Privacy, Newsworthiness, Judicial Deference to the Press, and Omniveillance

December 2nd, 2009

Check out this interesting article, titled Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press (H/T Concurring Opinions):

Courts, John Marshall famously declared, must “say what the law is.” Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists’ own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive evidence that the topic was of legitimate public interest and therefore beyond the control of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically, an emerging tool used by courts to police news outlets is journalists’ own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while, in fact, aggressively scrutinizing editorial judgments.

This is a point I discussed in Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image Over the Internet, 49 SANTA CLARA. L. REV. 313 (2009), but in a different context. Because of modern technology’s ability to cheaply and efficiently capture almost infinite amounts of information without regard to newsworthiness, the deference courts granted to the press becomes less deserving.

Traditionally, when courts deferred to an editor to help determine whether reproduction was appropriate,the judge could reasonably rely on the economics of the media as a check on what could be published and as a limitation on invasions of privacy.[1] Thus, the editor would publish some stories at the opportunity cost of not publishing others. Mundane human acts would never be published at the opportunity cost of exciting human acts, such as car accidents or a celebrity happening. The editor’s selection implicitly attaches a value to anything that is published, and provides a reliable basis for judges to rely on.

However, with omniveillance, no such editorial board exists.Today, high-capacity hard drives and blazing-fast Internet servers break free content providers from the traditional chains of columns in a newspaper or seconds in a television spot. The essence of omniveillance— instantaneous worldwide distribution, indefinite retention, and ease of access—rewards content providers for posting the maximum amount of information possible, without any restrictions. Thus, such deference to the judgment of the press is untenable.

[1] See, e.g., Heath v. Playboy Enter’s, Inc., 732 F. Supp. 1145, 1149 (S.D. Fla. 1990) (“What is newsworthy is primarily a function of the publisher, not the courts.”); Clay Calvert, And You Call Yourself a Journalist?: Wrestling with a Definition of “Journalist” in the Law, 103 DICK. L. REV. 411, 437 (1999) (noting that judges applying the “Leave-it-to-the-Press Model” grant deference to the decisions of editors to determine what is newsworthy). But see Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir. 1975) (imposing the high standard that news “ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake” based on the community’s standards rather than adopting a leave-it-to-the- press approach); Sipple v. Chronicle Publ’g Co., 201 Cal. Rptr. 665, 670 (Ct. App. 1984) (“[T]he paramount test of newsworthiness is whether the matter is of legitimate public interest which in turn must be determined according to the community mores.”).