert, Online Impression Management: Per sonality Traits and Concerns for Secondary Goals as Predictors of Self Presentation Tactics on Facebook 17 J. C OMPUTER M EDIATED C OMM 1, 2 (2011). 254 Id. at 3. 255 In their research, Ralph Goss and Alessandro Acquisti found that: 90.8% of [Facebook} profile s contain an image, 87.8% of users reveal their birth date, 39.9% list a phone number (including 28.8% of profiles that contain a cellphone number), and 50.8% list their current residence. The majority of users also disclose their dating preferences (male or female), current relationship status percentage of users (62.9%) that list a relat ionship status other than single even identify their partner by name and/or link to their Facebook profile. Ralph Goss & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks A SS N FOR C OMPUTING M ACH ., W ORKSHOP ON P RIVACY IN TH E E LEC S OC Y (2005).
60 The content that a person posts becomes a reflection of his or her Facebook persona. Many other online services, such as news and music websites, link directly to Facebook and allow consumers, in turn, to link what they have read or heard on those websites onto their Facebook profile. These selections are publicized on Facebook and become a manifestation of a nality. In her article, The Philosophy of Facebook and the Construction of Identity 256 involved in the performance of gender and social identity, a performance [she] can also part icipate in as [she] carves out an online identity based on how, and as whom, [she] want[s] to 257 The result of impression management on Facebook is that users expect some degree of control over their online identity. 258 Part III: Privacy Expectations on Facebook Privacy issues have plagued Facebook since it was introduced to college students around the nation in 2004. Early on school officials and administrators expressed concern over their students using Face book. 259 They were alarmed by the amount and type of information that students were willingly posting on the site, and were skeptical that students fully understood the 256 Katie Ellis, Philosophy of Facebook and the Construction of Identity 58 S CREEN E DUC 36 (2010). 257 Id. at 39. 258 See Debatin, supra note 10 understanding of privacy issu es, they tend to be satisfied with the mere idea of control through 259 See Carrie Hargett, Online communities such as Facebook grow quickly but raise privacy issues, C HATTANOOGA T IMES F REE P RESS Jan. 1, 2006, at E1. See also Nancy Hass, In your Facebook.com, N.Y. T IMES Jan. 8, 2006, § 4A, at 30 ; Erik Brady & Daniel Libit, Alarms sound over Facebook time; Students see website as a friendly community; schools fear postings make athletes vulnerable, USA T ODAY Internet revises hazing issue; Posting of pictures for all to see also concerns officials, USA T ODAY May 19, 2006, at 9C.
62 July 2010, a University of Michigan consumer satisfaction study reveals that a majority of 269 October 2010, another Wall Street Journal investigation discovers that many applications on Facebook are disclosing data to advertisers and linking that data directly to user profiles. 270 January 2011, Facebook expands the type of information that users can share with other websites and application s to include their address and phone numbers. 271 However, because of so much negative feedback Facebook pulls back on its decision. 272 That same Facebook profiles are hacked and used to spread false information. 273 November 2011, Facebook settles with the FTC over allegations that its privacy policies 274 problems. 275 For there have been problems with unencrypted passwords, 276 and third parties have been able to use 277 It is clear that there are multiple privacy problems besetting Facebook. In fact, Professor Bernhard Debatin of the E. W. 269 See id. 270 See id. See also Chris Soghoian, Exclusive: The next Facebook privacy scandal, C NET Jan. 23, 2008, http://news.cnet.com/8301 13739_3 9854409 46.html. 271 See Hiar, supra note 20 272 See id. 273 See id. 274 Id. 275 See generally Debatin, supra note 10 (addressing other privacy dilemmas associated with Facebook use) 276 See id. at 84. 277 Id. at 86. See also Brian Krebs, Hackers Exploiting Facebook, MySpace Plug ins, W ASH P OST Feb. 23, 2008, http://blog.washingtonpost.com/securityfix/2008/02/hacker s_exploiting_facebook_my.html?nav =rss_blog.
63 Scripps School of Journalism at Ohio University and colleagues, in their article, Facebook and Online Privacy: A ttitudes, Behaviors, and Unintended Consequences 278 citied a 2007 survey conducted by the privacy watchdog group, Privacy International, which found that Facebook had d 279 The privacy and security risks on Facebook are palpable, but how aware are users of these dangers? There is not a single answer to this question. The answer or answers will vary depending on the age of users, their pers onal experiences, their cultural backgrounds, and other factors. 280 But most research suggests that users are not fully aware of the panoply of privacy risks they will face on Facebook. 281 Professor Debatin analogized user awareness of privacy risks to an iceb erg. 282 The part of the iceberg that is visible belies the true size of the whole iceberg. 278 See Debatin, supra note 10 279 Id. at 84. 280 See Susan Waters & James Ackerman, Exploring Privacy Management on Facebook: Motivations and Perceived Consequences of Voluntary Disclosure 17 J. C OMPUTER M EDIATED C OMM 101, 103 281 See Elizabeth Butler, Elizabeth McCann, & Joseph Thomas, Privacy Setting Awarenes s on Facebook and Its Effect on User Posted Content 14 H UM C OMM 39, 44 (2011) (observing that, page now has 50 different settings, with 170 different opti See also Catherine Rampell, W ASH P OST Feb. 23, 2008, http://www.washingtonpost.com/wp dyn/content/article/2008/02/22/AR2008022202630.html. 282 See Debatin, s upra note 10 based invasion of privacy and aggregation of data, as well as its potential commercial cebook, innocent looking user profiles and social interactions, must be neatly separated from the invisible is constantly fed by the data that trickle down from the interactions and self
64 Similarly, users are aware of the small part of the privacy know how big the privacy risk iceberg really is. Several factors cont ribute to this lack of privacy awareness among users. One is that most users do not understand the technology behind the Facebook platform and therefore they do not see how information moves through and out of Facebook. 283 A second factor is that users do no t take a few hours perusing it. 284 Another factor is that many users trust Facebook, and these feelings of trust are magnified the longer a user goes without experiencing any personal violation of privacy. 285 believe that others are more susceptible to privacy invasions, and that they themselves take better care to protect their information and privacy than other users. This is the central premise of the third person effect theory, which according to Professor Debatin and colleagues, focuses on the 283 See Catherine Rampell, W ASH P OST Feb. 23, 2008, http://www.washingtonpost.com/wp dyn/content/article/2008/02/22/AR2008022202630.html done wit 284 See Butler, supra note 80 See also JR Raphael, Facebook Privacy: Secrets Unveiled PC W ORLD May 16, 2010, http://www.pcworld.com/article/196410/facebook_privacy_secrets_unveiled.html. 285 See Butler, supra note 80 subconscious cues that make users think they are interacting within bounded, close d, private See also Lewis, supra note 31 public space with private details, and the consequence is a crashed party, a lost job opportunity, or at an extreme sexual assault or identity th
65 286 The result of Professor 287 and specifically reported that those users 288 therefore, most have very larg 289 especially those from a younger g eneration, may not value privacy as much as older generations do. 290 This is especially true for those users who have grown up with Facebook. After all, the primary function of the site is to facilitate information sharing between users and, according to 286 Debatin, supra note 10 at 89. 287 Id. at 94. 288 Id. at 100. 289 Id. 290 In a study conducted by the Pew Research Center on the generation known as the Millenials that group of people born after 1980 the resear chers found that they: embrace multiple modes of self expression. Three quarters have created a profile on a social networking site. One in five have posted a video of themselves online. Nearly four in one have a tattoo [n]early one in four have a pi ercing in some place other than an earlobe this. But their look at me tendencies are not without limits. Most Millenials have placed privacy boundaries on their social media profiles. And 70% say their tattoos are hidden beneath clothing See P EW I NTERNET & A MERICAN L IFE P ROJECT M ILLENIALS : C ONFIDENT C ONNECTED O PEN TO C HANGE ., (2011) http://pewsoci altrends.org/files/2010/10/millennials confident connected open to change.pdf
66 Uni want to be 291 What many of these younger generational users value are the benefits they obtain by disclosing or sharing information on Facebook. 292 These benefits include improvemen ts in both relationship management and psychological well being, as well and keeping up with entertainment and trends. 293 benefits of online social networking outweigh [the] risks of disclosi 294 Most studies on Facebook and privacy have used college age students for subjects and thus little evidence exists regarding how adults, let alone the elderly, perceive risks and manage their privacy on Facebook. Arguably, however most engage in some kind of cost benefit analysis. 295 Under the tenets of communication privacy management theory (CPM), people 296 297 as a method of negotiating to whom they will reveal pri vate information. 298 There are five principles that underlie the CPM theory: 299 291 Zeynep Tufekci, Can You See Me Now? Audience and Disclosure Regulation in Online Social Network Sites 28 B ULL S CI T ECH S OC 20, 20 (2008). 292 See Waters, supra note 79 a t 111. 293 Id. 294 Debatin, supra note 10 at 100. 295 See generally Waters, supra note 79 (applying communication privacy management theory to discuss how users negotiate disclosures and manage their privacy on Facebook). 296 Waters, supra note 79 at 103. 297 Id. 298 Id. at 104. 299 Id.
67 300 301 302 303 According to Auburn University Professor Su san Waters, the private information principle 304 principle works well with Facebook usance, since one of the first lessons learned is not to be intimate when posting 305 The 306 The third and most compelling prin ciple as far as this thesis is concerned is control and ownership. According to Professor controlling this information is a right managed by revealing and conc ealing private 307 or she makes. The right of control lets individuals manage the flow of personal information between the private and public spheres, and allows the m to dictate how the public at large will perceive them. 300 Id. 301 Id. 302 Id. 303 Id. 304 Id. 305 Id. 306 Id. 307 Id. (emphasis added).
68 The rule 308 Finally, the privacy management dialectics privacy/concealing and public/revealing. [This] tension is evidence in how a person decides what 309 The quintet of principles undergirding CPM theory is governed by several factors, motivation for managing privacy on Facebook (for example, has the user had any personal experiences with privacy invasions on Facebook? Ho w much does a person value privacy?). In addition, other factors include how a user applies his or her privacy settings and weighs or balances the risk and benefits of privacy and disclosure. 310 Presumably, how adults value and weigh privacy risks and discl osure benefits will vary from how younger users make those value based calculations. For example, forty and fifty somethings will probably value their privacy more than younger users because of the differing life experiences. 311 The scarcity of research on the privacy management and expectations of adults on Facebook is understandable since Facebook has traditionally been a communication tool directed at the younger generations, but a recent study by the Pew Research Center shows 308 Id. 309 Id. 310 Id. 311 See Lewis W. Diuguid, Gadgets keep us from real people S T P ETERSBURG T IMES ( Fla.) Dec. kids who grew up with
69 that an increasing amount of adults are on Facebook. 312 The demographics on Facebook resemble more and more the demographics of real life, and as in real life making generalizations multitudi of an inanimate object or set of bytes; it is about the sense of vulnerability that an individual 313 as the right to own 314 Part IV: Disclosure as a Privacy Risk The disclosure of highly personal and embarrassing information on Facebook is different in nature from the privacy risks described above. Public disclosure, unlike the other t hreats, has disclosure of private facts concerns actions by one user against another. 315 Facebook merely serves as the medium or vehicle through which disclosures are made. Referring back to Professor 316 the risk that one user will disclose embarrassing, private facts about another person on Facebook represents the visible part of the iceberg. It is a very evident and real threat facing lif e on the social network. 312 See Madden & Zickuhr, supra note 39 internet users ages 18 29 use socia l networking sites (83%), compared with seven in ten 20 49 year olds (70%), half of 50 64 year 313 Danah Boyd, 14 C ONVERGENC E : I NT L J. R ES N EW M EDIA T ECH 13, 14 (2008). 314 Waters, supra note 79 at 104. 315 See R ESTATEMENT (S ECOND ) OF T ORTS § 625D (1977). 316 See Debatin, supra note 10
70 Whether offline and online, people make decisions and take precautions to safeguard their image and reputation against malicious attacks by others. After all, that is why society historically sanctioned defamation suits and, more r ecently, began to acknowledge invasion of privacy claims. 317 Before Facebook, however, these fears generally were allayed by the fact that the power of widespread publicity was vested largely in the hands of large media entities like newspapers and televisi on stations. As long as an individual was not a person of interest within the community (i.e., a public official or figure), he or she did not need to worry about attracting to the collective. 318 Users cannot necessarily rely on their obscurity because on Facebook anyone can become a person of interest. Instead users must rely on hope for, really -the civility of others. This affects the decisional process that users engage in when weighing and balancing the costs and benefits of making online disclosures. For example, users may consider the impact of a disclosure before making it much like in the real world. If an individual believes his disclosure may generate a retaliator y reaction, whether towards him or others, then he may choose to allows information to travel much faster and to larger networks of both loosely and tightly 317 The law of defamation goes back as far as the Norman conquest, and invasion of privacy as a cause of action has its roots in the 19th century, attaining full legal recognition in the middle of the 20 th century. See supra Part I. See also H ARV L. R EV A SS N Development in the Law: Defamation 69 H ARV L. R EV 875, 877 n.1 (1956). 318 See Francis co Javier Prez Latre et al., Social Networks, Media and Audiences: A Literature Review 24 C OMUNICACI"N Y S OCIEDAD 63, 65 (2011) (referencing Don Tapscott and Anthony Wikinomics: How Mass Collaboration Changes Everything and explaining tha t ] increasingly under
71 connect ed people. 319 One seeming contradictory result is that although users face greater uncertainties online, they nonetheless are more willing to take risks with their disclosures. 320 Authors Ryan Lange and Cliff Lampe explain this deviation as the consequence of 321 322 The problem, of course, 323 fails to guarantee users that a third party will not disclose embarrassing, private facts about them on Facebook. This may cause individuals to mitigate the possibility of third party disclosures by controlling at the outset what information they share and to what parties that information is shared with. Generally, people disclose the most intimate and private details of their lives to those closest to them. But the threat 319 See Lior J. Strahilevitz, A Social Networks Theory of Privacy 72 U. C HI L. R EV 919, 921 (2005) (arguing that society should consider the effect of message dissemination through social networks when defining what are and are not reasonable expectations of privacy). Professor Strahilevitz writes that: [T]he increased prevalence of email, blogging, and other new forms of communications in recent decades has facilitated the more rapid dissemination of new information and crea ted new categories of potential supernodes. Thus, particularly embarrassing emails or memoranda have on occasion made their way around the world, even though few of the eventual recipients were familiar with the original parties to the communications Id. at 968. 320 See Joshua Fogel & Elham Nehmad, Internet Social Network Communities: Risk Taking, Trust, and Privacy Concerns, 29 C OMPUTERS IN H UM B EHAV 153, 159 (2009) (finding that k taking attitudes than 321 Ryan Lange & Cliff Lampe, Feeding the Privacy Debate: An Examination of Facebook I NT L C OMM A SS N C ONF 1, 6 (2008). 322 Id. 323 Id.
72 of an embarrassing disclosure on Facebook may affect users the site but also offline. Fear of disclosure on Facebook may inhibit people from sharing information they normally would share in face to face interactions. 324 book not only affects that world public persona. 325 Furthermore, a person the site. Both users and non users face t he same threats to their rights of control and ownership 324 Professor Daniel J. Solove explains that, [t]he risk of disclosure can inhibit practices that may engender social reprobation. unless that activity is socially detrimental. Without protection against disclosure, the person mi ght not engage in that activity. Fear of disclosure also inhibits people from exploring their preferences. Privacy permits individuals to contemplate and discuss political change, create counterculture, or engage in meaningful critique of society. Privacy also enables creative expression that is often not possible within the constraints of public life. People have the opportunity to develop their views, political opinions, and artistic expressions without having such information prematurely leaked to the wo rld, where harsh judgments and public opprobrium might crush them. Growth and development require experimentation and the people to speak anonymously, encouraging robust communic ation without fear of community reprisal All of these activities are central to autonomy and self determination. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure 53 D UKE L.J. 967, 991 92 (2003). 325 For example Ryan Lange and Cliff Lampe explain that many people use social networking Supra note 120 erberate both in the off and online worlds.
73 of their information, 326 and their ability to develop, maintain and manage both their online and offline personas is undermined by highly offensive and embarrassing third party disclosures. 327 Finally, t he harm a person experiences from public disclosures of his or her intimate facts goes beyond just that of immediate embarrassment and loss of standing within the community. For instance, Facebook disclosures can affect job and educational prospects. Emp loyers and names on Facebook and Google. 328 The ramification is that information an employer once never would have inquired about because of a discriminatory o r improper question can now be ferreted already of employers firing employees because of unflattering or compromising information posted or associated with the empl 329 Social media like Facebook have changed the communications landscape. They have been touted as democratizing mediums, sparking revolutions around the world and transferring power to the people. 330 This is the character of the 21 st century, b ut the public disclosure of the 326 See Waters, supra note 79 at 104 (writing that the right of control and ownership over personal information is a key principle in communication privacy management). 327 See Andrew Smock, Self Presentation on Fac ebook: Managing Content Created by the User and Others, I NT C OMM A SS N C ONF 1, 3 (2010) (explaining that on Facebook parties to contribute content that can be damaging or contradicting to the self pre 328 See Carly Brandenburg, Nightmare 60 F ED C OMM L.J. 597 (2008). See also Phyllis Korkki, Is Your Online Identity Spoiling Your Chances? N.Y. T IMES Oct 10, 2010, § BU, at 8. 329 See Wally Northway, Facebook Firing M ISS B US J., Nov. 4, 2011, Comment. 330 See Jennifer Preston, While Facebook Plays a Star Role in the Revolts, Its Executives Stay Offstage N.Y. T IMES Feb. 15, 2011, § A, at 10.
74 private facts tort remains stuck in the 20 th century. The next chapter analyzes this disconnect between the 20 th century public disclosure tort and the very hip social media like Facebook.
75 CHAPTER 4 MODIFYING THE NEWSWO RTH INESS PRIVILEGE TO F IT DISCLOSURES ON FACEBOOK Is there news on Facebook? More specifically, do private individuals generate and and previously private information about others on this ever pop ular social media network? Parsed still differently, is never claim or even pretend to be journalists, post such information? This trio of questions is critical today because the newsworthiness element that courts incorporated into the public disclosure tort was designed to protect both the press from fathers of the rig ht to privacy, Samuel Warren and Louis Brandeis, understood that if the law was limits restricting the scope of that right. 331 But the visionaries were concerned wi th the nosy and gossip mongering press and not with the average individual. As a result they conceived a limit that focused on the nature of the matter disclosed to determine whether or not it concerned an issue of legitimate public concern. 332 To Warren and Brandeis, gossip and rumor did not constitute matters of legitimate public concern. 333 Fortunately, or unfortunately to some, the 331 See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy 4 H ARV L. R EV 193, 214 332 See id. at 214 15. 333 See Warren & Brandeis, supra note 1
76 courts have not limited their definition of matters that are public or of general interest to exclude gossip and rumors. 334 Cour ts have developed a concept of newsworthiness that cannot be divorced from First Amendment notions of a free, autonomous press. 335 This is because: 1) the power of widespread publicity historically belonged exclusively to the press and mass media outlets; an d 2) courts are unwilling to supplant, via judicial blue penciling and second judgment with their own. 336 Until approximately the last two decades, most key public disclosure cases involved a newsworthiness equation with one f ixed, key component: a news media defendant. 337 The problem now is that websites such as Facebook have added another potential defendant to the newsworthiness equation in the public disclosure tort: us, everyone and anyone. The power of publicity is no longe r in the hands of the professional journalists, but instead is 334 See Amy Gajda, Judging Journalism: Th e Turn Toward Privacy and Judicial Regulation of the Press 97 C ALIF L. R EV 1039, 1061 (2009). 335 The American legal system has adopted an expansive view of press freedoms and courts have implemented the newsworthy privilege as a safeguard of those freedo ms against intervening forces. Newsworthiness is to public disclosure of private fact torts as is New York Times actual its civic duty as provider of informa tion to the public at large. See Sullivan, infra note 13 336 See infra note 75 337 See Time, Inc. v. Hill, 385 U.S. 374 (1967); Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975); Florida Star v. B.J.F., 491 U.S. 524 (1989); Sidis v. F 06 (2d Cir. 1940); Virgil v. Time, Inc., 527 F.2d 1122 (9 th Cir. 1975); Gilbert v. Med. Econ. Co., 665 F.2d 305 (10 th Cir. 1981); Howard v. Des Moines Register & Tribune Co., 870 F.2d 271 (5 th Cir. th Ci r. 1989); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7 th Cir. 1993); Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942); Shulman v. Group W Prod., Inc., 955 P.2d 469 (Cal. 1998); Neff v. Time, Inc., 406 F.Supp. 858 (W.D. Pa. 1976); Diaz v. Oakland Tribune, 188 Cal. Rptr. 762 (Cal. Ct. App. 1983); and Sipple
77 dispersed among the population at large. 338 This raises an important question: will the law treat the press differently than everyone else who is not a journalist? There are several reasons for a nswering yes. The first involves structures Traditionally, before the press publishes a story, it subjects the piece through an editorial process that involves fact checking, copy editing and even pre publication review by an attorney. On Facebook, howev the term itself suggests a coherent journalistic narrative rather than just a spewing of random facts on a Facebook page does not necessarily undergo the same editorial review. Visually, the difference between the traditional press and Fa cebook can be diagramed as follows: Traditional Publication: Journalist Editor Public F igure 4 1 Traditional Publication Model Facebook Publication: User Public Figure 4 2 Facebook Publication Model 338 See L AWRENCE L ESSIG C ODE V ERSION 2.0 2 See also P EW R ESEARCH C ENTER S P ROJECT FOR E XCELLENCE IN J OURNALISM T HE S TATE OF THE N EWS M EDIA 3 20 th century, the news media thrived by being the intermediary others needed to reach customers. In the 21 st increasingly there is a new intermediary: Software programmers, content aggregators and device makers control acce http://stateofthemedia.org/files/2011/07/sotm_final_2011.pdf.
78 The glaring distinction between the two forms of publication procedures is that on Facebook there is no intermediary reviewing facts and evaluating their newsworthiness before publication. Facebook allows users simply to click and go; the only thing holding a writer back from making dis The second reason for applying different standards to speech on Facebook involves purpose The purpose of the newsworthiness standard was to protect the press against civil liability. A fter New York Times Co. v. Sullivan 339 the Supreme Court for a span of many years took a very progressive approach to constitutional issues surrounding press freedoms. 340 This tack was anchored on a glorified vision of the role of a free press in our society, and on the relationship between such a press and the public. 341 There is no such relationship on Facebook. representative no longer is part of the public disclosure equation? Th is chapter highlights the problems with traditional newsworthiness standards and disclosures on Facebook, and it answers the above question in the affirmative. Part I considers the question whether the theoretical underpinnings of the newsworthy privilege exist with speech on Facebook. Part II then evaluates 339 376 U.S. 254 (1964). 340 Columbia University president and First Amendment scholar Lee C. Bollinger explains that: [t]hus with Sullivan the Court set forth on a course one i t has followed for nearly three decades and will certainly continue to follow in the foreseeable future of articulating an image of the press and its relation to the government and the public. Within this working image, the press is conceived as play ing a noble, even heroic, social and political role. The press thus stands as the guardian and agent of the political rights of the people, and it determines the quality of public debate. Sometimes, as occurred in New York Times v. Sullivan th e Court has provided extreme protection for the press, giving it the freedom to do very harmful things. L EE C. B OLLINGER I MAGES OF A F REE P RESS 44 ( Univ. of Chi. Press ed., 1991) (1991). 341 See infra note 21
79 Facebook, and how those distinctions warrant a modernized, user centric approach to the newsworthy privi lege. Promises of a Free Press are Kept The initial problem with applying the newsworthiness privilege on Facebook is that the prevailing newsworthiness standards were tailo red for media defendants. 342 The history national commitment to the principle that debate on public issues should be uninhibited, robust, and wide 343 Newswort 344 it needs to fully exercise its First Amendment rights and in turn provide the kind of information th 345 A line of federal, state and Supreme Court cases that address the newsworthiness privilege reveal that the primary concern for judges and justices alike was the relationship 342 See generally supra Part I. 343 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964). 344 Sullivan 376 U.S. at 272. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 499 n.3 (1975) standard of care with r espect to the truth of the published facts that will afford the required See also Virgil v. Time, Inc., 527 F.2d. 1122, 1129 (9 th does not offend the First Amendment; by the extreme limits it imposes in defining the tort it avoids unduly limiting the breathing space needed by the press fore exercise of effective editorial 345 Thornhill v. Alabama, 310 U.S. 88, 102 (1940).
80 between the press and the public. 346 In the early, Sidis v. F R Publis hing Corp. 347 mentioned previously in the literature review population. [W]hen such are the mores of the community, it would be unwise for a court to 348 In Time, Inc. v. Hill 349 Justice William J. Brennan, delivering the opinion of the Court, noted that the First Amendment gu the press so much as for the benefit of all of us. A broadly defined freedom of the press assures 350 He furthered adds that: [t]he 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 whic h exposes persons to public view, both private citizens and in this nation, must embrace all issues about which information is needed or appropriate to enable the mem bers of society to cope with the exigencies of their 351 The issue in this case is akin to a false light claim and whether or not the privilege of newsworthiness protected Time from liability. Nonetheless, the Court, in support of its 346 See Sidis v. F 420 U.S. 469 (1975); Virgil v. Time, Inc., 527 F.2d 1122 (9 th Cir. 1975); Florida Star v. B.J.F., 491 U.S. 525 (1989); Shulman v. Group W Prod., 18 Cal.4 th 200 (Cal. 1998). 347 113 F.2d 806 (4 th Cir. 1940). 348 Id. at 809. 349 385 U.S. 374 (1967). 350 Id. at 389. 351 Id. at 388 (quoting Thornhill v. Alabama, 310 U.S. 88, 102 (1940) ).
81 conclusion that the plaintiff had to demonstrate knowing or reckless falsity in the publication at issue, harped on the importance of the relationship between the media and the public. In Cox Broadcasting Corp. v. Cohn 352 the seminal public disclosure case to reach the Supreme Court Justice Byron R. White, writing for the Court, echoed the importance of a free press in a democratic society. He wrote: [I]n a society in which each individual has but limited time and resources with which to observe at first hand the operat ions of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government. 353 Eight years later in Diaz v. Oakland Tribune, Inc. 354 a California appellate court cited the high Cox Broadcasting tort liability is necessary if the press is to carry out its constitutional obligation to keep the public informed so that they may make intelligent decisions on matters important to a self governing 355 Multiple cases exemplify the importance of the newsworthiness privilege to the relationship between the public and the press, but the predominant sentiment is that the news media and the public exist in a symbiotic relationship. One needs the other for information and the other cannot exist without the support of the one. In order for this relationship to flourish, it needs room to grow and breath. Thus, the American legal system in accord with First 352 420 U.S. 469 (1975). 353 Id. at 491 92. 354 139 Cal.App.3d 118 (Cal. Ct. App. 1983). 355 Id. at 126.
82 Amendment values, adopted the seminal justification for expanding press freedoms: the New York Times v. Sullivan 356 The privilege of newsworthiness that the press is immune from liability whe n reporting on matters of public concern enhances and ensures that the press has its breathing room. Although Facebook involves a medium of communication, the symbiotic relationship between the media and the public is not the same relationship the court s have adamantly protected in previous public disclosure cases. The relationship that exists on Facebook is a mutated version of the traditional partnership between the press and the public. The reason for this mutation is anchored on the structural and pr actical differences between the traditional press (considered today be the so called legacy press of print, television, and radio) and Facebook and the Internet generally. The next section highlights these differences and evaluates the impact they have on courts to modify their First Amendment approaches to online communications. opinions about others news? Although some people may want to ignore obvious differences between the press and the rest of the citizenry when it comes to legal privileges and treatment, 357 this thesis argues that Facebook 356 Sullivan, supra note 13 357 For example, the Supreme Court in Branzburg v. Hayes refused to grant reporters a privilege from testifying and disclosing sour ces in a grand jury proceeding when the rest of the citizenry would be bound by their civic duty to do so. Justice Byron White wrote: [t]he sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to a nswer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor any other constitutional provision protects the average citizen fro m disclosing to a grand jury information that he has received in confidence. The claim is, however, that
83 enhances these distinctions to such a degree that the public disclosure and newsworthiness debate must be restructured. The primary distinction is that typically there are gatekeepers overseeing the traditional media, 358 and the latter is subject to the whims of its users. The second variable between the press and Facebook is that typically the news industry is composed of reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their i nformants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on new gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them. 408 U.S. Id. at 685. In response to the opinion in Branzburg many states have enacted shield laws to protect journalists against compelled disclosures, but recently at least one court has found that certain blogs cannot invoke shield laws. See Chris Healy, Ill. judge rules that tech blog n ot covered by shield law for Freedom of the Press (Jan. 19, 2012), http://www.rcfp.org/browse media law resources/news/i ll judge rules tech blog not covered shield law (last visited Jan. 20. 2012). Nonetheless, the debate over who is a journalist continues. Many from the traditional, institutional press argue that the definition of a journalist should not include dilettant es and others who have taken up expressing their views and opinions on the Internet. See Gregg Leslie, N EWS M EDIA & T HE L AW (Fall 2009). 358 In the article, Gatekeeping International News: An Attitudinal Profile of U.S. Television Jou rnalists Hun Shik Kim, the author, briefly explains the gatekeeping procedures that takes place in a traditional newsroom. Kim writes: [a]lthough television news is the product of multi layered decisions, journalists and their news organizations are respo nsible for the final news product. Despite the public service rhetoric, television news organizations are business environments composed of hierarchical systems within which news managers and journalists function (Tuggle & Huffman, 2000). Journalists selec t certain news stories while rejecting others based on many different levels of considerations personal judgment, newsroom routines, restraints laid out by their news organizations, and socio cultural influences. In this context, journalists are gatekeeper s who cover and select news that flows along the communication channel, shaping what is finally presented as news to the audience. Often, news selection is made by senior editors and senior news producers, and sometimes by executives of news organiza tions. 46 J. B ROAD & E LEC M EDIA 431, 431 32 (2002).
84 writers who have either an educational background or an on the job training in journalism. 359 Finally, journalists around the nation often are trained or inculcated with certai n ethical standards that influence their decisional processes when writing and publishing a story. 360 All of these The primary distinction between the traditi onal media and Facebook is the presence or absence of an editor, or in more theoretical terms, a gatekeeper. 361 Most if not all of the articles, stories and opinions released by the mainstream press are reviewed, vetted and revised by at least one editor to ensure that both grammar and substance are appropriate for publication. Editors also evaluate the newsworthiness of a story to verify that the piece is marketable (i.e., will the public be interested in the piece?) and the prominence with which it is conve yed (i.e., will it go on page A1 or page B14?). 362 The editor, or editorial board, decides what information reaches the masses, how it will be presented, and more importantly what will be the news of the day. 363 The 359 See D AVID H UGH ET AL ., T HE A MERICAN JOURNALIST I N THE 21 ST CENTURY : U.S. NEWS PEOPLE AT THE DAWN O F A NEW MILLENIUM 31 ( Lawrence Erlbaum Associates, Inc. 2007) (2009) (writing that in 2002 73% of fu ll time journalists, including those that work in television, radio, telecommunications and other communication areas had college degrees and had taken courses in journalism). 360 See generally Jay Black, 80 Q UILL 31 (1992) (writing about the different standards of ethics that newsrooms around the country and across writing and ethical decisionmaking going on in newsroo ms these days does seem to indicate a 361 See D ENIS M C Q UAIL M C Q UAIL S M ASS C OMMUNICATION T HEORY 139 (5 th ed. 2005) (writing rtunities and challenges for traditional publishing. The traditional publication functions of gatekeeping editorial intervention and validation of authorship will be found in some types of Internet 362 See Kim, supra note 2 8. 363 Law professor at the University of Iowa Randall P. Bezanson characterizes editorial judgment d by the ethic of disseminating
85 Supreme Court has developed a First Amendmen t doctrine of press freedoms that pivots on the presence of an editorial process, which has come to be known as the editorial judgment doctrine. 364 However, the Court has granted more leeway to the editorial judgment of the print press than to that of the br oadcasting media. The key Supreme Court case protecting editorial judgment is Miami Herald Publishing Company v. Tornillo 365 In Tornillo the Court invalidated a Florida law that required newspapers to grant political candidates a right of reply to critiq ues and personal attacks made against that candidate in newspapers. 366 observed that: A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice o f material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials whether fair or unfair constitute the exercise of editorial control and judgment. It has y et to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. 367 f the law were valid, but 368 it was deemed to be material deemed important for a public readership and selected by a process of reason and audience The Developing Law of Editorial Judgment 78 N EB L. R EV 754, 755 (1999). 364 See generally id. (commenting on the editorial judgment doctrine and its role in developing press freedoms). 365 418 U.S. 241 (1974). 366 See id. at 254. 367 Id. at 258. 368 See id. at 254.
86 unconstitutional. Chief Justice Burger interpreted the First Amendment to provide citizens with a fundamental protection against government comp elled speech. 369 In stark contrast to the decision in Tornillo the Supreme Court in Red Lion Broadcasting Co. v. FCC 370 of reply (an aspect of the Fairness Doctrine) rule was constitutional. The Court justified its decision by fo cusing on of the nature of the medium the i.e., broadcasting. Like Tornillo the facts in Red Lion involved a right of reply rule mandating broadcasters to grant political candidates airtime to respond to criticism and attacks. 371 Broadc asting, the Court argued, involved a limited spectrum and therefore the government needed to intervene to dictate who would have access to the airwaves. The argument that the First Amendment protected the editorial judgment of broadcasters failed in light of the [b]ecause of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this un ique medium It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. 372 In Red Lion the Court focused on the rights of the audience more than the rights of the speakers, much unlike its later decision in Tor nillo But it justified its position because it believed that the differences between the broadcast medium and print warranted separate rules and rationales. Notably, both Tornillo and Red Lion involved rules compelling speech, not public disclosure cases and certainly not the newsworthiness question. But the cases are important to this thesis because Tornillo brings the doctrine of editorial judgment to the forefront of the press 369 See id. 370 394 U.S. 367 (1969). 371 See id. at 36 9 71. 372 Id. at 390.
87 freedom analysis, while Red Lion demonstrates that the Court is willing to vary that analysis from one medium to the next. The doctrine of editorial judgment is fundamental, according to 373 press is, therefore, the most important quality i s editorial judgment, and the most important 374 judgment is its ability to surmise what information will aid and/or interest the public, and the upshot is that the cour ts are reluctant to impose their judgment on that of editors. 375 purposes, there are o ther reasons why judges are willing to vest some level of trust and deference to the media and their editorial judgment. These include: the news and media industry is subject to market forces, 376 the industry demands professionally trained and educated journ alists, 377 and 373 Bezanson, supra note 3 3, at 760. 374 Id. 375 Professor Gajda observes that between the 1970s and 1980s Supreme Court justices began to specific Time, Inc. v. Pape, 401 U.S. 279, 286 event of news value can contain an almost infinite variety of shadings, an d then she cites Justice Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 63 (1971), where he guessing of the s upra note 4 at 1058. 376 See McManus, infra note 50 377 In a note of advice to future students interested in a career in journalism, Bill Kovach, Senior Counselor of the Project for Excellence in Journalism, writes: [a] curious mind and a broad liberal arts education are by far the best qualifications for a career in journalism. The best foundation begins with an undergraduate liberal arts education that exposes you to a wide range of disciplines of study and helps you supplement your native curiosity with a habit of critical thinking. Whatever course of study you follow, be sure to include a strong foundation in ethics. Then
88 the journalistic profession is guided in part by ethical standards. 378 Although a growing number of news agencies and other big names in the media industry have their own Facebook pages, most posts on them pages are promotional in nature or see k reader response to hot item news pieces. 379 Inversely proportional to the cost of discovering the event has occurred; Inversely proportional to the cost of reporting it; a nd Directly proportional to the expected appeal of the story to audiences advertisers will pay to reach. 380 It goes without saying, but media companies, like any other business organization, need money to survive. Traditionally, the necessary income came fro m advertisers and sales. So at the outset, editorial decisions are constrained by market forces. Beyond reviewing grammar, sources, and consider study at a university that offers a graduate degree in journalism. You can by working on a college newspaper or radio station; a television station that features a college report; or working as a college correspondent for a local, regional or national news organization. And, throughout all this, read. Read everything you c an, including classics in fiction that can help you begin to understand human nature and the human condition. Develop a habit of critically following the work of other journalists and find models for you own work. P EW R ESEARCH C ENTER S P ROJECT FOR E XCELLEN CE IN J OURNALISM http://www.journalism.org/resources/advice_to_students (last visited Jan. 21, 2012). 378 See Black, supra note 3 0. 379 A search on Facebook for individual news agencies and networks reveals that The New York Times page has 1,959,080 followers, the Wall Street Journal page has 422,265 followers, USA Today page has 88,508 followers, the Los Angeles Times page has 178,381 followers, The Miami Herald page has 27,101 followers, 60 Minutes page has 355,514 followers, the CNN page has 3,223,463 followers, the Fox News page has 2,396,589 followers, and the MSNBC page has 431, 319 followers, http://www.facebook.com/inde x.php?lh=Ac8fGhpiVU1C0VQ6 (last visited Jan. 22, 2012). 380 John McManus, Serving the Public and Serving the Market: A Conflict of Interest? 7 J. M ASS M EDIA E THICS 196, 200 01 (1992).
89 the substance of a piece, editors thus must decide the potential value a story will have if published. News and informat ion disseminated by the media are commodities, and like other commodities in the market, networks and newspapers rely on their brand and the goodwill and trust the public feels towards that brand. Editors who are aware of their target audience will produce a product that will satisfy the preferences and needs of that audience. opinions dealing with defamation Online. 381 In Obsidian Finance Group, LLC v. Cox 382 plaintiff Obsidi an sued Crystal Cox for defamation after she posted several critical statements about the company and its employees on her blog. 383 The court found that statements on blogs were 384 and therefore found that the First 385 In Sandals Resorts International Limited v. Google, Inc. 386 the Sandals Corporation sought a court order to compel Google to disclose certain information and m aterials regarding the identity of one of its e mail account holders who, according to Sandals Corporation, sent out mass, anonymous e mails criticizing Sandals for allegedly mistreating and discriminating against 381 See Obsidian Fin. Group, LLC, v. Cox, 812 F.Supp.2d 1220 (D. Or. 2011); and Sandals 382 Obsidian Fin. Group, LLC, v. Cox, 2011 WL 3734457 (Westlaw) (U.S. Dist. Ct. Oregon 2011). 383 See id. at 1. 384 Id. at 3. 385 Id. at 14. The fact that the statements were on a blog was one of several factors that lead the at the languages used by Cox in his statements to see if they constituted rhetorical hyperbole or figurative language. 386 Sand
90 their native Jamaican workforce. 387 The cour t in Sandals distinguished online communications that of print media such a [sic] newspapers and magazines, has been characterized as ing, anything 388 The court further elaborated the distinction and found that: level of credence to the statements [that] they would accord to statements made in defamatory import, it is necessary to view allegedly defamatory statements published on the Internet within the broader framework on which they appear, taking into account both the tenor of the chat room or message board in which they are posted, and the language of the statements. The low barrier to speaking online allows anyone with an Internet connection to publish his thoughts, free from the editorial constraints that se rve as gatekeepers for most traditional media of disseminating information. Often, this results in speech characterized by grammatical and spelling errors, the use of slang, and, in many instances, an overall lack of coherence. 389 The Sandals e on the traditional media and online communications encompasses speech on Facebook. But for the exception of profiles that belong to news organization, most Facebook users do not submit thoughts, opinions, and comments to editorial review before disclosi ng them to all their friends. Furthermore, users do not conduct themselves in accordance with a Facebook Code of Ethics, and they certainly do not undergo specialized training before being able to use the platform for communication. Communication on Facebo ok 387 Id. at 34. 388 Id. at 43 (citing Cheverud, Comment, Cohen v. Google, Inc., 55 N.Y. L. Sch. L. Rev. 333, 335 (2010/2011)). 389 Id at 43 44.
91 390 type of speech that some courts recognize as a point of distinction between the press and the rest of the citizenry. Trust in editorial judgments also is motivated by the fact that the journalism profession is highl y competitive and demanding. Many working writers and journalists covet the position of editor, but only the shrewdest, most detail oriented and fastidious people obtain the position. The news market will not brook anything less from editors. However, the editorial position is not the only one that demands a high set of skills and knowledge. A journalist must also have these skills, especially if he wishes to work in the highly competitive market of journalism. 391 Anyone that seriously considers journalism a s a career must unless they have an uncanny and genius like ability for writing, grammar and reporting undergo extensive educational training. 392 Many, if not most, universities in the United States have a journalism and communications department. Journalis m students are required to take certain courses, like reporting, fact finding, editing, ethics, and media law. 393 These courses are directed at developing and sharpening detail oriented skills. The improper placement of a comma or 390 Supra note 58 391 See Vadim Niktin, Journalism Jobs H arder to Find P EW R ESEARCH C ENTER S P ROJECT FOR E XCELLENCE IN J OURNALISM Aug. 5, 2010, http://pewresearch.org/pubs/1690/survey journalism communication job market minority employment college education skills 392 See Marc A. Franklin, A Constitutional Pro blem in Privacy Protection: Legal Inhibitions on Reporting of Fact, 16 S TAN L. R EV 107, 147 more of those entering journalism have had a college education, either with specific training in journalism or w 393 See http://www.jou.ufl.edu/academic/jou/curriculum.asp See also curriculum, http://journalism.nyu.edu/undergraduate/concentrations/journalism/curriculum/ ; and http://comm.stanford.edu/journalism/brochure/Journalism at Stanford.pdf
92 mistakenly identifying an e ntity in a story may mean a loss of fifty points. 394 Suffices to say that journalism programs are meant to instill in future journalists the principles of accurate, objective, fair and responsible reporting. Like doctors and lawyers, journalists, as former S tanford Law professor Marc A. Franklin 395 One such national organization is the Society of Professional Journalists (hereinafter referred to as SPJ). 396 The SPJ is one of the leading national journalists organizations, and its code of ethics is used in many newsrooms and journalism programs around the country. 397 398 (hereinaf 399 400 by 401 As 394 At the Universi syllabus shows that a factual error will cost a student 50 points, a spelling error will cost 15 points, and a student will be given a zero if they rely on their friends, families, and other acquaintances as sources for a news story. 395 Franklin, supra note 62 at 146. 396 The SPJ is an organization of professional journalists dedicated to promoting S OCIETY OF P ROFESSIONAL J OURNALISTS http://www.spj.org/mission. asp (last visited Dec. 22, 2011). 397 S OCIETY OF P ROFESSIONAL J OURNALISTS http://www.spj.org/ethicscode.asp (last visited Jan. 24, 2012). 398 Id. 399 Id. 400 Id.
93 a greater right to control information about themselves than do public officials and ot hers who seek power, influence or attention. Only an overriding public need can justify an intrusion into 402 The above constraints typically are not present on Facebook. On the site, users are guided by their own subjective sense of ethic s and morals. The result is that users may not be as prone to trusting a disclosure on Facebook as they are about a news piece published in, for instance, the Wall Street Journal Furthermore, a person on Facebook modifies the trust he or she vests on a di sclosure based on what that individual knows about the source of the information. 403 Even though public distrust of the media today is high, at least the audience knows that the press is subject to scrutiny and backlash if there is an abundance of lies, dist ortions, or inappropriate news pieces. 404 Witness, for instance, News Corp. shuttering The News of the World in light of a phone hacking scandal or the New York Times massive mea culpa in light of the Jayson Blair 401 Id. 402 Id. 403 Interactions on Facebook are similar t o real world interactions. Researcher Max Weisbuch Max Weisbuch, Zorana Ivcevic & Nalini Ambady, cy in first impressions across personal webpages and spontaneous behavior 45 J. E XPERIMENTAL S OC P SYCHOLOGY 573, 576 (2011). In the real world we develop a sense of trust for another person from our experiences and knowledge of that person. Users engage in the same conduct on Facebook. 404 See P EW R ESEARCH C ENTER FOR THE P EOPLE & THE P RESS V IEWS OF THE N EWS M EDIA : 1985 2011 P RESS W IDELY C RITICIZED B UT TRUSTED M ORE THAN O THER INFORMATION S OURCES 1 (2011) (writing that: Negative opinions about the performa nce of news organizations now equal or surpass all time highs on nine of 12 core measures the Pew Research Center has been tracking since 1985. However, these bleak findings are put into some perspective by the fact that news organizations are more trusted sources of information than are many other institutions, including government and business).
94 scandal. A newspaper or news network can b e discredited, subsequently losing face with the public, its audience, and advertisers. These glaring distinctions between Facebook and the press change the field of the public disclosure tort and the newsworthiness privilege. In particular, they demand a more nuanced and fact specific test for determining when material deserves to be privileged as newsworthy. The current approaches to the newsworthy privilege are highly deferential to the press, and arguably should be for the reasons stated above: the pr esence of gatekeepers and intermediaries in the press force, the constraints of market forces, the educational training and development of journalists, and the ethics guiding journalistic judgments. All of these factors enhance the 405 private and embarrassing facts on Facebook beca the press are largely absent on the social networking site. On Facebook, the main factors in the should evaluate case specific factors to determine if a disclosure is newsworthy or not, and 405 See Cox Broad. Corp v. Cohn, 420 U.S. 469 (1975) others reliance must rest upon the judgment of those who decide what t See also Gilbert v. Med. Econ. Co., 665 F.2d 305, 308 (10 th Cir. 1981) (writing that the extreme case, thereby providing the breathing space needed by the press to properly exercise Ross v. Midwest th Cir. 1989) (admonishing that pencilling [sic] after the fact would blunt the quills of even the most
95 chapter presents and outlines a modified and user centered approach to the news worthiness question of a public disclosure of embarrassing facts on Facebook.
96 CHAPTER 5 A USER CENTRIC APPROACH TO DETERMINING WHAT IS NEWSWORTHY This thesis has argued that traditional approaches to newsworthiness specifically, the let the press decide approach are not appropriate on sites such as Facebook when they are used more as spaces for chatter, gossip, relationship building activities, and identity formation and management. Facebook is unlike the print media and other electronic media that vest t he power and responsibility of publicity in the hands of a group of trained professionals (i.e., journalists and editors). In light of this argument, three alternatives arise: Maintain the status quo, which is the current newsworthiness, let the press dec ide standard or the three factor Diaz approach; Eliminate the whole newsworthiness prong for public disclosure of private facts cases related to Facebook; or Modify the current standard. This thesis asse rts that a modified, user centr ic approach to newswor thiness is more pertinent to the type of communication that occurs on Facebook. This new approach is similar to Chief 406 approach in Snyder v. Phelps where he ntext, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said 407 By necessity, this approach must be applied on a case by case basis, and in addition to considering what was said, where it was said, and how it was said, it will consider who said it and why it was said. 406 Snyder v. Phelps, 131 S. Ct. 1207 (2011). 407 Id (emphasis added ).
97 Before exploring the contours of this modified, user centric approach, it is important to explain why the other two options keeping the s tatus quo or eliminating the newsworthiness prong of a public disclosure case are not as fitting to disclosure cases on Facebook. Option one would keep the newsworthiness standard as is. Under this approach, judges would be disinclined to supplant their ow n judgment as to what is newsworthiness for that of a Facebook user. The mere act of disclosure on Facebook, accompanied by an interested target audience, would be enough to invoke the newsworthiness privilege against a public disclosure lawsuit. The probl em, as explained in Part III, is that the judiciary, instead of deferring to the knowledge and judgment of an educated, trained professional who is subject to market forces and public opinion, is deferring to the knowledge and judgment of a particular user to innumerable types of people from complete imbeciles to members of the highly selective organization Mensa. 408 But even the brightest people have lapses in judgment and Facebook enables them, along with every other type of user, to publicize intimate knowledge of others to a vast ocean of people. 409 The judgments of these users are not subject to the hierarchical forces that typically constrain the decisions of journa lists and editors in the traditional press; nor are they checked by the monetary concerns that constantly push the traditional media to compete for 408 who have attained a score within the upper two percent of the general population on an approved intelligence test that has been See Mensa.com, http://www.mensa.org/ (last visited Jan. 23, 2012). 409 A user with a completely public profile has the ability to reach hundreds, if not thousands, and possibly millions, of people on Facebook. That number is depende nt on several factor s that should be considered in determining the newsworthiness of a disclosure.
98 their share of the market. 410 his own eth ical and moral code. Yet with the current newsworthiness approach which, at best, 411 judges will yield to the unchecked ethical and moral c odes of users. On the surface, staying the course with current newsworthiness standards provides users with the greatest room for free expression, but underneath the opposite is equally true. As law professor Danielle Keats Citron rehashes Warren and Bran deis and others who have written on the topic of privacy and the First Amendment: creativity and self individuals to form their personalities free from unwanted interference promotes selfhood and human relations, further a free society. 412 Elevating the right of free expression above the right to privacy paradoxically inhibits people from exercising their expansive First Amendment rights. This is especially true with democratizing and collective nature of the Facebook platform. The second alternative to the newsworthiness issue is to repeal the element altogether in social networking cases. For privacy advocates around the nation, this would be a dream fulfilled. All a plaintiff would need to prove is that the fact disclosed was private, highly offensive to a reasonable person, and publicized. Of course, satisfying the requirements of each 410 This thesis does not address the effects of marketplace competition on the quality of media coverage. Instead, it touches on the influence of marketplace competition on the d ecision making process of editorial boards across newsrooms around the country. 411 R ESTATEMENT (S ECOND ) OF T ORTS § 625D (1977). 412 Danielle Keats Citron, Mainstreaming Privacy Torts 98 C ALIF L. R EV 1805, 1832 33 (2010).
99 of these elements would still be a challenge, but the often insurmountable hurdle that the newsworthy privilege would ce ase to exist. Following this approach, any and all First Amendment concerns that precipitated the incorporation of a newsworthy privilege would not dictate the outcome of a public disclosure case on Facebook. The First Amendment values underlying the news worthy privilege allotting the press sufficient breathing space to ensure and enhance open public discussion, and would be inconsequential. The paramount charge would be protecting our individual right to privacy aga inst unwanted incursions. Ardent First Amendment supporters are likely disapprove of this option since it would expand the scope of what is normally a safe, healthy sphere of secrecy to a dangerous and destructive level, 413 and it would inhibit citizens from fully exercising their First Amendment rights. Eliminating the newsworthy element also would increase the likelihood of recovery for a plaintiff and this in turn may cause an influx of unsubstantiated claims. Facebook users, fearing their speech will subj ect them to a civil suit, would refrain from commenting on or contributing to discussions of public concern. For Facebook users that deploy the platform in their capacity as journalists and members of the press this would be detrimental. As noted in Part I II, many news organizations and 413 Philosopher Sissela Bok eloque ntly explains the varying conceptions of privacy in our society. She writes: [s]ecrecy is as indispensable to human beings as fire, and as greatly feared. Both enhance and protect life, yet both can stifle, lay waste, spread out of all control. Both may be used to guard intimacy or to invade it to nurture or to consume. And each can be turned against itself; barriers of secrecy are set up to guard against secret plots and surreptitious prying, just as fire is used to fight fire. We must keep in mind this co nflicted, ambivalent experience of secrecy as we study it in its many guises, and seek standards for dealing with it. S ISSELA B OK S ECRETS : O N THE E THICS OF C ONCEALMENT AND R EVELATION 18 19 (1989).
100 networks have their own pages and profiles on Facebook. Consequently, this approach would deprive them of their newsworthy privilege whenever they publish on the site. It is also true, however, that many of these news agenci es use Facebook more as a promotional tool or as a gateway to their primary websites than as a forum for publishing complete news pieces. 414 This suggests that news agencies are less likely to incur liability on Facebook than they are with print, television, radio, or their websites because they limit their words. Nonetheless, this thesis does not espouse reformulating the public disclosure tort to exclude the newsworthiness privilege. For the sake of judicial economy and our national commitment to freedom o f expression, it is better to maintain the privilege than not. But the issue of which standard is best on Facebook one that is pro First Amendment or one that is pro privacy does not need to be determined in a zero sum fashion. As this thesis argues and pr oposes below, there is room for a user centric approach to the newsworthiness dilemma. The last option for public disclosure cases on Facebook is to modify current newsworthiness standards toward a regiment that fully considers the content, form and contex t of a disclosure. This approach is ad hoc in nature and would require balancing multiple factors to determine where the line between private and public will be drawn on the popular social networking site. Critics may claim that this approach is too unpred ictable that it does not provide clear enough guidance to attorneys, judges and users but the nature of the platform warrants such a tack. Furthermore, the other elements of the public disclosure tort the private fact, publicity, and highly offensive to a reasonable person elements would likely limit the number of claims that survive long enough to make it to the newsworthiness determination. 414 Often times, news agencies will post short status update s commenting on or quoting an article that is posted on their website and then they will provide a link to that article on their Facebook page. See The New York Time Facebook page, http://www.facebook.com/nytime s (last visited Jan. 23, 2012).
101 Factors the modified, user centric analysis would consider include, but are not limited to: Speaker status (i.e., w ho is the user that disclosed the private information and what is his or her relationship with the subject of the speech?) Plaintiff status (i.e., public official/figure or private person?) Speech content (i.e., is it political speech? Social speech? Gossi p?) Speaker intent Fault Disclosure location (i.e., status update, tagging, instant messaging, group messages, note, group page, event page, etc.) Reach of disclosure (i.e., how much attention did the disclosure receive?) 415 standard Chief Justice Roberts Snyder v. Phelps 416 Like the Court in Snyder this thesis argues that the sociological and technological conditions of our times warrant a new analysis over those matters that are private and those that are public. The first factor considers the identity of the speaker and his or her relationship to the person harmed by the disclosure. Was there a breach of confidentiality between the speaker and the subject of dis closure? The less acquainted a person is to another, the less likely their relationship is going to be characterized as trustworthy and confidential. The opposite will probably be true: A person who trusts and confides in another expects that person to be more generalizations, of course, but the point is that there needs to be an investigation into the nature 415 Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011) 416 131 S. Ct 1207 (2011).
102 and extent of the relationship between the speaker and the su bject of the embarrassing and intimate disclosure. The next factor evaluates the status of the plaintiff: is the plaintiff a public official, a public figure, or a private person? For the definition of each of the categories judges can turn to libel law. 417 national community. A person who is active in community life, a well known political figure, a star athlete, a celebrity, or who actively seeks out public office or attention has less of an expectation of privacy than private individuals. Connected to the previous factor, but nonetheless an element in and of itself, is the content of the speech. Does the disclosure constitute political or social expression or is it mere gossip? Here, courts would examine the language of the disclosure, and as in libel law, judges would give words their commonly understood meaning. Additional ly, judges would consider the context surrounding the disclosure to determine if the speech is political, social, or scandalous in nature. A principle of First Amendment jurisprudence although one that has sparked controversy over the years is that differe nt types of speech deserve varying levels of protection. Political and social expression receive the most protection, whereas commercial and non obscene 417 The law of libel requires plaintiffs to prove that the defendant acted with fault. However, there is not uniform level of fault applied across th e board in all defamation cases. The level of official, a public figure, or as a private person. See generally N.Y. Times v. Sullivan, 376 U.S. 276 (1964) (ho lding that public officials have to prove that the defendant acted with NY Times Actual Malice); see also figures also have to prove that a defendant acted with NY Times Actual Malice); G ertz v. Welch, Inc., 418 U.S. 323 (1974) (holding that private plaintiffs must at least prove that the defendant acted negligently. This case also introduced the different categories of public figures. There is the all purpose public figure, the limited or vortex public figure, and the involuntary public figure).
103 sexual expression receive less, and fighting words, defamation, false, advertising and obscenity receiv e none. 418 Thus, judges, if not juries, should engage in a deliberative process to define the content of the speech disclosed in determining whether the private and public threshold has been breached. The next variable in the private public equation consider s the intent of the speaker. This factor is also intertwined with the previous two elements, but nonetheless should be a point of consideration in any public disclosure case involving Facebook users. The key questions here are, why and what ? Why did the sp eaker decide to disclose highly intimate and embarrassing information about another user on Facebook? Was it out of spite, or was it for a greater good? What was the speaker purpose in causing another person emotional and mental distress? What was the purp ose of the speaker in robbing another person of his dignity and autonomy? Fault is the next factor in the analysis. This is really an invocation of libel law and it also goes to the heart of proving intent. Here the varying levels of fault used in libel la w would apply: did the speaker act with N.Y. Times actual malice or with negligence? 419 The level of applicable fault would pivot on the status of the plaintiff. 420 This element is meant to balance privacy 418 See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). 419 There are two different levels of fault in libel law. The highest and hardest level of fault to prove is referred to as N.Y. Times Act ual Malice. This requires a showing that the defendant either knew of the falsity of a statement or with reckless disregard of its truth. See N.Y. Times v. Sullivan, 376 U.S. 276, 280 (1964). The other level of fault, and one that is much easier to prevai l upon, is negligence. Negligence only requires a showing that the defendant did not act like a reasonable person in his or her position would have acted. However, some states apply an average person standard and others a professional standard. Compare Mem Nichols, 569 S.W.2d 412 (Tenn. 1978), with Martin v. Griffin Television, Inc., 549 P.2d 85 (Okla. 1976). 420 See supra note 12
104 interests against First Amendment interests. The diffi culty of prevailing on a public disclosure The penultimate factor in the analysis is objective in nature. It requires consideration of the Facebook tools used for communication and lo cation of the disclosure. Was the disclosure made to a select group of people, or was it published as a status update, subsequently appearing business page? By consider ing the function used for communication and the location of the revealed. This factor also helps the law determine the breadth and reach of the disclosure, w hich is the final variable in a new, user centric approach to newsworthiness issues on Facebook. By determining the location and tool used for disclosure, the law will be able to determine the reach of the disclosure into the public arena. How much attenti on did the or concern for a disclosure. A defect with this factor is that it requires a determination of whether there was initial public interest or whether th at interest was ignited post publication. But the remedy here would be that this is just one factor in a multi prong approach to the private public like it is with the traditional news media. So considering the location and reach of a disclosure will provide courts with an objective approach that would result, this th esis argues, in a more just resolution.
105 The new, user centric modified approach to the newsworthiness privilege is akin to the totality of the circumstances standard that courts commonly apply to a number of legal issues. 421 Following this totality of the ci rcumstances approach, no one factor is dispositive on the issue of newsworthiness, nor do all the factors hold equal weight. Instead, there should be a hierarchy of factors. The primary factor, and the one judges should weigh more heavily than the others, is the status of the plaintiff. The second most valuable factor is the status of the speaker, followed closely by the content of the speech. The fourth and fifth factors the intent of the speaker and would hold equal weight in the overall analysis. Finally, the sixth and seventh factor also interchangeable like the fourth and fifth factors would be the last variables courts would consider and would be the least determinative on the issue of newsworthiness. In su mmary, the hierarchy of factors would look as follows: Plaintiff status Speaker status Speech content Speaker intent and fault Disclosure location and reach The status of the plaintiff would likely be dispositive on the issue of newsworthiness. If a plain tiff is a public official or a public figure, then he would have a lesser expectation of privacy and the public would have a greater right to know. The reasons for making this factor a highly dispositive variable in the newsworthiness equation are similar to those offered in key 421 In criminal law, courts rely on a totatility of circumstances standard to determine whether a increasing, range of factors Questioning the Questions: The Impermissibility of Police Deception in Interrogations of Juveniles 99 NW. U. L. R EV 971, 978 (2005).
106 defamation cases primarily that public officials and figures voluntarily seek public attention, approval, and support. 422 Because public officials and figures make a living off the public either because of their public service or beca use of their fame it is reasonable to expect a minimum level of public interest in their lives. The same cannot be said about private individuals who avoid public controversy or about those private individuals who are involuntarily ensnared into matters of public concern. There is an inherent definitional issue with determining public and private figure status on online social networks: what community will courts consider to determine if a plaintiff is a public figure or not? A person may be a public figure in the Facebook world, but maybe not in in the real world may not be as prominent. The status of the speaker is the second weightiest factor for reasons hi ghlighted in Part III. If the speaker is a journalist acting in a journalistic capacity, then the courts should avoid undue interference with the editorial judgment underlying a disclosure. Alternatively, if the speaker is a non journalist, courts should b e less deferential to his judgment and more suspicious of his intentions. This is because those limiting factors that constrain, and are the hallmarks of editorial judgment, have no bearing on a non The content of the disclosure is the third factor courts should consider and give greater value in the newsworthiness calculation. A disclosure that is part of a political or social message 422 In Gertz v. Welch, In c. Justice Lewis Powell emphasized differences between private plaintiffs and public figures to justify the application of varying fault standards in libel suits. He explained that public figures, by nature of their position, expect public commentary on t heir figures, unlike private plaintiffs, have more access to are therefore better able to rehabilitate their reputations. Gertz v. Welch, Inc., 418 U.S. 323, 345, 338 (1974).
107 should tend to be more newsworthy than not. Alternatively, a disclosure that is purely the revelat ion of a highly embarrassing private fact should weigh against a conclusion of newsworthiness. This is consistent with the traditional Firs Amendment principle that at the core of First Amendment protection is expression that is political or social in natu re. An issue here would be how courts define and categorize gossip. Gossip does have social value, 423 so the weight that courts give to disclosures that are part of a message characterized as gossip should turn on the previous two variables the status of the plaintiff and of the speaker. For example, gossip about a public official or figure, published by a journalistic entity would have a strong tendency of being newsworthy. The opposite would also be true. Gossip about a private individual published by a non journalistic entity has a lesser tendency of being newsworthy. This would leave a gray area in between both extremes, but one that could be clarified one way or the other by the other proposed newsworthiness criteria. The intent of the speaker and the spe Furthermore, what value a court gives to these variables will pivot on the status of the speaker and of the pla intiff. For example, if the plaintiff is a public official or figure and the speaker is a member of the press, then less value should be given to the intent and fault of the speaker. If the plaintiff is a private person and the speaker is not a member of the press, then more value and consideration should be given to the intent and fault of the speaker. So a public disclosure made by a journalist about the intimate details of a public figure or official, made with a malicious 423 See Diane L. Zimmerman, Privacy To rt, 68 C ORNELL L. R EV 291, 333 34 (1983) way to learn about social groups to which they do not belong, gossip increases intimatcy and a ip may also foster the development of relationships by giving two strangers the means to bridge a gap of silence
108 intent to harm and with knowle dge of the harmful effect of the embarrassing disclosure should not be deemed newsworthy. This may, at first glance, go against established First Amendment precepts involving the press and speech, but closer inspection reveals that this is a very high stan dard to meet. Here intent must be solely malicious in nature; there cannot be proof of an alternative motive such as informing the public or contributing to public debate on political, social, artistic, scientific, religious, or even sensationalistic issue s. Furthermore, the required standard for fault is knowledge, which, as is evident with current actual malice standards, is very hard, if not impossible to prove. 424 At the other extreme of the intent and fault value spectrum is an embarrassing disclosure m ade about a private person by a non journalist. In this situation the courts should give greater weight to the intent and fault of the speaker, and they should require a lesser showing for both. For example, instead of requiring a plaintiff to show that th e only purpose for the embarrassing disclosure was to inflict mental and emotional harm, the plaintiff could show that inflicting harm was a reason for the disclosure. A private plaintiff would not have to show knowledge, but does have to show recklessness the defendant was highly aware that his conduct could cause injury. Taking the above analysis on the value to be given to the intent and fault of the speaker, then courts when dealing with an embarrassing disclosure about a public figure or official, made by a journalists should give less weight to intent and fault, unless the plaintiff can show malicious intent and knowledge on behalf of the defendant. In the alternative, courts when 424 See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyber space 49 D UKE L.J. 855, 874
109 dealing with an embarrassing disclosure about a private person made by a non journalist should give greater weight to the intent and fault of the speaker, and require the plaintiff to show that malice was a reason for the disclosure and that the defendant acted recklessly. intent will also be inherently difficult. Especially when mix motives are involved. Proving intent raises evidentiary issues: how can you and inflict emotional dist ress? Nonetheless, courts should weigh what the defendant intended in making an embarrassing disclosure. The interest served by the public disclosure tort is to remedy the harms attending an embarrassing disclosure, and there is no clearer measure of liabi lity than what the defendant intended did the defendant intend to inflict harm? The least determinative factors in the newsworthiness calculation are the location and reach of the disclosure. By themselves, these factors are not dispositive on the issue of newsworthiness, but do add weight to the overall measure. Of course, the greater the reach of an embarrassing disclosure, then the more likely a court will find it newsworthy. The alternative is also true. The less reach or exposure an embarrassing disclo sure receives, then the less likely that it will be newsworthy. In determining the weight to be given to each factor and its measure in the overall newsworthiness balance an analogy can be made to the structure of a pyramid. At the bottom, the very founda tion of a pyramid, is the status of the plaintiff as a public official, public figure, or a private person. A finding that the plaintiff is a public official or figure will militate strongly in favor of newsworthiness. A finding that the plaintiff is a pri vate individual even if he or she is involuntarily involved in a matter of public concern militates strongly against newsworthiness. The next level in the pyramid, is the status of the speaker. A finding that the speaker is a
110 journalist militates in favor of newsworthiness, and a finding that the speaker is a non journalist militates against newsworthiness and requires greater consideration of the remaining factors. The third level addresses content of the speech. Political and social expression, along with gossip about public officials or figures, favors a newsworthiness finding, whereas gossip about private individuals will tend to weigh against it. The second to last level on the pyramid is composed of the intent and fault of the speaker. A finding that the speaker acted with malicious intent and knew that the embarrassing disclosure would cause mental and emotional harm militates against newsworthiness, and a finding that the speaker acted without malice and was negligent, at best, would militate in favo r of newsworthiness. The last level the peak of the pyramid considers the location and reach of a disclosure. An embarrassing disclosure made via, say, the news feed by a user who has over a 1,000 friends in his network militates in favor of newsworthiness On the other hand, a disclosure made via a private message to less than 100 other users (assuming that this satisfies the publicity element of the public disclosure tort) militates against a finding of newsworthiness. Notably some of these criteria may r equire a finding of more than a simple yes or no answer. For example, an inquiry into the content of a disclosure will more likely than not take judges into a more complicated analysis, one that abounds with grey areas. It is unlikely that judges will be a ble to neatly categorize speech as either political or social expression, or gossip. As a result, judges for the content of speech and other factors, like the location and reach of a disclosure will have to reason along a range of possibilities. For exampl e, does the content have a tendency of being more political in nature? Does the fact that the speaker published an embarrassing disclosure as a private message to over 100 people shift the bar more towards
111 newsworthiness than not? Judges and potentially ju ries will have to engage in this type of Finally, these are just some factors proposed in this thesis, but the equation is open to other unnamed factors that coul d be unique to a specific case. There should be room for the unexpected with this new modified approach. By allowing judges and juries to consider a public disc factor should only be considered in cases where the circumstances surrounding a disclosure are distinct and novel. Otherwise the default would be to rely on the enumerated fact ors. Our interest in privacy as a bulwark of individual dignity and autonomy cannot brook conformity with the status quo. Informational privacy rights are being attack by technological innovations such as Facebook that allow for unfettered and uninhibite d communication among people. The status quo does not defend against this onslaught. At the same time, however, these technologies are divesting the elite and increasingly uniformed press of its grasp over communication channels. The democratizing effects of these technologies should not be stifled by an approach that does away with the private public threshold between protected and unprotected communications. Thus, the law should adopt or modify the traditional newsworthiness analysis to reflect the change s that are, and have been, taking place since the introduction of social networks such as Facebook. This requires an approach that considers the unique relational dynamics between people who engage in social interaction on Facebook.
112 CHAPTER 6 CONCLUSION This thesis began by asking two questions: 1. Should the legal standard of newsworthiness, as it is applied in the public disclosure of private facts tort, be modified when private, truthful information is posted by non journalists on social networking sites such as Facebook?; and 2. When applying the concept of newsworthiness to private, truthful information posted by non journalists on social networking sites such as Facebook, should courts take into account criteria and variables relating to the expectations of the users of such sites, as well as technological characteristics of the precise manner, mode or location of communication on an online social network site? This thesis answers these questions in the affirmative. The technological landscape and the incr easing dominance of Facebook as the most widely used social network warrant reconsideration of the legal standards underlying the newsworthy privilege in public disclosure cases involving the popular site. Furthermore, any reconsideration requires modifyin g the privilege to evaluate and balance several factors relating to the expectations of users and the unique technological characteristics of communications on Facebook. If courts apply traditional newsworthy standards to the online world of social network s, there is a high probability the balance between privacy and free expression will tip in favor of the First Amendment, to the detriment of the right to be let alone. Alternatively, if courts jettison the privilege altogether, privacy interests will be un duly and unnecessarily enriched by an one like the one espoused in this thesis that considers the context, content, and form of a disclosure, akin to that in Snyder v. P helps The logistics of this new, factor based approach taken together with the other elements of the public disclosure tort will result in the application of the new standard in a limited number of cases. The modernized public disclosure and newsworthine ss analysis will apply to
113 speech that occurs on Internet sites, such as Facebook; and it will apply to speech engaged in by people not acting in a journalistic capacity. The current state of the public disclosure tort already places substantial burdens on plaintiffs. For example, they still need to prove that a fact is private and not public a feat arguably more complex today because of technological innovations. Plaintiffs still must show that the disclosure of the private fact was publicized publicity is easily attained on sites such as Facebook, but courts may reconsider the definition of the term in light of the prevailing communications atmosphere. Finally, plaintiffs must still prove that the disclosure was one that a reasonable person would find high ly offensive. This limits many of the cases to which the new standard is applied because there are only a limited number of informational revelations that should be found to be highly offensive. 425 The overall goal of a modified approach is to recalibrate t he newsworthiness equation so reach that goal. Refashioning the p ublic disclosure of private facts tort ensures its survival in a society that increasingly values openness, transparency, narcissism and extroversion. 426 425 sufficient to give  a cause of action. only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it, that the cause of R ESTATEMENT (S ECOND ) OF T ORTS § 625D (1977). 426 In February of 2012, Time mag azine published an article titled The Upside of Being an Introvert In that article, English professor at Northwestern University, Christopher Lane norm, and a The Upside of Being an Introvert and Why Extroverts are Overrated T IME Feb. 6, 2012, at 42. See also Barbas, supra note 19, at 189 95 (explaining how Victorian American society transformed
114 The factors proposed in this thesis as an alternative to the current approach to newsworthiness are the result of extensive research into existing case law, law review articles and academic scholarship on public disclosure cases, relevant defamation law, and mass communication theory related to social networks such as Facebook. It thus is imperative to highl ight the limitations of this research. First and foremost, the research failed to find judicial decisions regarding public disclosure on Facebook or other social networks where newsworthiness was the central controversy. Instead, courts dismissed the plain because the facts disclosed had already been made public. 427 As a result, the newsworthiness factors proposed here are the product of a hypothetical m and context test. The recency of Snyder may be more willing to implement their own judgment as to what is or is not a matter of public concern. The Court in Snyder eventually sided with the First Amendment rights of the defendants, but not before engaging in a deliberate and in depth analysis of the factual Another limitation is the paucity of comprehensive social research into what Facebook expectations of privacy are when public disclosures of private facts are involved. There is substantial research showing that the majority of users are unaware about the data mining privacy issues inherent with Facebook use, and research also shows that us ers are more concerned about hacked accounts and stolen identities, but there is not much scholarly work on information privacy. As a result, users on Facebook may have the same expectations of privacy 427 See Moreno v. Hunford Sentinel, Inc. 172 Cal. App. 4th 1125 (2009) See also Doe v. Peterson, 784 F.Supp. 2d 831 (E.D. Mich. 2011) (Court found that the fact disclosed a naked image of the plaintiff was already public since she texted it to her boyfriend).
115 over their intimate and personal information as they d o in the real world, or they may adjust those expectations to reflect their experiences on the site. Future research should focus on addressing how users incorporate their fears and concerns for their private information into the decisional making processe s they engage in when they decide to log onto Facebook and interact with a network of people, some of which are trusted friends and others just mere online acquaintances. Future research should also track whether or not the public disclosure tort is a reme dy that Facebook users will resort to in invasion of privacy cases. As of now, as mentioned earlier, there are scant public disclosure cases involving speech on Facebook or other social networking sites. Finally, future research should track case law to de termine if public disclosure cases related to social networks will pivot on the private public fact threshold. Most cases today demonstrate that courts have dismissed public disclosure cases on the grounds that the alleged private fact disclosed was actual ly public. Nonetheless, it is undisputed that the technological landscape has shifted the traditional contours of First Amendment and privacy debate. The law must adapt to these changes to ensure that the balance between the right to be let alone and the p
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125 BIOGRAPHICAL SKETCH Mirelis Torres obtained her Juris Doctor and a Master of Arts in Mass Communication from the University of Florida in 2012. She also obtained a Bachelor of Arts in English l iterature from the University of Florida. Mirelis was the Graduate Teaching Assistant for the Law of Public Communication course for three semesters, and co authored two ar ticles with Dr. Clay Calvert. One of the articles she co authored, Putting the Shock Value in First Amendment Jurisprudence: When Freedom for the Citizen Journalist Watchdog Trumps the Right of Informational Privacy was published in the Vanderbilt Jour nal of Entertainment and Technology Law and won top faculty paper at the AEJMC Southeast Colloquium in March 2011. Mirelis has focused her graduate scholarship on privacy and First Amendment issues.