In the newsroom context, the principal defense to invasion of privacy will usually be "newsworthiness." However, it should be recognized that this will not be a defense to either intrusion or the falsity issue in false-light publicity cases. The best defense in all categories of privacy, when it is available, is consent.
1. What Is the Scope of Consent Given? Consent may be either express or implied from the circumstances. For consent to be effective as a defense, however, the manner of publication must not exceed the scope of consent given. Thus, consent of a news subject to a discussion of his or her private life will not be effective as a defense to allegations that the facts were presented in a false light. (Compare this to the rule in libel law; see SECTION B: NEWSGATHERING - (F) A NOTE ON CONSENT)
Likewise, consent to talk to a reporter about private matters may not be effective as consent to publication if the subject is not aware of the reporter's identity. A harder question, still undecided, is whether consent to talk to a reporter may be construed as implied consent to publication in all cases. Proceeding without that clear understanding may carry some risk.
2. May Consent Be Withdrawn? A news subject who agrees to talk to a reporter about private matters and then changes his or her mind before publication may effectively withdraw consent by that decision. While this does not automatically bar publication of private matters (where, for example, they are clearly within the defense of "newsworthiness"), it does negate the initial defense of consent.
3. Consent for Photographs: Common practice is to obtain written consent for subjects of photographs, although this practice is seldom followed for subjects of interviews. The difference stems from the fact that the interviewed subject's own disclosure of private facts to the reporter reinforces evidence of the subject's consent.
A photographic subject, on the other hand, may argue that he or she was not even aware the photograph was being taken and therefore did not consent, either expressly or implicitly. Written consent for photographs is therefore sound practice, although it, too, may be withdrawn before publication unless a binding contract has been formed.
A very simple non-contractual consent form is included as Appendix VII. It is intended to cover only routine news photographs and may not be adequate for major photo stories or particularly sensitive subjects. When photo projects are planned and time allows, it is always good practice to discuss the circumstances with the attorney and tailor consent forms to the situation.
4. Implied Consent In Public Places: The general rule is that there is implied consent to publicity concerning matters which a person voluntarily discloses in a public place. The Washington court has interpreted this to include television photography through a store window. Again, however, such implied consent does not extend to presentation of those matters in a false light.
There may also be a question as to whether the disclosure was truly "public" and "voluntary." The more potentially embarrassing the facts, the less reliance should be placed on this theory of implied consent.
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