Public vs. Private Figures, Case Study Example

Abstract

The issues arising from media relentlessly offering pictures and new about celebrities are as old as media itself.  Since people first attained notoriety as public figures in the arts, they have both sought exposure for themselves and resisted efforts of paparazzi to document their everyday activities.  What changed in the 20^th century was technology.  As zoom lenses and other means of obtaining images were developed, so too has modern media offered immense outlets to satisfy public demand for them.  Today, more than ever, celebrities vehemently oppose what they perceive as intrusions on their privacy.  They file lawsuits alleging criminal invasion, they bemoan how no activity is safe from a spying photographer, and these stories in themselves seem to create an even greater desire from the public for more.

In all of this, the courts are continually uncertain, and rulings in one case contradict those rendered for another.  At the same time, other issues come into play, complicating any such decision making.  On a basic level, a symbiotic relationship exists between celebrity and paparazzi, because both rely on each other for career success, the objections of celebrities notwithstanding.  Public safety is raised as a serious factor because of the extremes paparazzi will go to in order to photograph an elusive celebrity, as the stories attached to the pictures are often cited as libelous by the subjects.  The courts, seeking to protect the constitutional rights of all, are then in an inevitable state of confusion.  Ultimately, the conflict is protracted because the very nature of celebrity sets it apart from ordinary life, and is largely based upon attracting public notice.  This being the case, and with exceptions when the actions of the media go to criminal violations of personal rights, the celebrity must accept that a desire for notoriety must sometimes translate into these unwelcome forms of attention.

Background

Perhaps no case of privacy intrusion is more well-known than that of Galella v Onassis, and the results of the suit stand as a template of the judicial wavering that has occurred since.  When photographer Ron Galella pursued the former First Lady to an extent she felt endangered her children, she brought action against him in 1972.  The U.S. Court of Appeals found in favor of Mrs. Onassis, but only to an extent; Galella was simply ordered to maintain distances of 50 to 75 feet away from her and her children, respectively (Galella v Onassis).  While the courts derided Galella’s actions and indicated that he verged on criminal trespass,  he was still permitted to pursue Mrs. Onassis largely as he was able.  Several factors are noteworthy about this landmark decision, not the least of which was Mrs. Onassis’s stature in the public eye.  This was not an actress demanding justice and protection, but a beloved public figure and a mother.  Nonetheless, and as evidenced by Galella’s focus on her, that same public was eager for any images of the lady, This goes to the factor of “newsworthiness,” which complicates rulings today.  Unfortunately, an idealistic view of newsworthiness as maintained by the courts does not usually apply to the pragmatic reality of what people perceive to be “news.”

This basic component within any case of perceived privacy intrusion by a celebrity, inherently problematic, came to the fore in the 1975 case of Virgil v Time Inc.  As will be seen, the 9th U.S. Circuit Court of Appeals ruling then cast a wide net in determining what might be deemed newsworthy.  Mike Virgil, an athlete famous for his body-surfing stunts at a California beach known as the Wedge, consented to be interviewed by Sports Illustrated.  Before the story was published, however, Virgil withdrew his agreement and sued the magazine when it ran the story.  The appeals court, as with Galella, rebuked the magazine for failing to comply with Virgil’s change of mind.  Ultimately, however, the court found in favor of Sports Illustrated (Virgil v Time, Inc.), and not because  Virgil had rescinded his consent.  Rather, the courts held that the surfing stunts of Virgil might be of public interest.  Here, then, what is “newsworthy” is defined, not by a standard of content value, but more by what the public wishes to see.  This was and remains a critical ruling, for it goes to the core of the celebrity/paparazzi symbiotic relationship mentioned earlier.  Simply, as celebrities rely on media exposure, they are in no position to denounce it by virtue of their creating the demand in the first place.  The celebrity, seeking to be in the “news,” establishes their action then as newsworthy.  This places the courts in the untenable position of having to arbitrate between intrinsically contradictory interests, as well as requiring them to acknowledge, without condemning, public appetites for information and images of public figures.

The Virgil case is all the more interesting, then, because the court attempted to do the latter, as it technically differentiated between what is newsworthy and what is not: “When the publicity…becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern” (Virgil v Time, Inc.).  On face value, this is an admirable distinction.  The problem is, as with so many cases of celebrity lawsuits, that the public typically finds virtually anything having to do with a celebrity interesting.  When precisely this fascination with public figures may be deemed “morbid and sensational,” then, is unclear, simply because the nature of the fascination is sensationalistic to begin with.  In plain terms, the law is unequipped to definitively address this issue because the nature of it is subjective, and each court is as swayed by juror and surrounding sensibilities as the next.

On a more direct level, it is certainly true that celebrities are not doomed to victimization at the hands of paparazzi, simply because basic constitutional rights protect them from overt harm.  Nonetheless, as noted, boundaries defining privacy transgression in this areana are at best blurred, and most celebrities do not take their grievances to court.  A notable exception was Carol Burnett’s suit against the National Enquirer in 1983.  The tabloid had run a story in 1976, clearly alleging that Ms Burnett had been intoxicated at a Washington, D.C., restaurant, and had gotten into a loud argument with Henry Kissinger.  Burnett pursued the magazine and a retraction was printed, but she remained unsatisfied.  The California court found in favor of Ms Burnett, awarding her punitive compensation in the amount of $750,000 (Carol Burnett v National Enquirer, Inc.).  The tabloid, however, fought back and an appellate ruling reduced the award to $150,000.   What decided the issue was the New York Times v Sullivan case of 1964, and that Burnett had been unable to prove that the tabloid ran the story out of malicious intent.   If unable to settle issues of newsworthiness, the Sullivan decision at least provided a “bottom line” standard for determining media agenda.

There can be no proper examination of Burnett’s victory, however, without an assessment of how individual concerns dictate both actions and judicial response in celebrity privacy matters.  As with Mrs. Onassis, Burnett was a beloved public figure, and this clearly had an impact on any decision in her favor.  Then, Burnett had long been a spokesperson against alcohol abuse, so the implication that she had been intoxicated significantly added weight to the purported injustice done to her by the magazine.  It cannot be emphasized strongly enough that celebrity status is a highly individual and subjective quality, and that gradations of public favor or disapproval, which the celebrity employs to further career progress, must also play into adjudicating privacy transgressions.  Burnett, more to the point, had never been perceived by the public as aggressive for publicity or less than moral; consequently, no court could be completely distanced from influence in this regard, particularly as the law itself remains malleable in all such cases.  All that went against her complete victory, in fact, was the lack of provable malice on the magazine’s part.  The retraction and ruling themselves, however, translate to an important point, in that celebrities are by no means inevitably the helpless victims of irresponsible media.

Argument

As may be inferred, the courts face a truly unenviable task.  Moreover, what is expected from them in these cases consistently serves to reinforce an inevitable circumstance: celebrity draws exposure because celebrity is founded on exposure, and it is ultimately unrealistic for any celebrity to assume that control of this lies with themselves.  In entering the public arena voluntarily for the purposes of any sort of self-promotion, it must be acknowledged that substantial measures of privacy are forfeited.

Modern technology complicates the issue further, as paparazzi and others are no longer limited to zoom lenses to obtain images and information of celebrities.  At the same time, ironically, this increased accessibility may serve to provide celebrities with legal protections more commonly enjoyed by the general public.  For example, a case of 2010-2011 involving direct invasion of personal liberties resulted in criminal prosecution.  Christopher Chaney pleaded guilty to nine felony counts for hacking into a variety of celebrity email accounts.  Chaney’s method was ingenious; he devised security passwords to the protected accounts of Mila Kunis, Scarlett Johansson, and others by means of drawing password possibilities from information commonly available about the celebrities.  Once “in,” he then had access to other celebrity addresses.  Moreover, Chaney used the emails to actually  pose as the celebrity victim  and obtain photographs from other public figures, which he then exploited on the Internet (FBI).  It appears that the court in this case comprehended that certain levels of intrusion go beyond any implied waiver of celebrity privacy, which means that all persons can trust that such violations to privacy at this level are protected.

Nonetheless, other issues abound.  It may be assumed that more modern cases of celebrities filing suits of this nature are being addressed in more definitive ways by the courts, particularly after the paparazzi-related death of Princess Diana.  Unfortunately, clarity as to exact meanings of invasion of privacy remain as debated as when Ms Onassis brought charges against Ron Gallela.  For example, a 2004 ruling by the European Court of Human Rights in Strasbourg, Germany, held that photos taken of Monaco’s Princess Caroline were illegal, as they did not reveal her as acting in her official capacity, and the images went to no “public concern.”  More recently, the princess lost a similar battle; in 2008, the same court decided that similarly recreational photos of the princess and her family would violate freedom of expression (Longbottom).  It then may be seen that international addressing of the issue is no more definitive than that of the U.S., which goes to the inherent contradiction within celebrity resistance to aggressive media.

Then, the ongoing controversy presents oddly ironic opportunities for others.  In 2008, Los Angeles Councilman Dennis Zine introduced a motion to prevent paparazzi from engaging in their occupation in school and hospital zones, as their activities endanger the public.  Zine’s press release assesses the paparazzi:  “They block access to critical facilities, speed in these zones, impede traffic flow, and violate the privacy of celebrities and their children” (Zine).  What is most interesting here is how Zine deftly incorporates concerns of celebrities within actual, safety issues, a maneuver likely responsible for his being endorsed by the Screen Actors Guild.  More to the point, such a political statement reveals the weakness in argument based on public safety.  Certainly, no practice that endangers life may be tolerated by the courts, yet it is specious to argue that a photographer poses such a threat by virtue of blocking a school exit.

Essentially, U.S. federal law does not address privacy or publicity rights, most likely because the arena is so complex, and involves the constitutional rights of all parties concerned.  The Lanham Act is the exception; this federal statute prohibits the unauthorized use of anyone’s likeness to create a false advertisement (Library of Congress).  The extremely narrow scope of this provision, however, only emphasizes how subject to interpretation other issues of the subject are.  In California, for example, taking photographs with telephoto lenses may be grounds for liable, but the act is by no means defined as such, because conduct that is deemed annoying, yet not endangering or threatening, is typically not actionable in the courts (Krages 33).  All of this serves to emphasize a reality more apparent with increased media technology, greater public demand, and a wider audience.  The scope of the activity is such that only direct, criminal violations seem to carry judicial weight, and this reflects a necessary approach.  To be a celebrity is most commonly a voluntary state, and one reliant on exposure to the public.  Consequently,  the celebrity must understand and accept that such a seeking of notoriety will sometimes translate into the unwelcome form of  paparazzi attention.

Works Cited

Carol Burnett v National Enquirer, Inc..  143 Cal. Rptr. 206.  Court of Appeals of California, Second Appellate Division. 1983.  Web.  law.umkc.edu.  18 July, 2012.

Federal Bureau of Investigation (FBI). Florida Man Pleads Guilty to Computer Intrusion and Wiretapping Scheme Targeting Celebrities.  Los Angeles Division.  26 Mar., 2012.  Web. Retrieved 17 July, 2012, from http://www.fbi.gov/losangeles/press-releases/2012/florida-  man-pleads-guilty-to-computer-intrusion-and-wiretapping-scheme-targeting-celebrities

Galella v Onassis. 487 F. 2d  986. United States Court of Appeals for the Second Circuit. 1973. ny.findacase.com.  Web.  18 July, 2012.

Krages, Bert.  Legal Handbook for Photographers: The Rights and Liabilities of Making Images. Buffalo: Amherst Media, 2006.  Print.

Library of Congress.  Privacy and Publicity Rights.  2003.  Web. Retrieved 17, July,  from http://lcweb2.loc.gov/ammem/copothr.html

Longbottom, Wil.  “Media Interest in Lives of Celebrities is Legitimate, Human Rights Judges Rule.” The Daily Mail.  2008. Web. 18 July, 2012.
New York Times Co. v  Sullivan.  376 U.S. 254. Supreme Court of the United States.  1964. Cornell University Law School. Web. 23 June, 2012.

Virgil v. Time, Inc.  424 F. Supp. 1286, 1289.  United States Court of Appeals for the Ninth Circuit. 1975. citmedialaw.org. Web.  18 July, 2012.

Zine, Dennis P.   Press Release: Councilman Zine Introduces Motion to Protect School Zones and Sensitive Use Facilities from Intrusive Paparazzi.  18 Nov., 2008.  Web.  Retrieved 17   July, 2012, from http://ens.lacity.org/council/cd3/pressreleasearc/cd3cd3press14256897_11182008.pdf