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Monday, November 30, 2009
Tiger Woods Brings to Light the Privacy Rights of Public Figures

Eric Zorn of the Chicago Tribune wrote an interesting post titled, Up in Tiger's Business: Is it Our Right to Know? Zorn writes that many of us may want to know what precipitated the weird, low-speed crash outside Tiger Woods' home very early Saturday. But he raises the question whether we have the informal right to know. Zorn makes an excellent point:
The implicit bargain of modern celebrity is that it's a battle between the image makers and the image wreckers -- the celebrity is no longer able to draw lines between public and private that the public will respect.

With athletes this is less true than with, say, actors. Tiger Woods' ability to earn millions of dollars in tournament prize money every year is not dependent on what you or anyone else thinks of him. For the most part he has avoided making his private life public and kept the journalistic focus on matters related to golf. His endorsement deals trade on his enormous talent and legendary focus on the links, not on whether or not he's a jolly paterfamilias.
Zorn is articulating in layman's terms the legal test that I propose (in my article Tort Law and Journalism Ethics) for public disclosure of private facts claims involving public figures, which I discussed in my post last week.


I hate to say it, but there is no privacy anymore. It really is the wild west, and the line between public and private figures really has vanished. The law will take a long time to catch up with this fact. Back in the day when there were just newspapers or, even further back, when it was just "word of mouth gossip," the law could handle it. Not anymore. You (i.e. "anyone") can argue what it should be until you are blue in the face. But with TMZ, Drudge, texting, camera phones, public 911 calls, FOIA provisions, email, IM'ing, and Skype, I'm sorry but privacy is now a passenger on a runaway train that's not coming back in the near future.*
*I realize there is no legal argument here, just a real world opinion and I wish it weren't that way, but it is. The world has changed from the days of Brandeis, and courts frankly will be powerless to keep things private no matter how many injunctions and rulings they enact or opine from the bench or their chambers.

Anonymous Anonymous -- 11/30/2009 9:43 AM  


You're basically stating a conclusion about technology's impact on the current state of privacy, and it doesn't address the legal question as to when and under what circumstances somebody has, or should have, a privacy claim. There is no question that technology has fueled much of the problem (which I discuss at length in my article). But the fact that technology permits people to do things doesn't mean they should be permitted to do it, nor that we should just simply say "the law can't handle it." So in answering the legal question, I'm not sure what relevance any of those things you mention has in regards to a news source's (or anybody else for that matter) liability for making a private matter public?

Blogger Rick Karcher -- 11/30/2009 10:06 AM  

Yes, like I said, I am not making a legal argument (you can do that). I'm saying that the cat is out of the bag and its not going back in anytime soon with regard to privacy (public or private) because of technology. It's quite sad, actually, that there is virtually (no pun intended) no privacy anymore. I realize that the legal argument about rights is what is at issue here. I'm just saying Tiger, his lawyers, judges, academics and others might claim a violation of privacy and legal rights, and might even attempt to enforce them, and might even get the legal system to side with them. But its like this: the public will find out one way or another (let me add facebook, twitter, myspace, fax machines, scans, too) and if the one-done-wrong wants to sue or seek an injunction or damages or whatever, whether public or private, so be it. It will just make it worse for them. Therefore the public will have the upper hand in reality, maybe not in legality. Maybe it will deter conduct? Maybe not. Admittedly, I haven't read your article, but I hope you at least mention that.

Anonymous Anonymous -- 11/30/2009 11:20 AM  

No one would claim that the fact that Tigher's wife was beating him with a golf club when he crashes--or the fact that the above is not so--is a problem with his earning monies from golf.

In Tiger's case, only about 10% of his annual earnings come from his sport. The rest of his Earnings are from his image and reputation--not his golf reputation, but his reputation as a person. (Seve Ballesteros, for instance, didn't come close to Tiger's total comp, though his golf winnings were fairly comparable.)

Every other high-comp position--finance, film, C-level industry contracts--has a "morals"/"reputation risk" clause, and accompanying penalties. Why w/should a professional athlete be treated any differently? (Let's ignore that they often are; Kordell Stewart's walks on the wild side didn't make Pittsburgh police blotters, for instance.)

Personally speaking, I could care less if Tiger is cheating on his wife, drunk, or just had a bad moment with his laser-surgeried eyes. (Well, I care about the latter if there is a trend in that surgery that makes it more harmful than reported, but that has nothing necessarily to do with it being Mr. Wooods.)

But I don't give him $100MM a year to endorse my products.

The people who do want to be certain that they aren't getting, say, a Sebastian Janikowski or a Lawrence Phillips. And they don't want their spokespeople turning out to be such. That logo on Tiger's cap didn't get there because he went into Dollar General and picked one up. The one on his sleeve isn't just because he found it at Mo's or The Sports Authority and thought it looked cool.

Sponsors have a right to protect and defend their investment practices.

If I drove up onto my lawn, knocked over a fire hydrant, and was subject to a 911 call from my neighbor reporting me sprawled on their lawn, I wouldn't have the option of declining to speak with the police about the incident. And while it's true that I wouldn't be featured on CNN's front news page, the argument that privacy trumps the right to enforce a contract--or determine if someone is in breech of it--seems a rather dubious one.

Blogger Ken Houghton -- 11/30/2009 12:10 PM  

Whether Ken realizes it or not, everyone has the right to remain silent, including declining to speak with the police.

Anonymous The Privacy Law Site -- 11/30/2009 12:52 PM  


You bring up some valid points regarding how superstars are sometimes given preferential treatment, but....

Almost every article, news coverage, hack reporter out there are spending 95% of the coverage on the "mistress" story and the theory that his wife went nuts and chsed him with a golf club... What possible nexus (to use an example from Rick's article) is there between the accident and the hyped up, sensationalised, cheating scandal stories that so called journalists are running with?

Blogger Jimmy H -- 11/30/2009 12:55 PM  


I think you raise an interesting point about technology. I think deterrence is key, and the law can certainly do that. Here is a good example:

Grady Sizemore just filed a lawsuit against a website for posting nude and partially nude photos of him that were obtained off his girlfriend's cell phone. Now, if the law doesn't step in on this one and say "you can't do that," well, then people will not be deterred from doing it.

Blogger Rick Karcher -- 11/30/2009 1:01 PM  

I need to clarify that the press release regarding Sizemore does not state that a lawsuit has been filed, it states that "legal action has been taken" and that it's "a legal matter under investigation."

Blogger Rick Karcher -- 11/30/2009 1:25 PM  

Every citizen, including Woods, has a right to remain silent. But if you do something in a public way that has no obvious explanation and you choose to exercise your right to remain silent, you necessarily give people license to speculate. It's not as if trees and the fire hydrants typically run into cars. Usually, trafffic accidents come with a need to explain what happended. This is particularly true when someone ends up unconscious and in a hospital. Whether the cause is as simple as poor lighting or temporary distraction or something more problematic as alcohol, Rx painkillers, speeding, or being chased by a wife who is wielding a 9-iron, you can't just go crashing into things and not expect people to ask questions. And if the police suspect one of the problematic reasons, then the police have every right to ask questions. If there is reason to believe a crime has been committed, Woods certainly can continue to exercise his right to remain silent, but his right to privacy for conduct related to a possible crime has been forfeited.

Anonymous Jerry -- 11/30/2009 4:50 PM  

I'm listening to a sports talk station right now where the three hosts are literally beside themselves with laughter discussing this story. They're convinced of all sorts of "facts" which have no particular basis in reality. No amount of laws, as Professor Karcher self-righteously insists we need, will 'deter' such jackassery.

Unless, of course, Professor Karcher simply wants the government to publish a list of topics that are forbidden from public discussion. If that's the case, he should have the guts to say so instead of hiding behind nonsensical tort theories.

Anonymous S.M. Oliva -- 11/30/2009 5:42 PM  

You know, I only see a deterrent to all this as being a criminal law approach not a civil (tort) law one. Technology, coupled with vicious human beings and nosy journalists, etc., have turned privacy on its head so that "privacy rights" and "public figures" (or anyone for that matter) might actually be an oxymoron in today's world. The whole privacy right discussion or argument, if you prefer, might actually represent a dying tort fading away with changing times and technology. Creative and vindictive people will find a way to expose private issues of anyone, let alone Tiger, with a few clicks in front of a computer screen and they could care less if they are sued or what a judge says.

Anonymous Anonymous -- 11/30/2009 5:57 PM  

If there is reason to believe a crime has been committed, Woods certainly can continue to exercise his right to remain silent, but his right to privacy for conduct related to a possible crime has been forfeited.

Reason to believe a crime was committed? Believed by whom? The media? Of course the police can and should investigate what may be a criminal act, but that has little to do with what the media is reporting.

Since when do you forfeit your right to privacy simply because a crime may have been committed? To my knowledge, no criminal charges have been filed. And even if there were charges filed, Woods, or his spouse, would certainly still retain their right to privacy. That right to privacy is completely independent of any criminal investigation. An investigation by the authorities is not a violation of privacy; the intrusion of the press however, is a different animal.

One of my favorite comments from a local radio personality in Tampa today:
“what I want to know is, if there was nothing fishy going on, what the hell was he doing in his car at 2:30 am…..”

Well, if that’s evidence of a crime, lock me up!

Blogger Jimmy H -- 11/30/2009 6:28 PM  

"Tiger Woods' ability to earn millions of dollars in tournament prize money every year is not dependent on what you or anyone else thinks of him."

I'm not sure of this.
The "celebrity" of Woods is what has turned 6-figure purses only 15-20 years ago into million dollar wins. Woods is unquestionably talented, but it's not his talent that doubles the TV ratings and media attention of the events in which he participates.

ESPN, Cable TV and the internet have turned athletes into celebrities, to the benefit of athletes who now make millions due to the massive TV and media packages teams/leagues can sign.

Just like "implicit bargain of modern celebrity" of actors and actresses (and Paris Hilton), these athletes have made a similar choice to participate in the multi-billion business of mainstream US sports.

Anonymous Anonymous -- 11/30/2009 7:49 PM  


I respectfully disagree. If a crime has been committed or the police are investigating a crime, I think the facts related to that crime are open to the public. Obviously, Woods is not required to provide those facts to the police or the press. But a crime is an offense against society and public resources are used to investigate, prosecute and deter crime. Thus, if an affair leads to marital strife, which leads to abuse, then I think those facts are fair game for to media.

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