A DISCUSSION OF LAW AND JOURNALISM

Reality TV Invades the Hospital Room

NY Med

By Asher Hawkins

These days, some folks are only too happy to have the most intimate moments of their personal lives documented by a reality-television crew.

Others are old-fashioned enough that they don’t relish the thought that highly personal moments would be broadcast – and On-Demanded, Netflix’d, and Hulu’d – for millions to see.

The family of Mark Chanko, a patient at New York-Presbyterian Hospital whose final moments were captured on camera and then used in a scene of ABC’s “NY Med” belongs in this second camp, and has sued  the network, the hospital, and several doctors believed to have been involved in treating the man prior to his death.

The New York Post and the New York Daily News reported that Mr. Chanko’s widow was shocked when she tuned in to the show and saw the scene featuring her late husband; though his face was blurred, she recognized his voice immediately. The media didn’t analyze the strength of the subsequent lawsuit. We will.

The Chankos’ chief claim is that use of the footage constituted a violation of the New York law protecting what is known as the “right of privacy” (or “right of publicity”.) So ingrained is this concept of right to privacy in our collective consciousness today, that most Americans probably don’t realize that the U.S. Constitution does not expressly protect Americans’ right to shield their private lives from public inspection. It was not until the 20th Century that the U.S. Supreme Court began to interpret the Bill of Rights so that privacy was deemed constitutionally protected in certain contexts not referenced in the Constitution – married couples making decisions about their sex lives, and extended families making decisions about their living arrangements, for example.

Such Supreme Court decisions focused on whether laws made by state and local governments intrude on citizens’ privacy in certain situations. But the push for U.S. courts to recognize a right to privacy originally began in the late 1800s, and was prompted not by concern about government-on-citizen privacy-intrusions, but about citizen-on-citizen intrusions. As LASIS explained in a recent article, recognition of a right of privacy was most famously advocated in an 1890 law review article that warned of the negative ramifications then-emerging camera technology would have on what the authors regarded as a fundamental human right, “to be let alone” – not from government intrusion, but from “[i]nstantaneous photographs and newspaper enterprise [that] have invaded the sacred precincts of private and domestic life…”

Judges throughout the various states were reluctant to recognize the right of privacy, and in 1902, New York’s highest appeals court ruled against a young woman in a suit over unauthorized use of her likeness in a print ad promoting a brand of flour. New York’s legislature responded the following year by codifying a right-of-privacy law; its modern version is found in New York’s civil-rights code and prohibits the use of someone’s name, likeness or voice for “advertising purposes or for the purposes of trade” without his written permission. Note that this language means that the New York statute’s protections are available to celebrities and common folk alike – some right-of-privacy/publicity laws, like the California statute governing use of the likeness of dead celebrities, are available only to the famous.

Not surprisingly, the New York right-of-privacy statute is the first law mentioned in last week’s complaint against the “NY Med” producers. (The family of the now-deceased patient is also alleging violation of hospital-patient confidentiality as protected by New York law, as well as infliction of emotional distress in violation of New York case law; the footage even captured the highly fraught moment when hospital staff informed Mr. Chanko’s family that he had passed away.)

The television show’s prodcuers will likely argue that the primary purpose of “NY Med” is to inform the public about a newsworthy issue – which would mean that use of the footage in question wouldn’t be considered as having been done “for the purposes of trade”, as that phrase is used in the New York statute.

In the last few decades, New York courts have repeatedly ruled in favor of news and documentary program producers sued by unhappy subjects who allege violations of the state’s right-of-privacy law. Generally speaking, the courts have held that the primary “purpose” of these defendants’ use of a plaintiff’s likeness was not to engage in “trade”, but to provide the public with information concerning a topic of general interest – an endeavor that American judges tend to go to great lengths to protect in light of the First Amendment’s “freedom of the press” clause. Some examples of notable decisions out of New York that have followed this line of reasoning:

* In 1983, a New York appeals court ruled in favor of CBS in a suit filed on behalf of a psychiatric patient who had briefly appeared in a TV documentary about transitioning long-hospitalized mentally disabled people back to life in the outside world. The judges reasoned that since most media outfits are for-profit corporations, a “literal construction” of the New York law’s “purposes of trade” language “would violate the constitutional protection of free speech and free press when…a matter of public interest” is involved.

* The following year, CBS again prevailed in a right-of-privacy action filed over one of its news broadcasts. In that case, a man and a woman who worked in construction together were briefly featured, holding hands in public with their hard hats on, in a segment about romance in the Big Apple. The happy couple was concerned about how his wife and her fiancé would react to the footage. A Manhattan trial judge threw the case out of court, ruling that even a topic as broad as romance is of public interest, and therefore eligible for the same level of protection traditionally afforded to more “newsworthy” events.

* In 2002, one of the subjects of “Born Rich“, a documentary detailing the trials and tribulations of modern heirs and heiresses, attempted to secure an injunction against the movie’s producers, arguing he’d be subjected to ridicule if the footage of him were used in the documentary’s final version. A Manhattan judge denied his request, once again stressing that the concept of “newsworthiness” should be defined broadly.

Those who have watched “NY Med” – or its ABC-made predecessor from 2010, “Boston Med” — might question whether shows like these should be considered “newsworthy”: significant amounts of each episode are devoted to doctors’ and nurses’ personal lives, and it can be hard to tell where the “-drama” ends and the “docu-” begins.

But at least one New York decision suggests that even pure entertainment might not be regarded as created “for purposes of trade” under the state’s right-of-privacy statute. In the 1990s, real-life individuals who believed they were the basis for fictional characters – George Costanza from “Seinfeld” and the hustler from the play “Six Degrees of Separation” – were disappointed to learn that when it came to being protected by New York’s right-of-privacy law, they were out of luck.

The family suing the “NY Med” producers may have an uphill battle ahead of them. These days, at least in New York, the public’s right to be edutained is paramount.

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