Speaker Discusses Balance of Privacy, Public’s Right to Know

When does the right to privacy end and freedom of the press begin? That was the question raised by David McCraw, deputy general counsel for The New York Times Company, during a continuing legal education session co-hosted by the Nebraska Paralegal Association and ARMA.

Drawing from a variety of examples, McCraw explained the circumstances in which a person’s or group’s right to privacy could be trumped by the news media’s right to publish and why they’d have a better chance of winning such an argument in Europe than in the United States.

In the first example, Meghan Markle sued a British tabloid after it had printed a private letter that she had sent to her father, which her father had passed on to the tabloid. Markle claimed that the letter had been intended to be private and wasn’t meant to be shared with the public.

McCraw said the case raises a number of questions regarding privacy: Who is at fault in this situation? Is the tabloid liable because it printed the letter? Is Markle’s father liable because he shared what was meant to be a private letter with the tabloid? Do you have the right to disclose a letter that was written to you?

In this case, the British court found in favor of Markle, stating that she “had a reasonable expectation that the contents of the letter would remain private” and that the articles had “interfered with that reasonable expectation.”

McCraw explained that had Markle filed such a suit in the United States, she most likely would have lost. There is no explicit right to privacy in the Bill of Rights, he said.

In another example, The New York Times sent a photographer into New York’s public hospitals last year to take pictures of what the coronavirus pandemic looked like for medical professionals.

McCraw himself negotiated with the hospitals to secure access for the photographer. They worried what might happen if the paper printed a photo in which a patient could be identified. Other questions included: Does that patient not have a right to privacy under HIPAA regulations? Could the patient sue the newspaper for violating their privacy?

The patient could certainly sue, McCraw said, but “the press is going to win unless the disclosure has absolutely no artistic or newsworthy value.”

In 2016, when New York Times reporter Susanne Craig was sent an envelope containing three pages of then presidential candidate Donald Trump’s 1995 tax returns, McCraw was part of the legal team that had to determine whether the paper could legally disclose the tax information to the public.

Once the reporters had determined that the documents were genuine – which they did by tracking down and speaking with the accountant who had prepared Trump’s taxes that year – the lawyers had to decide if it was permissable to publish them.

“The Supreme Court has been clear that if news organizations receive those sorts of documents that are supposed to be secret legally, they did nothing wrong to get them,” then they are protected under the First Amendment, McCraw said. The person who originally provided the private documents to the paper, however, would be open to prosecution.

“The courts in the United States have been deeply concerned about what they call the chilling effect or self-censorship and the public’s need to know,” McCraw said. “The courts have left in the hands of the press to make an ethical decision about what to do, to disclose and not to face legal risk if they have obtained the information legally and it’s truthful and it’s a public interest, even if it violates somebody’s privacy.”

McCraw also touched on the use of technology in maintaining one’s privacy.

In Europe, people enjoy “the right to be forgotten,” which allows a person to ask for an internet company to remove their name from search terms they don’t want to be associated with. The right is contained in the General Data Protection Regulation, more commonly known as GDPR. For example, a person can ask Google to remove search terms linked to a news article about them, but the news article itself would remain available.

In the United States, this would present a First Amendment issue, McCraw said, but some U.S. companies have voluntarily started allowing people to request that articles be removed if the article is no longer relevant. The question then becomes: Who determines whether an article is relevant or not?

“Just because Google thinks that something’s no longer relevant, would you feel different if you were about to employ that person?” McCraw asked. “Maybe that article would tell you something if you were about to date that person, if that person was your kid’s bus driver or that person was a candidate for your local city council.”

McCraw spoke to members of NePA and ARMA through Zoom due to the coronavirus pandemic.

For more on NePA, visit nebraskaparalegal.org. For more on ARMA, visit armanebraska.org.