Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, October 19, 2007

Florida Appellate Court Reverses Injunction: Broadcaster May Use Private, Medical Records It Obtained From Third Party

A Florida appellate court has lifted an injunction preventing a broadcaster from disseminating the contents of private and medical records that it acquired after they were sold at auction. The owner of the private and medical records had stored them in a facility but apparently failed to pay the storage fees due.

According to the appellate opinion, "An unknown third party purchased the records. Appellant acquired the documents from the third party. Thereafter, Appellant contacted Appellee to inform him that it intended to publish portions of the contents of the records in its telecast. Appellee sought to prevent the public airing of his personal information by filing a two-count complaint seeking declaratory and injunctive relief and replevin. He also filed a verified motion for temporary injunction without notice. In the motion, Appellee alleged that the records remained his private property, despite Appellant’s claim of ownership, because the storage facility’s determination that he had failed to pay was erroneous. The motion further alleged that some of the boxes of records included medical records of Appellee and his family, and communications between Appellee and his attorneys. The lower court granted the motion, ex parte, and temporarily enjoined Appellant from publicly airing the information."

The broadcaster filed this appeal, claiming that it amounted to a prior restraint. The parties agreed that Appellee is a public figure.

In its de novo review, the Court found that, "Here, Appellee asserts that his privacy interest in his private papers, and in particular his medical information and attorney-client communications, is sufficient to sustain his burden. Although Appellee does not direct our attention to any Supreme Court case that has ever upheld a prior restraint to protect a competing privacy interest, the possibility that privacy rights might justify such a restraint has not been completely foreclosed by the Court. For example, in a leading case, although stating that a prior restraint may be justified only in "exceptional cases," such as maintaining the secrecy of troop movements in wartime, the Court emphasized that its holding did not address the “authority to prevent publications to protect private rights according to principles . . . of equity.”... Notwithstanding any suggestion by the Court that privacy rights might trump the First Amendment in a given circumstance, time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise of free speech. The Court has done so by prohibiting both prior restraints and the constitutionally less-intrusive, post-publication imposition of criminal and civil liability....

"Although these precedents are somewhat instructive because they suggest that privacy will rarely trump the First Amendment, all of these cases are distinguishable from the situation that we are confronted with here. In this case, Appellee seeks to enjoin the publication of documents that, based on the nature of the documents, are of no obvious public concern. We particularly observe that in most instances, an individual's medical records would not be of public interest. We do not think that Appellee’s status as a public figure means that every aspect of his private life is of pubic (sic) concern.... 

"But even if Appellee’s documents are of public concern due to his status, it is difficult to envision how the medical records of his family could be a concern to the public. The abstract issue framed by the parties in this case, therefore, involves the extent to which privacy interests in information, which is of no apparent public concern, may be asserted as a basis for limiting the First Amendment’s prohibition against censored expression by a publisher who comes into possession of the information without resort to improper means.

"Appellant urges that the answer is never; it contends that the sole remedy for an alleged invasion of privacy under these circumstances is an action for damages. Otherwise, Appellant argues that the determination of whether a fact is of public concern is taken away from editors and placed with the courts, amounting to prohibited censorship. Appellee’s position is not as rigid. He contends that a prior restraint based on privacy grounds may be justified when privacy rights outweigh the First Amendment’s protections. He urges that the balancing of these interests, as was done by the lower court here, is the appropriate approach. We find it unnecessary to sanction either position to resolve this case because, even under Appellee’s approach, we determine that the injunction is not justified as Appellee has failed to establish that the contents of the records at issue are sufficiently sensitive to give rise to an actionable invasion of privacy should the documents be published.

"Therefore, even if we were to balance the respective rights of the parties, Appellant would prevail. To reach this conclusion, we need only examine Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996), the case upon which Appellee places his heaviest reliance. There, the court entered an injunction to prohibit broadcast journalists from engaging in certain conduct in connection with an Inside Edition exposé on the high salaries being paid to the executives of U.S. Healthcare. The court predicated the injunction on a finding that the plaintiff had established a likelihood that he would succeed on his claims for unlawful interception of oral communications and invasion of privacy under Pennsylvania and Florida state law. On the invasion of privacy claim, the court found that the plaintiff had proven the “highly offensive to a reasonable person” element of the tort. These statutory and tort law violations, said the court, were sufficient to overcome the defendants’ First Amendment arguments. Even assuming that Wolfson is a correct analysis of the interplay between the First Amendment and privacy interests protected by state law, we cannot conclude that Appellee has shown that he is likely to prevail because he has not proven that Appellant’s anticipated conduct would constitute a tort or actionable violation of state law."Read the entire opinion here. The case is Post-Newsweek Stations, Inc. v Guetzloe, Case No. 5D07-430 & 5D07-526. See also the Florida broadcaster's "Guetzloe Files' webpage here to see why there was so much interest in the plaintiff.

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