Thursday, May 01, 2014
Donald Sterling and Privacy Law
despite the universal condemnation of Sterling's abhorrent comments, I have seen some articles and opinion pieces in the media by Alan Dershowitz among others about whether the takedown of Donald Sterling is a troubling loss of privacy for our society. Rather than just the philosophical concerns about privacy I have seen raised thus far, I thought it might be worth exploring whether Sterling might have a cause of action under the existing privacy laws. After all this is the rare privacy case, where the damages number is both large and fairly easy to prove. I am assuming based on my understanding of the facts that the conversation took place in California.
As an initial matter, as this seems to have been entirely the result of actions by private parties, the Fourth Amendment is not implicated. California's state constitutional privacy provision, however, applies to both the public sector and the private sector. Furthermore, it is worth evaluating whether Sterling might have a cause of action under the California Invasion of Privacy Act, or the privacy torts. More after the jump.
Most of the writing I have seen has focused on the California Invasion of Privacy Act. As many have noted, unlike its federal and many other state counterparts, California's version of a wiretapping statute requires the consent of all parties to the conversation prior to recording. This is where there is the biggest question of unknown fact. I have seen accounts claiming that Donald Sterling was aware of and consented to the tape recording. Somehow I find that hard to believe. It is unclear why this sort of conversation would be recorded, and why he would consent to it. It strikes me as more likely that the women involved claimed that he consented because the Act provides for criminal penalties and incarceration, with a fine of up to $2500 (probably a drop in the bucket compared to what TMZ likely paid them), but also imprisonment of up to a year. If Sterling indeed consented then he has no cause of action under the Act, but if he did not, then in addition to the criminal penalty California law provides a private cause of action with civil penalties of $5,000 per violation, or three times the amount of actual damages, whichever is greater. In this case, Sterling's damages are obviously significantly greater. It is worth noting that unlike federal law, the California version does not provide for punitive damages or attorney fees or costs.
Until 2002, there was a dispute as to what counts as a "confidential communication" that is subject to protection. In Flanagan v. Flanagan, 27 Cal. 4th 766 (2002), the California Supreme Court clarified that a conversation is confidential if a party has an objectively reasonable expectation that it is not being overheard or recorded. If Sterling was unaware and did not consent to the recording he likely satisfies this criteria.
Sterling may also have a cause of action for the common law tort of intrusion upon seclusion. Under Shulman v. Group W. Prod., Inc., 18 Cal. 4th 200 (1998), California allows a cause of action for an intrusion into the affairs or seclusion of another in a manner that would be highly offensive to a reasonable person. A surrepticious recording of a private conversation between a man and his lover might meet that standard, which only requires an objectively reasonable expectation of seclusion, not absolute privacy. Sterling's claim is weakened somewhat, by the apparent presence of a third person in the room. This does not entirely defeat his claim, but does turn it from a private conversation with a lover, to a conversation with a lover, with the lover's friend in the room. The expectation of seclusion in that case is somewhat lower. In Wilkins v. National Broad. Co., 71 Cal. App. 4th 1066 (1999).) the court found there was no offensive intrusion where two Dateline NBC producers videotaped a conversation over lunch with representatives of a communications company using hidden cameras. Key to the analysis was that the representatives spoke freely while other individuals were nearby. Similarly, Sterling seems to have spoken freely despite the supposed presence of the third individual. On the other hand, the court in Wilkins also emphasized that the conversation did not take place in a home or office, and there was nothing about their personal lives. The Sterling conversation did seem to take place in his home (or at least the home of the girlfriend), and did involve his personal life to a larger extent than in Wilkins.
Finally, Sterling would have the hardest time prevailing under the tort of publication of private facts. In California the tort requires 1) public disclosure; 2) a private fact; 3) which would be offensive and objectionable to the reasonable person; 4) which is not of legitimate public concern; and 5) the defendant acted with reckless disregard for the fact that reasonable people would find the invasion highly offensive. Both 2, 3, and 4 would make for an interesting case. Is the "fact" that Donald Sterling is racist a "private fact" for purposes of the tort? The statements were clearly "offensive and objectionable to the reasonable person," but it is not clear that is what the tort means. The tort is supposed to get at whether the reasonable person would find it offensive and objectionable that the private fact had been disclosed, not whether the private fact itself is offefnsive and objectioanble. Even if Sterling could overcome those hurdles, he likely would not be able to prove that the facts published were not a matter of legitimate public concern. The three factors used by California courts are 1) the social value of the facts; 2) the depth of the intrusion into ostensibly private affairs; and 3) the extent to which the plaintiff voluntarily assumed a position of public notoriety. The defendants will likely be able to argue that there is a tremendous social value in society being aware that the owner of an NBA basketball team is racist, and he clearly voluntarily assumed a position of public notoriety (even if not on that particular occasion).
Finally, with any of these causes of actions there is a real question of what a jury might do. It is not that unusual for privacy cases to involve repulsive characters such as individuals caught looking at child pornography, etc. Nonetheless, whether a jury would actually find in Sterling's favor on these somewhat close causes of action in light of his disgusting comments is an entirely different question.
Posted by Victoria Schwartz on May 1, 2014 at 12:39 PM | Permalink
There have been reports that the recording was consented to--that he had asked his girlfriend/assistant to record their conversations because he was experiencing memory loss. How the recording then got out is still unknown.
Posted by: Howard Wasserman | May 1, 2014 1:50:09 PM