US decision on harassment by paparazzi

In earlier posts we have discussed the UK law of harassment and the Europeanisation of Californian  Privacy and harassment laws bought in the deal with excesses on the Californian paparazzi.

In 1973 a harassment  action was taken against the Ronald Galella for intrusive actions against Jacqueline Onassis.  In its decision in Galella v Onassis the US Court of Appeals for the second circuit upheld the injunction. In an interesting statement balancing competing interests the Court said;

“Of course legitimate countervailing social needs may warrant some intrusion despite an individual’s reasonable expectation of privacy and freedom from harassment. However the interference allowed may be no greater than that necessary to protect the overriding public interest. Mrs. Onassis was properly found to be a public figure and thus subject to news coverage. See Sidis v. F. R. Publishing Corp., 113 F.2d 806 (2d Cir.), cert. denied, 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462 (1940). Nonetheless, Galella’s action went far beyond the reasonable bounds of news gathering. When weighed against the de minimis public importance of the daily activities of the defendant, Galella’s constant surveillance, his obtrusive and intruding presence, was unwarranted and unreasonable. If there were any doubt in our minds, Galella’s inexcusable conduct toward defendant’s minor children would resolve it.”

The plaintiff twice was found in contempt of a restraining order and a permanent injunction was issued prohibiting him from photographing Mrs. Onassis or the Kennedy children from less than 50 yards and prohibiting him from approaching within 100 yards of their New York apartment. The court in “Galella II” noted that “systematic public surveillance” of another could be construed as a plan to intrude on another’s privacy. Stating that crimes and torts committed in newsgathering are not protected by the First Amendment, the court found that the plaintiff’s constant surveillance and intrusive presence were unwarranted and unreasonable when weighed against the de minimis public importance of the daily activities of Mrs. Onassis (“Gallela II,” 533 F. Supp. at 1105 (quoting “Galella I,” at 487 F. 2d at 995-96).

A reporter’s trespassing upon private property, without more, will not trigger potential liability under the Onassis case. In its 1993 decision in Howell v. New York Post Co., 612 N.E.2d 699 (.Y.), aff’d in part, 619 N.E.2d 650 (N.Y. 1993), the New York Court of Appeals held that a reporter’s trespassing to photograph the plaintiff, who was outdoors, from a distance did not remotely approach the standard of Onassis-type liability. However, in April 1996, a federal trial judge in Pennsylvania applied Florida privacy law (because the underlying events occurred there) to Onassis-like facts and entered an injunction against two “Inside Edition” journalists. Citing the Florida Supreme Court’s decision in Cason v. Baskin, 20 So. 2d 243 (Fla. 1944), the federal judge found that the defendants were probably liable on the plaintiff’s intrusion claim — justifying injunctive relief — for hounding business-managing family members. See Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996).

There is a discussion of this decision and other US  privacy decisions concerning Privacy and Newsgathering   at the website of the First Amendment Center and the discussion concludes;

‘Americans may guard their privacy rights as much or even more than their First Amendment rights. Given ever-increasing technological advances, many believe that privacy rights need to be protected even more.

In the 2001 U.S. Supreme Court decision Bartnicki v. Vopper, which involved the news media’s disclosure of intercepted cell-phone conversations, Justice Stephen Breyer wrote in his concurring opinion: “The Constitution permits legislatures to respond flexibly to the challenges new technology may pose to the individual’s interest in basic personal privacy.”

However, this rush to protect personal privacy can infringe on the ability of the press to report on matters of important public interest. Ken Paulson, former executive director of the First Amendment Center and now editor of USA TODAY, may have said it best: “The challenge is to hold invasive technology at bay without handcuffing the news media. Concerns about personal privacy and a free press are on a collision course, and our nation’s priorities hang in the balance.” ‘