A recent case in the Northern District of California, Fraley v. Facebook, recalls singer-songwriter Momus’s prescient parody of Andy Warhol: “In the future, everyone will be famous for fifteen people.” Although Momus was discussing the revolution in the recording and distribution of music made possible by digital technologies that allowed performers outside the mainstream to become “stars” within certain listening circles, his statement applies at least as forcefully to the recent revolution in digital communications technologies, particularly the emergence of social media. The Fraley decision suggests that Momus’s prediction was dead on—and that the future has arrived.
The Fraley plaintiffs sued Facebook, alleging that its “Sponsored Stories” feature, which displays ads on Facebook containing the names and pictures of users who have “Liked” a product, violated California’s Right of Publicity statute. The statute forbids the commercial use of an individual’s name or likeness without consent. Integral to the plaintiffs’ claim was the assertion they had been injured because they were “celebrities” to their Facebook friends, such that their endorsements of the products in the Sponsored Stories held economic value—economic value that they were deprived of when Facebook published their Stories without their consent. Although we do not know how many Facebook friends theFraley plaintiffs have, it seems safe to say that their notion of celebrity departs from the conventional understanding of that term.
The plaintiffs’ assertion that they were famous to their friends raises interesting issues not only in terms of the allegations necessary to state a claim for violation of the right of publicity but also for the defense to that claim for the publication of “newsworthy” matters. In a motion to dismiss, Facebook argued that its Stories were newsworthy because “(1) Plaintiffs are ‘public figures’ to their friends, and (2) ‘expressions of consumer opinion’ are generally newsworthy.” The court agreed, stating that “Plaintiffs’ assertion of their status as local ‘celebrities’ within their own Facebook social networks likewise makes them subjects of public interest among the same audience.”
Although the court ultimately denied Facebook’s motion to dismiss, Fraley potentially has broad implications for the rights of privacy and publicity in the age of social media. In the end, the court held that Facebook users are famous to their friends and that even their most banal actions—indicating that they “Like” a product—may be “newsworthy.” Momus’s parodic pronouncement appears to have become the law. This Essay considers some implications of this remarkable development by tracing the evolution of the newsworthiness doctrine and then discussing where the Fraley decision fits in this evolution.
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The concept of newsworthiness has been at the core of privacy law since Warren and Brandeis posited a “right to privacy” in their famous article of the same name. Since then, the doctrine has shaped and been shaped by changing notions of what ought to be private, and what courts and the media should have to say about the matter. A passage from the California Supreme Court’s 1998 decision in Shulman v. Group W Productions, captures the difficult questions that have historically surrounded the notion of newsworthiness and its interaction with privacy law:
Newsworthiness . . . is . . . difficult to define because it may be used as either a descriptive or a normative term. “Is the term ‘newsworthy’ a descriptive predicate, intended to refer to the fact there is widespread public interest? Or is it a value predicate, intended to indicate that the publication is a meritorious contribution and that the public’s interest is praiseworthy?” A position at either extreme has unpalatable consequences. If “newsworthiness” is completely descriptive—if all coverage that sells papers or boosts ratings is deemed newsworthy—it would seem to swallow the publication of private facts tort, for “it would be difficult to suppose that publishers were in the habit of reporting occurrences of little interest.” At the other extreme, if newsworthiness is viewed as a purely normative concept, the courts could become to an unacceptable degree editors of the news and self-appointed guardians of public taste.
The Shulman court recognized that neither position is palatable, and later suggested the need to strike a “balance” between these two poles.
Courts and scholars have struggled with this balance since the dawn of privacy law. Warren and Brandeis’s “right to privacy” contained an exception for “matters of public and general interest.” But, of course, this carve out was to be limited to what the authors—and not the gossip-riddled media—deemed proper news items. “Persons with whose affairs the community has no legitimate concern” would enjoy protection from the public’s prying eyes. Only public officials and the like were excepted, and even then only information “bearing upon any act done by [them] in a public or quasi public capacity” would be fair game for the media. The authors suggested that these matters should not be subject to protection both because they were worth the public’s attention and because the people who engaged in them had voluntarily subjected themselves to public scrutiny. Warren and Brandeis’s normative approach was thus intended to accomplish their complementary goals of elevating the depraved public taste while ensuring a respect for the right to be let alone.
The 1939 Restatement of Torts approached the issue of newsworthiness similarly but ultimately marked a departure from Warren and Brandeis. The Restatement declared that “[a] person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.” But a comment to this section recognized an exception for information concerning individuals who were of interest to the public, whether through their own efforts or accidentally. Recalling Warren and Brandeis, the comment noted that a person who “submits himself or his work for public approval, as does a candidate for public office,” or “[o]ne who willingly comes into the public eye because of his own fault, as in the case of a criminal,” forfeits his or her privacy, and may well move into the realm of the newsworthy.
As in Warren and Brandeis, this movement was treated as a form of consent to what would otherwise be invasive conduct: public figures willingly shrug off their protective wrap and embrace the limelight. But the Restatement comment went further, stating that “the same result” applies “to one unjustly charged with crime or the subject of a striking catastrophe.” Thus, one could become newsworthy against one’s will. This notion marked a departure from Warren and Brandeis and at least a partial movement to a more descriptive approach to newsworthiness: what was newsworthy was sometimes simply what commanded the public’s attention.
By the 1950s, the “right to privacy” had given birth to a “right of publicity,” a phrase coined by Judge Jerome Frank. The latter doctrine gave individuals the right to control the use of their name, likeness, and signature—but not when used in connection with a newsworthy matter. As it has developed over the past six decades, the right of publicity has focused particularly on precluding the unauthorized use of the name or likeness of famous people for purposes of commercial endorsement.This focus on celebrities has made the application of the newsworthiness doctrine increasingly challenging: matters involving celebrities are more likely to command the public’s attention, and thus are more likely to be newsworthy—at least based on the descriptive notion of that term. Over the same period, as a corollary to the Supreme Court’s New York Times v. Sullivan decision, limitations on these rights for matters of public interest were recognized as constitutionally mandated. Courts began to interpret the “newsworthiness” exception coterminously with the First Amendment. Given these developments, it is perhaps no surprise that many courts deferred increasingly to the media on the question of whether matters were newsworthy.
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The rise of the Internet has spurred a democratization and a splintering of the news—both its sources and its audiences—that has raised new challenges. With blogs, webcasts, social networking services, and more, the authority for determining what news the nation consumes has been lifted from the hands of few and placed into the arms of many. Media experts have predicted that by 2021, “citizens will produce 50 percent of the news peer-to-peer.” Nontraditional participants have formed a splinter arena where deciding what news to run is not subject to shareholder or advertiser pressures. This new world, with the likes of The Drudge Report and The Smoking Gun, has doubled back to change the way the traditional media game is played. In 2010, the Associated Press told its writers and editors that blogs should be cited as news sources: “We should provide attribution whether the other organization is a newspaper, website, broadcaster or blog.” And of course, for every smash-hit blog like The Drudge Report, there are hundreds, if not thousands, of smaller blogs, each with its own sphere of influence.
The fragmentation of the media raises complicated questions about the doctrine of newsworthiness and how it should be applied, as the decision in Fraley illustrates. The court’s holding that Facebook users could be “public figures” to their friends and that their “expressions of consumer opinion” were newsworthy appears to be a gesture of deference to the media—the social media. In the language of theShulman court, the Fraley decision appears to treat newsworthiness as an entirely “descriptive predicate”: the plaintiffs’ “Likes” are newsworthy merely by virtue of the fact that they had been disseminated in communities where the plaintiffs were known—their online social networks.
The implications are significant and potentially far-reaching. The notion that every person is famous to his or her “friends” would effectively convert recognizable figures within any community or sphere, however small, into individuals whose lives may be fair game for the ever-expanding (social) media. If courts are willing to find that nontraditional subjects (such as Facebook users) are public figures in novel contexts (such as social media websites), First Amendment and newsworthiness protections likely will become more vigorous as individual privacy rights weaken. Warren and Brandeis’s model of privacy rights, intended to prevent media attention to all but the most public figures, will have little application to all but the most private individuals.
To be sure, these concerns do not originate with Fraley, and some scholars have noted a more engaged, less deferential approach to newsworthiness over the past decade, attributing that change to both increasing concerns about privacy and decreasing respect for journalism. At the same time, as reflected in Fraley, courts may remain reluctant to take a normative approach to newsworthiness. One possible resolution of this tension may be to shift the focus of the newsworthiness standard away from what the courts, community, or the media perceive as noteworthy to the conduct of the subject.
Under this approach, the judge or jury would not have to examine the precise milieu of the publication (be it blog or Twitter feed) and its audience (whether 10 individuals or 10,000), but rather whether the subject’s own actions exposed him or her to the attention in an inquiry akin to a determination of consent or waiver. Warren and Brandeis and the First Restatement contemplated this kind of exception, referring to instances in which individuals placed themselves in the public eye. Moreover, the exception may be particularly appropriate in the social media context, in which people participate because they want to share information about themselves with others in their communities and can exercise control over this sharing (that is, they can choose not to share). Granted it would still be incumbent upon the services that enable this sharing to honor users’ affirmative choices intended to limit the dissemination of their information, but where no affirmative choice has been exercised, the presumption would be that the matter is public and, therefore, unprotected. This approach may place a greater burden on the individual. But if the law is going to recognize greater economic rights in information about a person—if, as the Fraley decision suggests, everyone is now a celebrity, at least to some extent—it may be appropriate to require individuals to exercise greater responsibilities with respect to the information about themselves they might later seek to protect.
- Fraley v. Facebook, Inc., No. 11-CV-01726-LHK, 2011 WL 6303898 (N.D. Cal. Dec. 16, 2011).
- Momus, Pop Stars? Nein Danke! (1991), available at http://imomus.com/idex499.html.
- Fraley, 2011 WL 6303898, at *14.
- The court held that under California law, “even newsworthy actions” may be the basis for liability under California law when used for commercial, rather than journalistic purposes, and that Facebook’s “Sponsored Stories” were commercial. Fraley, 2011 WL 6303898, at *14.
- Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).
- 955 P.2d 469 (Cal. 1998) (citation omitted).
- Shulman, 955 P.2d at 481.
- Warren & Brandeis, supra note 5, at 216.
- Restatement (First) of Torts § 867 (1939).
- Id. cmt. c.
- See Haelan Lab., Inc. v. Topps Chewing Gum, Inc, 202 F.2d 866 (2d Cir. 1953). Although Judge Frank held that the right of publicity was distinct from the tort of appropriation of name or likeness, subsequent courts and commentators, including William Prosser, have downplayed the distinction. Still, some have argued that the right of publicity and the appropriation should be distinguished because they protect distinct interests. See, e.g., J. Thomas McCarthy, The Rights of Publicity and Privacy § 5:61 (2000).
- See, e.g., Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983); Onassis v. Christian Dior, 472 N.Y.S.2d 254 (N.Y. Supp. 1984).
- See, e.g., Time Inc. v. Sand Creek Partners, 825 F. Supp. 210 (S.D. Ind. 1993) (holding publication of pictures from private wedding of Julia Roberts and Lyle Lovett were newsworthy because Roberts and Lovett were widely known celebrities and the wedding had been highly publicized).
- 376 U.S. 254 (1964).
- See, e.g., Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975); Sipple v. Chronicle Publ’g Co., 201 Cal. Rptr. 665, 668 (Cal. Ct. App. 1984).
- See Amy Gajda, Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press, 97 Cal. L. Rev. 1039, 1041 (2009) (“For most of the past half-century, courts have resolved the tension between privacy and press freedoms by deferring heavily to journalists in determining newsworthiness. Partly out of First Amendment concerns and partly out of a sense of their own limited competence, judges have regularly declined to second guess journalists’ editorial decisions.”).
- Shayne Bowman & Chris Willis, The Media Ctr. at the Am. Press Inst., About “We Media”, available athttp://www.hypergene.net/wemedia/weblog.php.
- See, e.g., Aleks Krotoski, What Effect Has the Internet Had on Journalism?, Observer, Feb. 19, 2011, available athttp://www.guardian.co.uk/technology/2011/feb/20/what-effect-internet-on-journalism (“The web’s effect on news reporting is considered the most clear evidence that this is a revolutionary technology: news editors—and in some cases, the governments that they observe—are no longer the gatekeepers to information because costs of distribution have almost completely disappeared.”).
- AP Announces Editorial Guidelines for Credit and Attribution, Associated Press (Sept. 1, 2010),http://www.ap.org/pages/about/pressreleases/pr_090110a.html.
- See Gajda, supra note 16, at 1041-42; Rodney A. Smolla, Privacy and the First Amendment Right to Gather News, 67 Geo. Wash. L. Rev. 1097, 1097-98 (1999).