Category: Media Law


William Prosser and the Privacy Torts

I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.


The Tort of Privacy’s Racist Past

As New York Times v. Sullivan made clear, defamation has a bigoted past.  There, Montgomery, Alabama’s police commissioner brought a defamation suit against The New York Times after it published an advertisement, “Heed Their Rising Voices,” which suggested law enforcement’s interference with civil rights protests.  Sullivan based his defamation suit on this premise: accusations of racism hurt my reputation in Montgomery, Alabama.  At the time, it was a truly laughable proposition given the racial hatred so prevalent in the white community there.  No matter, Sullivan and others after him tried to use the law of defamation to silence mostly Northern papers writing about Southern bigotry and officially sanctioned violence against civil rights leaders and others.

In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming Cal. L. Rev.), I stumbled across  Afro-American Publishing v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966), a case that told a Sullivan-esque story but with a privacy twist.  A white drug store owner sued the Washington Afro-American (the “Afro”), a D.C.-based, bi-weekly paper, for invasion of privacy and libel.  The plaintiff sold the Afro in his drugstore, and canceled it because the paper “spread racial hatred and distrust.”  In the October 14, 1961 edition of the Afro, the paper covered plaintiff’s cancellation of the Afro, noting that plaintiff had told Afro’s editor that his black customers had a “low level of intelligence” and were ignorant.  Plaintiff prevailed at trial on the privacy and libel claims.

The D.C. Circuit, writing en banc, recognized the common law right to privacy in the District of Columbia based on the Warren and Brandeis formulation of a person’s “right of private personality,” the “right to be let alone.”  The court noted that much like in 1890 when Warren and Brandeis wrote The Right to Privacy, the “communications explosion” and “mechanical and electronic devices for snooping” of the 1960s imperiled privacy.  Although the D.C. Circuit noted that the right of privacy stands on “high ground, cognate to the values and concerns protected by constitutional guarantees,” it is not absolute and must permit the press to publish discussions vital to democracy.  As the court held, “[w]hen a proprietor of a news vending outlet in a predominantly Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion . . . without fear of an overhanging action for invasion of privacy.”

This case reminds us that just as batterers invoked the mantle of privacy to hide domestic violence, some used the tort of privacy to silence media attention to bigotry.  (There are no doubt better cases for the point, but I use this one just because I found it seredipitiously).  This case brings to mind Lior Strahelivitz’s important work in Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Northwestern L. Rev. 1667 (2008), where he explores how information privacy protections can undermine antidiscrimination law and how government can in certain circumstances reduce the prevalence of unlawful discrimination by publicizing previously private information about individuals.  A fascinating read on the promise of sunlight.


Scientology and the Media

450px-Founding_Church_of_Scientology_signMuch like everything else in our debt-ridden economy, the media has hit hard times.  Papers have folded, fired staff, or been sold.  This leaves news markets with fewer papers and less investigative reporting.  Amidst this glum report comes another trend worth discussing.  As the mainstream media centralizes its overall presence in a few organizations, some papers left standing have been acquired by organizations with strong religious affiliations.

Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists.  e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979.  The Times Publishing Company still owns The St. Petersburg Times, which has long investigated and criticized the Church of Scientology.  In the last several months, The St. Petersburg Times has run a series of scathing articles on the Church of Scientology under the title “The Truth Rundown.”  (In 1980, that newspaper won a Pulitzer Prize for an investigation of the church’s inner workings).

Governing staffers worry that their new management’s religious practices may affect their jobs.  According to The New York Times, their anxiety stems from  2001 article in the Sacramento News and Review reporting that e.Republic’s staff members were required to read a book on management called “Speaking from Experience,” written by L. Ron Hubbard, the founder of Scientology.  e.Republic’s Chief Operating Officer has said, however, that in his 13 years at the company, he had never read Mr. Hubbard’s book.  Some of the staffers’ concerns might be alleviated by the fact that e.Republic has long published Government Technology (GT) magazine, one of my favorite sources for my work on government’s use of information technologies, with no sign that the owner’s religion has had an impact on the stories that GT publishes.  But no matter, this trend is worth watching as newspapers continue their downward spiral.

Wikimedia Commons Image

Convenience is King

A recent article in the Boston Review by Evgeny Morozov laments the influence of Wikipedia. I found this passage a particularly interesting take on the epistemology (and ecology) of the web:

Wikipedians . . . are obsessed with popular culture and less equipped to document the high-brow. The 711-word entry on nouvelle vague filmmaker Claude Chabrol, for example, is much less impressive than the 1867-word article on Transformers-director Michael Bay. . . . [T]he real tragedy of the Wikipedia method is that it reduces intellectual contributions to such granular units that writing a 2000-word entry on Chabrol in one sitting feels like painting the ceiling of the Sistine Chapel. And if you do go to such lengths to improve the site, you do not want the bureaucrats—who may know nothing about Chabrol—to judge your contribution. There is something unappealing about the value system of a project that prizes, say, movie reviews quoted from college newspapers over elaborate entries in the authoritative Schirmer Encyclopedia of Film, simply because the latter does not have an easy-to-link Web site.

The Google fetish, it should be noted, is not ideological, but practical. Since Wikipedia’s editors are bombarded with editing tasks—one study estimates three new edits every second—they cannot investigate every entry thoroughly. They are constrained by what can be discovered readily—by Google. But most human knowledge, probably, still lies outside of Google’s reach.

The passage reminds me of an exchange between Sergey Brin and Ken Auletta recalled by the latter on the Leonard Lopate show. Brin asked Auletta why he didn’t just self-publish his book on the web, doing an end-run around publishers. “Who would pay my advance?,” Auletta asked. “How could I support myself for the 18 months it takes to write the book?”

While Brin saw the world of publishing as too-confining, Auletta was in effect opting out of another form of discipline—information location tools that highlight the most accessible content. One key question now is whether the free-cology of Google, Wikipedia, and unpaywalled sources will become its own world of knowledge, creating its own reality unmoored to traditional journalism or books. Auletta might worry that such a dynamic could unleash a Gresham’s Law scenario for knowledge, where the cheapest-to-produce drives out quality content like his. But hard-pressed netizens may well respond: “How am I going to pay for books like yours? How can I support myself when I need to pay $27.95 for every book I want to read?”

X-Posted: Madisonian.


The Yale Law Journal Online: Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech



The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP.  Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.


Danger Will Robinson: Google Book Deal Is at DEFCON 2

The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.


FTC and Blogger Disclosure Rules

As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.


Update to the Tale of the Ph.D. Rapper

About a week ago, the New York Daily News reported a happy tale of Dr. Roxanne Shante, a former rapper who won a legal battle to have her record label pay for a Ph.D. education at Cornell University. Deven blogged briefly about the story here at Concurring Opinions, and the blogosphere was generally pleased by the notion of a young artist winning her fight for an education against a corporate bully.  But now Slate is reporting that Shante by her own admission never received a Ph.D. from Cornell and that many other important elements of the story are untrue. Too bad. It was a great story but apparently one full of factual inaccuracies that undercut it completely.


Saved By A Music Contract? Artist Invokes Clause and Gets Her PhD

As anyone who follows the music industry should know, the history of record labels, artists, and exploitation is long and a bit dirty. K.J. Greene has argued that the problems of race and music business practices should be part of the reparations debate. Today, however, it appears that a pioneer of hip-hop, Dr. Roxanne Shante, has her PhD from Cornell because of her recording contract. Now before one thinks that all was close and loving, know that Dr. Shante had to fight with the record label for quite some time before it honored the clause which stated that the label would fund her education for life. Luckily the Dean at Maymount Manhattan College allowed then Ms. Shante to attend the college while the bills were still sent to Warner Music and being debated by the company. Although there is a silver lining of sorts here, it is sad that Dr. Shante sold more than 250,000 records, saw little of the money she generated for the label, and left the business because “‘Everybody was cheating with the contracts, stealing and telling lies,’ …And to find out that I was just a commodity was heartbreaking.'”

As general take away, it seems that any corporate entity that is taking on a young talent in sports, music, or any other field, ought to consider such a clause as a good thing. Agents should at least insist on it. The odds are already stacked against many of these talents. In some cases they are giving up education time to help a sports program. In others, like Dr. Shante’s, the talent may “be a teenage mom, come from the projects, and be raised by a single parent, so as the article about her put it, the clause may be “a throwaway” because no thought it would come to anything. In other words, I hope these clauses persist and even appear more often. It seems quite fair and an oddly (or really unfortunately) low-risk bet for labels and other industry players in these deals.

You can go here to hear the entire song “Roxanne’s Revenge.” (imeem only had the 30 second clip for embedding).