Part Three: Respect, Privacy and Freedom from Harm
Legal understanding of privacy
The U.S. Constitution does not expressly delineate a right to privacy. What constitutional scholars can find that might indicate an intention to grant citizens privacy stems from elements of a number of amendments in the Bill of Rights. The First Amendment grants the right to privacy in your beliefs, the Third Amendment grants you the right to privacy on your home—at least from housing soldiers there, the Fourth Amendment protects the privacy of your possessions and your body from illegal searches and seizures, while the Fifth Amendment grants you the right to privacy of your personal information so that it can’t be compelled from you in court.
Aside from these specific rights, the courts over the years have ruled that the 14th Amendment gives a number of important rights to privacy. Section one of the amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This amendment has been the basis for some of the biggest civil rights decisions ever, from Brown v. Board of Education, which ended Jim Crow, to Roe v. Wade, which legalized abortion, to Obergefell v. Hodges, which established marriage equality.
This equal protection clause guarantees have been the basis to stop government intrusion into the private lives of individuals. But rights compete when it comes to the actions of private individuals. The rights guaranteed by the First Amendment to allow a free press come in conflict with individuals’ apparent right to privacy. Courts and scholars have focused on four areas of conflict: court proceedings, false light, intrusion and private facts. Previous sections of this guide have focused on the first two of these areas, so this section focuses primarily on the latter two—intrusion and private facts.
From a filmmaking point of view, intrusion can take place when a filmmaker invades a person’s expected privacy, whether or not the information gathered is ever published or shown publicly. All the same, guarantees for a journalist (or filmmakers) First Amendment rights are strong. Courts have tried to balance these rights with mixed results.
At the state level, the conflict becomes even more complicated. A state-by-state guide is linked below.
Hidden cameras and microphones
It is one thing when a filmmaker’s camera and microphone are free for all the see and there’s no secret attempt to get footage. When a filmmaker decides to hide the camera or microphone, certain laws come into play to minimize the risk of intrusion. The more specific laws have to do with recording audio when some of the parties being recorded are unaware of the recording. One of the first thing for a filmmaker to determine is the state law regarding party consent of recording. One-party recording states allow secret recordings where only one party being recorded needs to be aware of the recording. That means since the filmmaker, of course, will be aware of the recording, it is legal to record another party or parties without their knowledge. Federal law allows one-party recording in most cases. Two-party (or all-party) recording states require everyone being recorded needs to be aware the recording is being made. That essential eliminates the possibility of secret recording in those states. A list of state laws is in the links below.
The law is not specific in terms of the public release of secretly-recorded audio. The FCC specifically requires that recorded (or live) telephone calls can be broadcast only if the parties being recorded consent to being broadcast. There are no specific laws related to the public exhibition of secret recordings, meaning the recorded party can attempt to seek civil recourse if the recordings are made public.
Hidden camera recordings have much less specific laws attached, other than any audio recorded at the time of the film or video recording falls under the one-party/two-party limits listed above. New technology allowing nearly anyone to record secret video using “nanny cams” or other tiny cameras has drawn the attention of lawmakers to this topic. Thirteen states now prohibit hidden cameras used to record in private places. The states generally define private places as those where a reasonable person can expect to be save from unauthorized surveillance. A handful of other states prohibit hidden cameras in specific places, like locker rooms or restrooms where people have the presumption that they can remove some or all of their clothing in privacy.
Entering private property
The law does not give filmmakers or journalists any special rights to enter private property. The laws regarding trespassing apply to all. As with many of the elements of this guide, the laws vary by state. But in general, the rules regarding trespassing follow the same pattern in most states.
A filmmaker may always enter private property when she has the consent of the owner or an authorized party. There are two types of consent, express and implied. Express consent is present when the owner or authorized party gives written or verbal permission to enter the property. It is the strongest form of consent legally. Implied consent exists when permission appears to be present through set custom, actions of the landowner or if the landowner is not present but an emergency exists for which someone must enter the property.
Trespassing occurs when someone intentionally enters a property for which the trespasser has knowledge that no consent exists. In general, someone cannot accidentally trespass. It must be a conscious act. Landowners can claim that knowledge exists if the land is posted “No Trespassing” or if the land is fenced. Even after giving permission, a landowner can revoke it by telling a visitor she must leave. At that point, the visitor must leave the property or would be guilt of trespassing. Private property were people are allowed to come and go without asking permission are considered to give implied consent. Shopping malls, the sidewalk going to the front door of a private home or the interior of a place of business are examples of this sort of property. For any of these properties, if the owner or an authorized person tells a visitor to leave, that person must leave or be guilty of trespassing.
Trespassing is usually considered a criminal act, enforceable by local law enforcement and courts. There does exist the possibility of civil trespass in which a landowner sues for damages that occurred during the trespass.
For all of these issues of trespass, the fact that a filmmaker will use footage shot there has no bearing on whether trespassing has been committed. If shooting on private property under the impression permission exists to be there, if a filmmaker suddenly finds that permission revoked, any footage obtained before the revocation of permission is permissible to be used. Once permission is revoked, the filmmaker should not continue to shoot.
One special case that filmmakers and journalists can face is if they are following subject who then trespass onto private property. The filmmaker is then faced with the decision whether to trespass to follow the subjects. The law does not give filmmakers or journalists a right to trespass just to follow a story. If the filmmaker decides to trespass, she can try to make the case after the fact that there was no harm done by her trespassing and that the filmmaking purpose of the trespass outweighed the crime.
Accompanying police or other officials onto private property
A special case for access to private property may exist when a filmmaker or journalist is working with police, fire or other government officials. In cases where those officials enter private property and the filmmaker is accompanying them, the case may exist to enter the property without seeking permission. If the emergency team members give consent for the filmmaker to accompany them, it is unlikely the filmmaker could face criminal trespass charges. But the emergency team permission does not necessarily protect the filmmaker from civil trespass action by the property owner later.
Public disclosure of private facts
The First Amendment and prior case law protects filmmakers and journalists from most libel claims if the materials published meets the tests listed in the earlier section on libel. But subjects who feel wronged by the release of their private facts can bring suit for harm in that arena.
Suits of this time rely on four elements: the public disclosure of information, that the facts are indeed private, that what is published would be considered offense by a reasonable person and that the facts disclosed are not newsworthy.
By public disclosure, the law recognizes that the fact must have been distributed in some way to the public at large. Filmmakers screening a film in public, broadcasting it on television, releasing it on DVD or streaming it on the internet would meet the public disclosure requirement. Material gathered for a film but not appearing in a publicly-released cut would not meet this standard.
In general, private facts are defined as specific details of a person’s private life that are not generally known to the public. This can range from personal sexual habits to medical conditions to bank account numbers. Information like this is not considered private (for the sake of a lawsuit) if it has already been made public elsewhere or if it is widely known.
In terms of offensiveness, the courts have used the “reasonable person” test to determine whether the released information would be offensive to people in general and not just to the person about whom the information was released. This test clearly falls on the shoulders of the judge or jury in a case and is difficult to anticipate in some cases.
Finally, the newsworthiness standard is often an aid to filmmakers and journalists. If the information released—no matter how private—has a legitimate public interest, then it provides a strong defense should someone bring a case of public disclosure against a filmmaker. In general, this defense is strongest if the information bears directly on an important issue and is timely to the publication of the material.
Additional defenses come from two areas: consent and public information. If a person consents to the release of the information, that person cannot bring a public disclosure case later. This is a strong argument for releases obtained before or during the production of a film. Additionally, if the information released comes from a public record, the courts have ruled a constitutional right to publish without fear of a public disclosure suit.
State laws regulate the definition of appropriation, but it is generally held to be the use of someone’s name or likeness without permission for the purposes of trade. Most commonly invoked in cases involving advertising, appropriation can sometimes turn on filmmakers and journalists. The courts have given protections to journalists and others for using the name or likeness in cases deemed to be newsworthy. Filmmakers can use this defense by claiming their films are addressing newsworthy issues in society. Creative works are also protected in most states, so filmmakers can assert that claim as well.
Consent is also a defense against appropriation claims. Using a release form when filming will provide a filmmaker with a consent defense in the case of an appropriation claim.
The Health Insurance Portability and Accountability Act was passed by Congress and signed into law in 1996. The law’s purpose was mainly to safeguard consumers who were changing jobs or part of large group plans to guarantee more affordable health insurance. But one section of the law dealing with the privacy of a person’s health information had far-reaching impact on the news media. The Privacy Rule of the law is often misunderstood by the public and even medical professionals. Some wrongly believe the rule prohibits filmmakers, journalists and others from publishing medical information. In fact, the law expressly regulates what “covered entities” can release in terms of private health information (PHI). The covered entities are health plans, health care clearinghouses, health care providers and the business associates of any of the aforementioned entities. The law does not expressly prohibit the possession or distribution of PHI by journalists, filmmakers or others not specifically listed above.
The lack of regulation on filmmakers does not mean that health care providers will understand the law. Journalists often find themselves accused of violating HIPAA regulations when they possess or publish PMI they have obtained. In fact, since HIPAA does not regulate journalists (or filmmakers), no HIPAA violation has taken place. An individual may still sue for a public disclosure of private fact claim, but that would not be a HIPAA violation.
Ethical considerations of harm
Physicians learn a battery of ethics in medical school and the training that follows. Among the ethics they pledge to back is the notion to “First, do no harm” when treating their patients. Critics argue journalists, filmmakers and others who tell the true stories of our society to swear to the same pledge before they begin their work. Many of the codes of ethics of professional journalism organizations share this sentiment (the full codes are found at the bottom of this guide). The Society of Professional Journalists (SPJ) has an entire section in its code under the heading “Minimize Harm.” It states:
Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.
– Balance the public’s need for information against potential harm or discomfort. Pursuit of the news is not a license for arrogance or undue intrusiveness.
– Show compassion for those who may be affected by news coverage. Use heightened sensitivity when dealing with juveniles, victims of sex crimes, and sources or subjects who are inexperienced or unable to give consent. Consider cultural differences in approach and treatment.
– Recognize that legal access to information differs from an ethical justification to publish or broadcast.
– Realize that private people have a greater right to control information about themselves than public figures and others who seek power, influence or attention. Weigh the consequences of publishing or broadcasting personal information.
– Avoid pandering to lurid curiosity, even if others do.
– Balance a suspect’s right to a fair trial with the public’s right to know. Consider the implications of identifying criminal suspects before they face legal charges.
– Consider the long-term implications of the extended reach and permanence of publication. Provide updated and more complete information as appropriate.
These principles have meaning for filmmakers as they approach their characters and subjects to tell those stories. Some journalists have argued this profession should have its own oath similar to the Hippocratic Oath to which physicians swear. Broadcast producer Melvin Dean Baker suggests it be crafted something like this:
“I __________ In obedience to the dictates of my own conscience vow to serve the public with news and information as free of bias and distortion as is within my skill to execute.
I will strive to bring balance, depth and perspective to the work I offer, so it may enlighten and inform.
I will at all times remain mindful of the distinction between opinion and journalism and make it clear which voice I am speaking in.
I will honor the public trust by refusing to use my journalist voice to advance the propaganda of governments, organizations or advertisers.
I will protect the secrecy of my confidential sources to ensure the public’s right to know is not thwarted by conspiracies of silence.
I vow not to libelously harm another person’s character, reputation or legacy.
I affirm my commitment to this noble public trust in concord with all journalists of goodwill and integrity, for the betterment of the communities that I serve.”
While efforts like this might be more of a rallying point to get journalists to do the right thing, rather than a true effort to establish an oath, journalists have been clear about one requirement they do NOT want—a licensing procedure for journalists. Some have called for journalists to go through an official licensing process just as doctors and lawyers must do. Supporters argue that incompetent journalists can ruin lives just as easily as a quack doctor or a slipshod lawyer. But journalist push back against this idea on First Amendment ground. They see government licensing of journalists as a way to control journalists and what they publish. Legal scholars say any state or federal attempt to require journalists to be licenses would likely be tossed out on constitutional grounds by the courts.
Covering sexual assault
The explosion of stories about the sexual harassment and assault of women in the movie industry, journalism, business, academia and other places in 2017 called into question the way the media handle such stories. On the one hand, victims of these acts were often afraid to come forward and put themselves into the public spotlight. On the other hand, journalists often wondered what sort of verification could be done to be sure the stories being told were true.
Perhaps the most important work a filmmaker can do is to expose these hidden abuses to an audience. But the path to completing this work raises many questions. First among those is whether to identify the victims of sexual harassment, abuse and violence. In some cases, those victims voluntarily identify themselves, allowing filmmakers to use their identities freely in their work. In other cases, the victims wish to remain anonymous, seeking to tell their stories but salvage their privacy in the act.
While the First Amendment gives filmmakers and journalists a nearly absolute right to publish the names of victims of sexual assault, it has been a professional norm for more than a generation to withhold those names from publication—even if they are known to the filmmaker or journalist involved. Though some call for a change in that practice for the sake of the victims and not separating them from other victims of crime, most agree this practice should continue. The best approach is to work with the victim and determine that person’s wishes. Once known, the filmmaker should do his best to stick with the agreement.
Other concerns of reporting on sexual assault surround the language used by filmmakers and journalists. Often victim-blaming, an intentional or unintentional shifting of the blame for the crime onto the person who was assaulted, takes place due to the language used or the details included. For instance, writing about a rape need not include what the victim was wearing or how her makeup was done. Including those facts may send a message that the victim brought in on herself or “was asking for it.” Victims in what society has deemed to be marginalized communities (sex workers, trans people, immigrants, etc.) often end up being the targets of stereotypes once they are victims of sexual assault.
Perhaps the biggest sin committed by filmmakers and journalists focused on sexual harassment and assault happens when their reporting for the reasons behind the attack focus on the victim rather than the perpetrator. Victims are often looking to blame themselves for what happened to them, and media coverage that supports culpability in the victims only supports those feelings.
Working with juveniles and minors
Though the law often requires the courts, police and others around the justice system to withhold the names of minors accused of crimes, the courts have never put an restriction on the publishing of those names by journalists or others once they have obtained them. Filmmakers have the right to use the names and likenesses of minors in their work just as they would with adults.
While the law allows it, the ethics of choosing to depict and identify minors in published work are more complicated. The discussion here revolves around when to treat minors like adults, when to obtain parental permission and whether the publication of information about minors will cause harm to an innocent person.
In terms of treating minors like adults, that question often comes up in the investigation of crimes committed by minors. A judge must decide in these cases whether to charge a minor like an adult if the crime is of sufficiently adult nature. Filmmakers and journalists have their own decision to make whether to report the names of minors accused of such crimes. Many journalists build their own decision based on the crime committed and whether it seems the minor was acting in the manner of an adult. Those who are alleged to have done so often have their names and likenesses used. Those that seem to be involved in lesser crimes will often be spared having their name or likeness used in public.
Regarding parental permission for interviews of involving a minor in a reporting project, there is no law that requires a parent give permission for a child to be interview, regardless of age. This hold true regardless of the subject matter of the intended interview. Most journalists develop a personal standard by which to determine at what age to do an interview without parental consent. Typical among these standards is to get parental consent for middle school-aged or younger children, while those in junior high or high school can be approached without asking parents. These personal guidelines are only that—personal—and do not guarantee that an agree parent will not contact a filmmaker after the fact to complain he or she was not contacted to approve the interview. The only way to avoid such confrontations is to get permission from a parent or guardian any time one does an interview with a minor.
The final consideration here goes back to the concept of not doing harm to the subjects of our films. A filmmaker must weigh the value of having a minor in a film versus the possible harm that could be done to the minor by getting involved in the project. No law governs this decision, so the filmmaker must turn to trusted advisors and the minor’s parents to work this out.
Respect for the audience
National Public Radio (NPR) has, as part of its ethics handbook, a full section on respect. It states: “Everyone affected by our journalism deserves to be treated with decency and compassion. We are civil in our actions and words, avoiding arrogance and hubris. We listen to others. When we ask tough questions, we do so to seek answers — not confrontations. We are sensitive to differences in attitudes and culture. We minimize undue harm and take special care with those who are vulnerable or suffering. And with all subjects of our coverage, we are mindful of their privacy as we fulfill our journalistic obligations.”
NPR’s approach reflects a new trend in journalism that recognizes that the old one-way channel of communication from journalist to audience is changing. While transparency of process and a real desire to listen to audiences has grown commonplace across many journalism organizations, it is still difficult to apply this approach to filmmaking in a wholesale manner. Films are still one-way communication devices. But that call for civility of action and word and sensitivity to differences in attitude and culture can develop into a mission for filmmakers as well.