Respect My Privacy: Paparazzi vs. Celebrity
The Business of Capturing the “Money Shot”
The business of capturing and selling celebrity photographs is at an all time high. Today, the public has an insatiable appetite for celebrity news. Even trivial details about a celebrity’s personal life are of public interest: we want to know what sort of soda they drink, where they take exercise classes, and how they look without makeup. Recently, the personal life of reality television star, Kim Kardashian, has been a primary subject of tabloid scrutiny. The paparazzi relentlessly documented every move Kim made during her pregnancy and the world waited with bated breath for the first photograph of Kim Kardashian and Kanye West’s baby girl.
As a result of the public’s desire for celebrity photographs, tabloids will pay excessive amounts of money for these images, and paparazzi will go to great, even illegal, lengths to get the coveted “money shot.” The problem is that paparazzi often pursue this celebrity “money shot” without regard for the celebrity’s safety or that of the innocent bystanders’ around them. Paparazzi have been known to stalk, harass, and provoke celebrities in pursuit of a photograph.
Using the First Amendment as a shield, paparazzi defend their questionable tactics as protected news gathering. And legal disputes between paparazzi and celebrities are frequently settled out of court (after all the paparazzi-celebrity relationship is symbiotic, and celebrities fear retribution). BUT, the recent increase of celebrity and paparazzi altercations suggests that celebrities have had enough. (See Kanye West, TMZ story here). This begs the question: what recourse do celebrities have?
It is clear that celebrities are in need of some legal protection against paparazzi. The issue is how much do we give them, and how can we protect their rights without restricting the free flow of information to the public?
Line Drawing Problems – What matters are private and thereby safe from the public’s prying eyes?
Judge Cooley defined the right of privacy, as the right to be “let alone.”  The common law tort of “invasion of privacy” allows an injured party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs. A celebrity is protected from several distinct wrongs: (1) the use of a celebrity’s name or picture in advertising without their consent, (2) the invasion of their private space via wire tapping or similar wrongful conduct, (3) the publication of personal facts that while true are intimate or embarrassing, and (4) the publication of details of a celebrity’s life in a false or misleading manner.
The right to privacy is ultimately concerned with an individual’s right to control private information about themselves. The problem for celebrities is that the line separating their private lives from their public lives is hard to draw. Celebrities are said to have “thrust” themselves into the limelight, so they must accept that some of their conduct is public, even if they would prefer it to be kept private. But media coverage of celebrities often encompasses more than the talents that celebrities are famous for. And very famous celebrities, like Kim Kardashian, must tolerate an even greater invasion into their domestic and personal lives.
The celebrity’s loss of privacy rights is partially due to the status of celebrities as public figures, which subjects their everyday lives to more scrutiny than the average person. The “newsworthiness” of celebrity information also obscures the line between a celebrities personal and public life. For matters of public concern, the media is afforded a lot of latitude to publish truthful information, even if it is concerning a private affair. So yes, celebrities have a right to be “let alone,” but this privacy right excludes those personal matters that are of public interest. This means that paparazzi can intrude into a celebrity’s private life because the public ascribes value to this sort of celebrity information.
For Kim, this means that so long as she is out in public, paparazzi may follow her and document her actions (if only because her fans want to know and read about what she is doing). This also means that public places have become a paparazzi free-for-all zone. Paparazzi are free to crowd the streets with their cameras in tow, many of them doing whatever it takes to capture a picture. Not only does this endanger Kim, but it also endangers those that are around her.
Celebrities retain some privacy rights in areas (locations/places) of seclusion.
Celebrities may retain privacy rights in areas of seclusion, like their homes, but other protected private areas are not clearly defined by the tort of intrusion. Since areas of seclusion (where one has a reasonable expectation of privacy) are not clearly defined, celebrities must retreat to their homes in order to avoid unwanted publicity. And celebrities that are out in public can be seen as voluntarily subjecting themselves to the prying eye of the press. Kim Kardashian may have privacy while she is in her home, but the moment she leaves seclusion she becomes an unprotected target for paparazzi.
Regulating Paparazzi Conduct in Public Space
Under existing common law, it is difficult for celebrities to maintain a cause of action against the paparazzi for invasion of privacy. A celebrity’s recourse against the paparazzi is also limited by the tension between protecting the rights of celebrities and allowing room for free speech expression. The First Amendment guarantees freedom to the press; however, while the First Amendment can function as a shield for the paparazzi’s photographs, it does not protect paparazzi from all tort liability that may result from the manner in which they gather news. A newsworthy photograph may be protected speech under the First Amendment, but the news gathering technique the paparazzi employed to get the photograph is conduct that is outside of the purvey of the First Amendment guarantees.
Following the tragic death of Princess Diana, who died in a car crash while attempting to flee from paparazzi, efforts to restrict the intrusiveness of the media have intensified.  Princess Diana’s death is a reminder that this is more than a celebrity rights issue; it is a public safety issue. If paparazzi are given an unbridled ability to gather news, they pose a great threat to celebrities, innocent bystanders around them, and even to themselves. (See: Justin Beiber/Paparazzi story here; paparazzi dies as result of reckless driving while trying to photograph Justin Beiber).
In Galella v Onasis, the court held that “the interference by the press in the privacy of the individual can be no greater than necessary to protect the overriding public interest.”  The court found that the paparazzi’s constant presence and aggressive techniques, like driving recklessly, unjustifiably interfered with Jackie Kennedy’s daily life. The case suggests that paparazzi should not be able to substantially interfere with a public figures ability to live their everyday life. Paparazzi conduct cannot cause a celebrity to alter their lifestyle or interfere with their independence. If Kim Kardashian has to hire a look-a-like and sneak out of the back door of her house, then this is an unjustifiable interference with her life. Following Galella, paparazzi should not be able to harass and interfere with the lives of celebrities under the disguise of news gathering. Although Galella does not prevent paparazzi from taking photos of celebrities, it lends insight to the line drawing issues by delineating the amount of intrusion celebrities should have to tolerate. Celebrities should have not have to endure such dangerous and humiliating conduct.
We need to create boundaries of acceptable conduct and unacceptable conduct so that we can minimize the danger that paparazzi pose, without curtailing the right of the press to capture the “money shot.”
Many people find it hard to sympathize with celebrities like Kim Kardashian’s paparazzi problem; these people tend to see the loss of privacy as a fair exchange for the many perks celebrities receive. Under this reasoning, Kim Kardashian forfeited her right of privacy upon becoming a reality star. Others argue that celebrities do not forfeit all privacy rights simply by virtue of their celebrity status. It is true that some celebrities court the media to cultivate fame and attention. In fact, most celebrities consent to positive publicity, but this is not unfettered consent to be photographed all the time. Further, it is not tenable to assert that merely because celebrities like good publicity, they should be prevented from complaining when publicity is bad.
Moreover, just because the public wants to know details about the personal lives of celebrities, it does not follow that they need to know or have a right to know that information. The newsworthiness of information is determined by the social value of that information. Does the value of knowing what sort of soda a celebrity likes really outweigh the value of that celebrity’s privacy? Why should our societal curiosity trump Kim Kardashian’s right to privacy?
Perhaps, the solution is to redefine what sort of information qualifies as newsworthy. If the public interest in celebrity lives is given less weight, then the celebrity might “win” this battle against aggressive paparazzi and re-draw the line of privacy. On the other hand, as long as paparazzi can claim the purpose of news gathering and newsworthiness, celebrities will be forced to either stay in their homes or battle it out with the paparazzi in the streets.
 Thomas M. Cooley, COOLEY ON TORTS 29 (2d ed., Chicago, Callaghan & Co. 1888).
 487 F.2d 986 (2d Cir. 1973)