Privacy Notes Maynard PDF

Preview

Summary

privacy notes...

Description

Right of Privacy The give-and-take in the tension between individual and society “…But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.” Roman Law From way back, it was thought that one: Cannot bring attention to another on a public road Cannot shout to gather a crowd Cannot follow an honest woman or child Privacy was considered a “property” right Semayne’s case One of the oldest English cases to be reported, the first legal maxim applied that “the house of every one is him as his castle and fortress, as well as his defense against injury and violence as for his repose.” Today we find Semayne’s maxim recognizable in our phrase, “every man’s home is his castle.”

Manola v. Stevens 1890 Manola won First case in America where the right to privacy idea was used in an attempt to persuade the court that such a lawful right existed. Marion Manola complained that while she was performing on stage, without her consent, the stage manager arranged for a photographer to take her picture. The old-fashioned magnesium flash created quite a stir, interrupting the act, and causing a scene. It was later discovered that, indeed, the stage manager, Stevens, set out to create a publicity stunt—at, Marion rightly thought, Marion’s expense. While the court (Supreme Court of New York, 1890) permanently enjoined the display of the unauthorized photo, they steered clear of labeling this a “right of privacy.”

Roberson v. Rochester Folding Box 1902 Roberson lost Abigail Roberson was a teenager in Rochester, NY, who had her picture taken in a photography studio. Someone (presumably the photographer) gave the picture without her consent to the Franklin Mills Flour Company, which used it on 25,000 advertising posters that were displayed all over Rochester in 1901. The ads featured Roberson’s photograph along with the pun “flour of the family.” Roberson was mortified when she saw her picture all over town, and sued the company under a “right of privacy” theory (Warren and Brandeis). She claimed that the “scoffs and jeers” of people who had recognized her caused her a “severe nervous shock” that confined her to bed. 1

The New York Court of Appeals denied her claim on the ground that it lacked the power to create a new “right of privacy.” However, after a popular outcry against the decision, the New York legislature passed a law allowing people to sue when, like Abigail Roberson, their “name, portrait, or picture” had been used without consent “for purposes of trade.”

Pavesich v. New England Life Insurance 1905 Pavesich won The first court case to specifically recognize the right to privacy was Pavesich v. New England Life Ins. (1905) His picure was published in a life insurance company’s ad that had run in the Atlanta Constitution. It was a side-by-side execution, where Pavesich was the “good” person who bought life insurance, whereas the other person did not. So Pavesich wasn’t presented in a “bad” light. But, the photo was used without Mr. Pavesich’s knowledge or consent. The statement (caption) under his photo was also false. He never had a life insurance policy with the company. Pavesich asked for $25,000 in damages. He got it. In essance, the court allowed Pavesich to recover damages for injured feelings. The Pavesich case established for the first time the precedent for future actions under a right of privacy, and since Pavesich (1905) every state in one form or another has developed a right of privacy. The U.S. Supreme Court, in fact, established that the right of privacy stems from the specific guarantees in the Bill of Rights. All right of privacy laws protect against one of four forms of violations    

Unauthorized use of another person’s name or likeness for another’s benefit Invasion into an individual’s seclusion Public disclosure of embarrassing private facts Presentation of an individual in a false light

WAIVER or RELEASE The advertiser must get written permission to use the likeness of a person in a commercial, or ad. Even to use his or her name in the ad.

Allstate Insurance story Leo Burnett (Failure to secure a waiver) Allstate was a Leo Burnett client. To dramatize how the insurance carrier comes to the rescue when home owners are in trouble, a commercial was created showing two suburban homes, side by side. Over the announcers words, the home on the right burst into flames. Unfortunately, according to the copy, the homeowner had no fire insurance. Whereas, however, the home on the left was covered with Allstate’s fire protection policy. And so the lesson is that the viewer also should go with Allstate. So far, no problem. HOWEVER. The two homes filmed for the commercial were homes in one of Leo Burnett’s commercial creator’s neighborhoods. (Of course the filmed “fire” in the home on the right was a special effect, and not a real fire.) The home on the left, in fact, was the Leo Burnett employee’s house. The other house, his immediate neighbor’s. 2

When the neighbor saw the commercial on television, he recognized his house up there on the screen—the house that was burning up (fictiously) before his very eyes. He then filed a lawsuit against Burnett for “psychological pain and suffering, etc.” As told to me, the lawsuit was quickly settled out of court. An untold sum of money changed hands, and Burnett was, to put mildly, unhappy about its loss. THE LESSON: Prior to filming, secure a waiver from the home owner, a RELEASE, that allows the commercial likeness and use of his residence for advertising purposes. So it’s not just a “person” that needs a waiver, it can be some other form of property.

Harris Bank story Leo Burnett (Following the correct procedures) Harris Bank’s campaign featured Leo, an animated large sized plush toy lion. Leo appeared at the end of each commercial, pointing to the camera and saying “(Name), youuu should have a Harris Banker.” So, for example, Leo would say “John Anderson, youuu should have a Harris Banker.” The Account people for Harris came to me and asked if they could use my name in this commercial campaign. After all, I was an employee of Burnett, and since of course I wanted to do the right thing, I said “yes.” So they handed me a release form. The form stipulated that I permitted Harris to use my name and that I would not later claim any damages and thus demand recompense. For me doing this, the “consideration” (the legal term for what I would get in exchange) would be one dollar. I signed the release form (the waiver) they handed me $1 and that was that. In addition to the agency and thus the client protecting themselves from any claims I might have at a later date, there was another good reason for going through this legal procedure. The reason is this: Another “Michael Maynard” may be out there and when this Michael heard Leo say “Michael Maynard, youuu should have a Harris Banker,” he might try to sue on the grounds that his name was being used for commercial purposes without his consent. Were this to occur, the account team at Burnett would brandish the waiver that I signed, dramatically point to my signature, and instruct this other Michael, “No, no, you see, when Leo said the name in the Harris Bank television commercial he meant this Michael Maynard.”

3...