MMC 4200 Exam 2 – Flashcards

Protected by US Constitution -- the right to be let alone from unwarranted government intrusion Origin: Harvard Law Review in 1890 Fourth Amendment recognizes core right to be left alone

Right to be free from unwarranted publicity

1. Publication of private facts 2. Intrusion 3. False Light 4. Commercialization/Appropriation

Publishers, editors, reporters, photographers, advertisers, PR, private individuals

Truth, Opinion and Absolute/Qualified Privileges

Something must be false for it to be libel

Protected by first amendment. Opinion is something that cannot be proven correct or incorrect. Since it cannot be proven false and falsity is required for libel, opinion is a defense. Saying "in my opinion" does not make something an opinion

Protect the speaker of a defamatory message regardless of the accuracy or motives. 1. Spoken and written words of public officials acting in their official capacity. 2. Media defaming a person who consented to being defamed 3. Broadcasters can air the false defamatory speech of political candidates Doctors/Lawyers have absolute privilege with their clients.

When reporters have to meet other requirements; have a qualified privilege to report on official activities "Fair and accurate" privilege Reporters are protected who report defamatory statements made in official proceedings so long as the stories are fair (unbiased) and accurate.

Two years

Plaintiff must prove: 1. Private fact 2. Publication (wide-spread dissemination) 3. Highly offensive to a reasonable person 4. Not of legit concern to the public Person must have reasonable expectation of privacy

Shame, humiliation, mental anguish

First Amendment - protects most truthful information lawfully acquired Newsworthiness Consent Matters of public concern/already in the public domain

Media can publish truthful information if it is lawfully acquired and involves an issue of public importance

Highly offensive physical, electronic, mechanical invasion of another's solitude or seclusion Person has a reasonable expectation of privacy

1. Undercover reporting 2. Secret recordings/hidden cameras 3. Laws prohibiting taping of certain conversations

Secret recording is illegal in places people can expect a certain level of privacy What can be seen in public/quasi-public places is fair game Harassment/overzealous surveillance not allowed whatsoever

Citizens can use audio/video to record in public places without first seeking permission even with law enforcement personal on duty

Sometimes not offensive if the person recording the conversation is a participant (participant monitoring) Revealing something for public benefit Public/quasi-public places Police officers

May be intrusion if used in a private place Participant monitoring sometimes allowed

Illegal to record phone conversations unless both parties are aware and give consent 3rd degree felony, can get up to 5 years in prison

Entering private property or inviting someone to go on private property without consent of owner or possessor Can include physical property and technology (phone, email, etc.)

If a person commits an act which is prohibited and punished as a crime, he cannot escape responsibility by showing that it was the custom in a particular locality to do the act. FL recognizes this defense -- very common that journalists enter with public officials Ride-along

Courts rule that officials violate 4th Amendment rights by inviting journalists to accompany them into private places while executing warrants

Appearance of legal power to act Journalists who accompany officials act under color of law

Four factors that a plaintiff must prove to win an IIED case 1. The defendant's conduct was intentional or reckless. 2. The defendant's conduct was extreme or outrageous. 3. The defendant's conduct caused the plaintiff emotional distress. 4. The emotional distress was severe.

Dissemination of highly offensive false publicity about someone with knowledge of or reckless disregard for the falsity Distortion or fictionalization Unlike libel, sue for embarrassment not injury to reputation

If the case involves public figures, public officials or public interest.

1. Plaintiff not identified in publication/ publication is true 2. May claim plaintiff must prove fault 3. Would not sue for lost reputation, but seeking compensation

FL does not recognize false light - duplicates existing torts (libel)

Article headline claimed the man "shot and killed" his wife 2 sentences later the story said that the authorities determined it a hunting accident Paper slanted the facts, headline made Anderson look like a murderer FL Supreme Court refused to recognize false light

Unauthorized commercial use of another's name or likeness. Protect's a person's property right (right of publicity) includes look-alikes and sound-alikes Protects privacy rights (a person can say they are ashamed or humiliated for using their likeness) Plaintiff is going to be claiming a similar injury as when talking about publication of a private fact Tort generally going to die with the plaintiff

Newsworthiness Consent First Amendment

Private: occasionally can file suits against media but SC has not eliminated such suits by public figures/officials Public: for a time, public figures viewed intentional infliction as alternative to libel and false light because the person claiming for emotional distress did not have to prove media published with malice

Participant monitoring: at least one party of a conversation is aware of recorder/transmitter

Federal law permits one party in conversation to record FL law requires consent of both parties

They may... - Misrepresent the purpose of the interview with a reporter - Fail to identify themselves a reporter - Unnecessarily disrupt a business

When someone emulates or copies what they have seen or read When mimics of media harm themselves or others Courts tend to reject incitement -- must be proven to be sued

British crown created a method of censorship after Gutenberg invented the printing press Constitution -- protected before adoption of the First Amendment 1976 Copyright Act

Original works of authorship fixed in any tangible medium of expression NOT ideas Original + tangible, happens as soon as it is created/perceived

Works of authorship -- creations that are expressive in nature (Literary, Musical, Dramatic, etc.) Expressions of ideas, not ideas.

If there is only one way to state it, it is not copyrightable.

For works created after 1977: - Individual author = life of author + 70 years - Company -- 120 years from date of creation OR 95 years from date of publication, whichever is shorter

Symbol, year, name

To register, put notice on work, register and deposit copies with Copyright Office in Washington D.C. and you pay for it.

Unregistered works are protected, but authors must register before they can sue for infringement and actual damages. Registered owners can sue for statutory damages with no proof of financial damage required.

Sue If someone violates the rights of a copyright owner, the owner is entitled to file a lawsuit asking for: 1. Orders to prevent further violations 2. Award money damages 3. Award attorney fees

Author creates work independently with a small amount of intellectual effort Not simply reproducing existing material Collective work and derivative work count

Bundle of rights Rights to: reproduce, distribute work, create derivative works, publicly perform and display works, power to deny, etc.

"Author" who owns copyright is the party who hires/employs/commissions freelancer to create work. 1. Work prepared by employee within scope of his/her employment 2. Work specifically ordered or commissioned that falls within 1 of 9 specified categories

Not considered a company employee Retains copyright unless signed a waiver Doing work specifically commissioned for a special order by the employer

1. Works are original 2. Own valid copyright 3. Infringer had access to copyrighted work 4. Alleged copy is substantially similar to original

Doctrine of fair use: permits limited copying for criticism, commentary, teaching, etc. Balances competing social interests of encouraging creativity by granting authors exclusive rights while allowing limited copying for comment/criticism.

1. Purpose and character of the use 2. Nature of copyrighted work 3. Amount and substantiality of the portion copied 4. Effect of copying on the market for the copyrighted work

Parodies distort or closely imitate another work to make fun of the original. Needs to sound similar to original or be reminiscent of original to make its point. Copyright violation is found when new becomes substitute for the original.

Protects ISP's from liability for monetary damages for infringement when they merely transmit/temporarily store digital information for their subscribers Criminalizes acts that disable/circumvent technology designed to prevent illegal copying

1. Not required to monitor their networks for infringers (must take down if told) 2. Cannot play dumb about infringing activity on their system 3. Can be held liable for direct, contributory or vicarious infringement

People can just post copyrighted material, no privacy, hosting and profiting from postings.

Word, name, symbol, etc. a company uses to identify itself as the maker of a product Indicates source of goods Represents a portion of the "goodwill" of a company Must be inherently distinctive

Trademark: protected by law of unfair competition, copyright thinks these symbols are too trivial Trademark: do not depend on originality, invention or discovery Trademark: (R) Copyright (C) Trademarks protected forever, copyright limited

To protect consumers from being misled about the source of goods/services Reduce time and effort consumers expend to buy products

Protects business signs, titles, names and slogans from theft and misleading uses

- Misappropriating the work of others - Using similar titles in a misleading way - Stealing trade secrets - False advertising

UC protects IP not protected by copyright, including trademarks

Must show: 1. Purpose 2. Registration 3. Likelihood of confusion 4. First Amendment protections 5. Dilution 6. Abandonment

In deciding trademark infringement, courts consider: 1. Strength of marks 2. Similarity of product's appearance 3. Meaning of marks 4. Kinds of goods in question 5. Defendant's intention in using the trademark

When a mark's value has been tarnished / diluted Trademark becoming associated with an idea that cheapens the trademark

Mark deceives/confuses the public

The rights of the trademark owner must be balanced against the interest of free speech when the authorized use is for expressive purposes Borrowing a trademark is protected to: 1. Gather news 2. Create parodies 3. Other fair use purposes

Injunctions Monetary/statutory damages Criminal penalties -- jail time

In 1942 the SC placed advertising outside the First Amendment protection (V v. C) 1964 SC ruled that political speech was protected even if paid for (NYT v. S) 1976 SC ruled that "purely" commercial advertising enjoys constitutional protection (VSBP v. VCCC)

Advertising has a lower status Protected to a lesser degree than political expression (second-class form of expression) Falsehood is protected in political speech but ads can be banned for being false or misleading.

Central Hudson Test -- 4 parts

No protection for false or deceptive ads Can be completely blocked or taken down

SC has permitted regulations on commercial speech that would not be tolerated on political speech when it is misleading or false/deceptive

Falsehood: political speech can have considerable falsehood but commercial speech can be banned if false in any way Prior restraint is unconstitutional for political speech but not for commercial speech Warnings are not required for political speech but commercial speech might be required to air warnings, disclaimers, etc. to ensure not misleading

Hardiness -- more regulated because they can withstand regulation Verifiability -- ads are based on factual statements not opinions

4-part test to determine constitutionality of regulations on commercial speech

1. Is it commercial speech? 2. Is it of legit or substantial government interest? 3. Is it in direct advancement of the gov. regulatory interest? 4. Is the regulation narrowly drawn to advance state interest? (narrowly tailored)

Federal Trade Commission Rulings define the scope of fed. regulation and determine standards for state and industry regulatory bodies Main enforcer of truth in advertising -- main goal is to protect consumers from misleading market practices

Federal Trade Commission Act of 1914 Prohibits unfair methods of competition and unfair/deceptive ads affecting commerce Gives FTC authority over advertising and monopolistic activities

Require advertisers to substantiate their claims Punish advertisers who engage in unfair competition or deceptive practices

An act that causes injury to consumers that they couldn't avoid and that isn't outweighed by the benefits

An ad that is likely to mislead a reasonable consumer with a material statement or omission

Total lies about your product

Imply that your product can do something it can't by showing it Reasonable basis, proof, demonstration, no qualification, ineffective qualification, celebrity endorsements, etc.

All 50 states have legislation about it States FTC FDA Citizens

Citizens can make a formal complaint against advertisers and broadcasters do not comply with the rules FTC issues cease and desist and investigates

Protect competitors who can be harmed by misleading advertising or practices by competing businesses Competitor remedy

Racketeering Influenced and Corrupt Organizations Act Consumer remedy Allows consumers to sue for deceptive advertising that they can't sue for under Lanham

Identity theft Search engines collect and store information Consumers complain FTC issues self-regulation principles Facebook changes privacy policies and changes them back due to complaints

Before shares are offered and while they are being traded Mandated disclosure includes prospectuses before a stock is offered for sale, periodic reports after trading begins

Securities Exchange Commission Power to: register, regulate and oversee brokerage firms, transfer agents and clearing agents as well as nation's securities and stock exchanges Federal government

Makes it unlawful for a corporation or its agents to be manipulative or deceptive in connection with the purchase of sales or securities (insider trading) 10b-5 illegal to publish, publicize or circulate any notice about a security without revealing payments received

Giving someone on the "inside" access to nonpublic corporate information. They buy stocks and trade out based on insider info

Tipping: passing nonpublic material onto friends or brokers so they can trade Tipper: person who passes on the nonpublic material to a friend Tippee: person who receives insider tip and makes a securities trade based on that info

Libel Defense High school wrestling coach's team was in a fight. Reporter wrote the coach had lied under oath, coach sues. Turns out he did lie and it could be proven. Why: Opinions are not opinions if they can be proven true or false. Ollman Test for opinion came from this.

Privacy What: Secretly recorded conversation between teachers upset about pay who were going to "blow something up." Reporters received it anonymously Why: Free to publish if it is truthful, obtained legally and is a matter of pubic significance and the government can't show compelling interest

Privacy Girl was raped and murdered, her name was never broadcasted initially. Later on a reporter gets her name from court documents at the hearing. SC sided with reporter. Why: Established nearly complete First Amendment protection for media to report info from official records available in open court.

Privacy -- intrusion Reporters went to an eye doctor's public office pretending to be patients and secretly recorded him (participant monitoring). Doctor said he had a qualified privilege (doctor-patient) but that protects the patient not the doctor. Why: Not trespassing because it was in a public place even though they were misleading

Privacy Newspaper violated state statute and own policy by publishing full name of rape victim who was threatened because of it. SC sided with newspaper because the punishment was not narrowly tailored enough. Why: Even though sided with newspaper here, SC ruled that a newspaper could be punished for publishing lawfully obtained truthful public interest etc. if the govm't can prove the punishment is NARROWLY TAILORED to a state interest (protecting rape victims)

Privacy Globe printed the name and info of a rape victim. Info had been obtained lawfully and four papers had already identified the victim. Why: FL Supreme Court agreed that the law was unconstitutional because it was over broad and published media (like in BJF)

Privacy -- Intrusion and Trespass ABC sent reporters posed as Food Lion employees to do a behind the scenes video about their poor meat handling quality (Bad Beef, Pink Sludge) ABC had trespassed by not disclosing what they were there for and posing as employees

Privacy Naked woman running out of house with police officers after her husband held her hostage and committed suicide in front of her. Was only holding a dish towel in front of her and was photographed by a publisher. Why: It was public, a newsworthy event and she was "covered" so they had a right to print.

Privacy Similar to Desnick V. ABC Guy posing as a doctor had a practice out of his home. Reporters went in and recorded him. Why: Reporters were found responsible for intrusion because it was in his home where there was a "reasonable expectation of privacy."

Privacy (IIED) Alcohol printed an ad about preacher Jerry Falwell's first time having sex with his mother and made it seem like it was a real interview. Why: It was so outrageous it couldn't be true, said the SC. Contained constitutionally protected ideas and opinions of a public figure, Hustler was not found responsible.

Privacy (appropriation) Human cannonball. TV station showed his entire :15 act. Why: You can't broadcast someone's whole act -- if it damages their market then it isn't protected. Even though it was a small amount it was enough.

Privacy -- False Light Bridge collapsed killing a woman's husband. Reporter went to interview her, she wasn't home. He made up a story saying she was and that she was cold and distant to her husband. Why: Successful false light case -- reporter placed her in a false light with NYT actual malice

Privacy -- Trespassing Girl killed in fire, a reporter was on a ride along with fire officials. Mother wasn't home so the reporter went inside with fire officials. FL SC said it wasn't trespassing (custom and usage) in Florida it is implied consent especially with disasters

Privacy Broadway play created around a true story of a family being held hostage. LIFE magazine took the actors to the house and took exaggerated shots. SC: Family had to prove NYT actual malice because it was a newsworthy event.

Privacy -- IIED Soldier of Fortune magazine published an ad that resulted in contract killing. Magazine found responsible for negligent posting and the death from that posting. Why: Have legal duty to refrain from publishing things that have a clearly identified unreasonable risk of harm.

Copyright Small town phone directory sues larger phone directory after the bigger one borrowed names and addresses. Sued for copyright infringement. Why: Creativity and originality needed for copyright, not just effort alone-- names and addresses are not copyrightable.

Copyright Nation political magazine printed 300-400 words of Henry Ford's then-unpublished memoirs, the "heart" of the memoirs. Why: Was a copyright violation because it 1) scooped the competition and 2) was a substantial portion, even if it wasn't a large portion. Unpublished materials get more protection

Copyright-- Pretty Woman A rap group made a parody of "Pretty Woman" using the same melody and similar lyrics but clearly making fun of the song. Transformative. Why: Parodies are protected under fair use. -- they need to reference the original in order for the audience to make the connection. It has to make fun of the original though, not be satire (making fun of something else).

Copyright Kinko's was making copies of chapters of textbooks and articles and putting them into student packs, claiming an "educational purpose" under fair use allowed them to do so. Why: Infringed on the market for publishers and wasn't really educational -- it was educational in the hands of students but commercial in the hands of employees.

Commercial speech 1942 Man was distributing handbills about a tour of a Navy boat. Officials stopped him from doing that. He added a "political" protest message to the back and said they were curbing his political speech. Why: They could stop distribution of flyers because the flyers were "purely commercial" that fell outside of constitutional protection. Advertising = no protection

Commercial speech Pharmacists were trying to advertise prices. Ads received constitutional protection. Limited, but protected.

Commercial speech Court struck down a state regulation that prohibited electric companies from running any ads whatsoever because blocking them from having any ads was unconstitutional. The four-part test was created from this.

Commercial speech Nike was sued by Kasky for unfair trade practice and false advertising issued statements in response to the allegation of sweatshops. Nike settles, SCOTUS refuses to hear case. Commercial speech and misleading information, NOT protected.

Commercial speech Texas Gulf issued a materially deceptive press release to dampen rumors of a major copper discovery. Based on this false info people sold out, only to find later that the company had just made so much money. Why: You can't mislead buyers or investors. This was insider trading and misleading.

Supreme Court created 4-pt test to determine constitutionality of regulations on commercial speech