New York Law Review

Tag: Newsgathering

  • Howell v. New York Post Co., 81 N.Y.2d 115 (1993): Limits on Emotional Distress and Privacy Claims in Newsgathering

    Howell v. New York Post Co., 81 N.Y.2d 115 (1993)

    The tort of intentional infliction of emotional distress cannot be used to circumvent the limitations on right to privacy claims, especially when the publication involves a newsworthy event and the photograph has a real relationship to the article.

    Summary

    Pamela Howell, a patient at a psychiatric facility, sued the New York Post for publishing a photograph of her taken without her consent while she was walking with Hedda Nussbaum, a figure of public interest due to her involvement in the Lisa Steinberg case. Howell claimed the publication revealed her hospitalization, causing her emotional distress. The Court of Appeals held that while the conduct of newsgathering could be tortious, the publication was related to a matter of public interest, and the photograph bore a real relationship to the article about Nussbaum’s recovery. Therefore, neither the privacy claim nor the emotional distress claim could succeed because the publication was qualifiedly privileged.

    Facts

    Pamela Howell was a patient at Four Winds Hospital, a psychiatric facility, and desired to keep her hospitalization private. Hedda Nussbaum, known for her involvement in the Lisa Steinberg case, was also a patient. A New York Post photographer trespassed onto the hospital grounds and took pictures of Nussbaum and Howell. The Post published a front-page photograph of Nussbaum and Howell walking together, contrasting Nussbaum’s healed appearance with a previous photo of her bruised face after Lisa Steinberg’s death. Howell’s name was not mentioned, but her face was visible.

    Procedural History

    Howell sued the New York Post for violating Civil Rights Law §§ 50 and 51, intentional and negligent infliction of emotional distress, trespass, harassment, and prima facie tort. The Supreme Court dismissed all claims except for intentional infliction of emotional distress and the derivative claim. The Appellate Division modified, dismissing the entire complaint. The Court of Appeals granted leave to appeal to consider the dismissal of the privacy and emotional distress claims.

    Issue(s)

    1. Whether the publication of Howell’s photograph violated her statutory right to privacy under Civil Rights Law §§ 50 and 51.
    2. Whether the New York Post’s actions constituted intentional infliction of emotional distress.

    Holding

    1. No, because the photograph was related to a newsworthy article about Hedda Nussbaum and bore a real relationship to the article.
    2. No, because the publication of the photograph was qualifiedly privileged as a newsworthy event, and the newsgathering methods, while involving a trespass, did not rise to the level of extreme and outrageous conduct.

    Court’s Reasoning

    The Court of Appeals reasoned that to succeed on a privacy claim under Civil Rights Law §§ 50 and 51, Howell needed to show that the photograph was used for trade or advertising purposes and bore no real relationship to a matter of public interest. Since the article concerned Hedda Nussbaum, a figure of public interest, and the article was not an advertisement, the court focused on whether the photograph had a real relationship to the article. The court found that the photograph did have a real relationship because it contrasted Nussbaum’s improved appearance with her prior disfigured state, illustrating her recovery. Quoting Murray v New York Mag. Co., the court reiterated that ” ‘a picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise.’ “

    Regarding the intentional infliction of emotional distress claim, the court acknowledged that while newsgathering methods could be tortious, the conduct alleged did not meet the stringent requirements for the tort. The court emphasized the “privileged-conduct” exception, stating that “[a] newspaper’s publication of a newsworthy photograph is an act within the contemplation of the ‘privileged-conduct’ exception.” The court further explained that for conduct to be considered outrageous, it must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (quoting Murphy v American Home Prods. Corp.). Trespassing to take the photograph, while unlawful, did not meet this high standard, especially because the photograph was taken outdoors and from a distance.

  • O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521 (1988): Establishes Qualified Reporter’s Privilege for Non-Confidential News Materials

    O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521 (1988)

    The New York State Constitution provides a qualified reporter’s privilege that protects journalists’ newsgathering materials, including non-confidential photographs, from compelled disclosure unless specific conditions are met.

    Summary

    This case addresses whether journalists’ non-confidential photographs, taken during newsgathering and kept as resource material, are protected from compelled disclosure by a reporter’s privilege under the New York State Constitution and the First Amendment of the Federal Constitution. The Court of Appeals held that such a privilege exists, extending to both confidential and non-confidential materials, and is triggered when the material was prepared or collected during newsgathering. The privilege is qualified, requiring a litigant seeking disclosure to demonstrate that the materials are highly material, critical to the claim, and not otherwise available.

    Facts

    The plaintiff was injured when his car slid off a roadway under construction and hit a concrete median. A photojournalist from Gannett Rochester Newspapers took 58 photographs of the accident scene, one of which was published. The plaintiff sued the contractors, alleging hazardous conditions. He requested Gannett’s photographs, but Gannett refused, claiming privilege under the First Amendment and the New York Constitution.

    Procedural History

    The Special Term granted the plaintiff’s motion to compel production of the photographs. The Appellate Division agreed that there was no reason to extend the reporter’s privilege to non-confidential materials. However, it remitted the matter for an in camera examination to determine the relevance and need for the photographs. The Supreme Court then ordered the production of 19 Gannett photographs, stating that they depicted relevant evidence not shown in police photographs. Gannett appealed.

    Issue(s)

    Whether the First Amendment of the U.S. Constitution and Article I, Section 8 of the New York Constitution provide a qualified reporter’s privilege that protects non-confidential newsgathering materials, such as photographs, from compelled disclosure in civil litigation.

    Holding

    Yes, because the New York State Constitution independently mandates a qualified privilege to prevent undue diversion of journalistic effort and disruption of press functions, and this privilege extends to non-confidential materials gathered during newsgathering.

    Court’s Reasoning

    The court reasoned that allowing routine access to press resource materials would jeopardize the autonomy of the press and burden their time and resources, hindering newsgathering. While CPLR 3101 typically requires full disclosure of material evidence, it does not adequately protect newsgathering activities. The court adopted a three-part test used by federal courts, holding that disclosure may be ordered only if the litigant demonstrates clearly and specifically that the items sought are (1) highly material, (2) critical to the litigant’s claim, and (3) not otherwise available. The court emphasized that the privilege applies regardless of confidentiality, focusing instead on the potential burdens on the press. The court noted the expansive language of the New York Constitution’s guarantee of free press and its history of providing broad protection to newsgathering. The Court noted that the three-part test complements general discovery principles, where competing interests must be balanced and the need for discovery must be weighed against special burdens on the opposing party. The court cited the NY Constitution, Art. I, § 8, assuring citizens’ right to “freely speak, write and publish” and prohibiting official authority from acting to “restrain or abridge the liberty of speech or of the press”.