April 01, 2014

Privacy: We’re Not Newsworthy

Eric M. Schiffer

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Chief Justice Earl Warren once foretold that “the fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Yet, these days, everyone seems to crave public notoriety and celebrity of any sort, don’t they? YouTube is packed to the gills with candid (and not so candid) moments from those just waiting to share their private lives with anyone who happens to pass by their link and click “play.” Reality shows, cooking shows, game shows, daytime talk shows—they are all filled with would-be celebrities clamoring for their 15 minutes of fame. Electronic communications of all types inundate our lives now more than ever and make those moments possible.

But what about those who agree to participate in a broadcast on the specific condition that their identity not be revealed? Do they have privacy rights, or do those rights disappear the moment they agree to sit in front of the camera? And what if the interviewee is a former prison gang member who has intimate knowledge of notorious and dangerous gang members but who has been earning his living as a police informant, having decided to turn his life around and get away from gang life? Not only could disclosure of his identity compromise his ability to make a living, but it could cost him his life. Is he entitled to have his identity remain private as he requested—even though he knew the cameras were rolling? Well, the tort of public disclosure of private facts is alive and well and living in the Ninth Circuit. InJohn Doe v. Gangland Productions, Inc., 730 F.3d 946 2013 LEXIS 19102 (9th Cir. 2013), the court found that the police informant’s identity was not of legitimate public concern and allowed his claim against the media defendants who aired his identity during the broadcast to proceed.

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