18 Chapter 18: Privacy vs. The Public’s Right to Know
NYU Journalism Handbook for Students
NYU Journalism Handbook for Students
Ethics, Law and Good Practice
Carter Journalism Institute
Faculty of Arts and Science
New York University
20 Cooper Square
New York, NY 10003
By Prof. Adam L. Penenberg
REVISED 2020
Open Access License: The author of this work, in conjunction with the Carter Institute at New York University, has chosen to apply the Creative Commons Attribution License to this Ethics Handbook. While the author and the journalism institute retain ownership, we encourage others to reprint, amend and distribute this work for both commercial and noncommercial uses, as long as the original author and the journalism institute are credited. This broad license was developed to allow open and free access to original works of all types.
PRIVACY VS. THE PUBLIC’S RIGHT TO KNOW
A question journalists often confront is how much of a person’s private life should be revealed in an article. Just because a reporter can pull up a source’s mortgages, stock holdings, or perform a Google Earth flyover of their home doesn’t mean that’s ethical practice. It also doesn’t necessarily mean it’s unethical either. The key is whether a person’s private life—his personal habits, sexual preference, medical condition, odd interests—is newsworthy and should therefore be published. These can be vexing decisions to make.
People who feel that their privacy has been invaded can sue in a privacy tort action under what is sometimes known as “embarrassing private facts.” The court’s balancing of interests between a person’s privacy and freedom of the press can be helpful as well to journalists making ethical decisions whether to publish private facts. In a privacy suit, the plaintiff must prove that the revealed facts were highly offensive to a reasonable person, sometimes defined as “morbid and sensational prying into private lives for its own sake.” But newsworthiness is a defense in privacy actions. How do courts define newsworthiness? Look closely at the social value of such information Does the private information reasonably relate to matters of concern to people in the community? Does it relate to a subject of general interest?
If you are writing about a gay bar destroyed in a fire, do you release the names of deceased patrons? What if you learn a homemaker in the community had been a prostitute many years earlier. Do you run it? If a woman accuses a man of rape do you publish his name if charges haven’t been filed, and do you investigate the sexual history of the woman making the allegations? If a local judge rents a porn video, is that news?
Some real life examples:
- In April 1992, USA Today contacted retired tennis star Arthur Ashe to confirm a rumor he was HIV-positive, which Ashe, who had been infected by tainted blood during heart surgery several years earlier, had tried to keep secret. When Ashe couldn’t convince editors to drop the story, he held a press conference to announce it himself. Although many believed this was an invasion of Ashe’s privacy, the newspaper justified its actions by claiming a “conspiracy of silence has not served the public.”
- Oliver Sipple became a hero in September 1975 for helping thwart an assassination attempt on then President Gerald Ford. In the ensuing press coverage, he was outed as being gay and his mother disowned him.
The internet adds an ever-increasing number of ways to expose people—with potentially embarrassing facts reappearing on searches for years. The NYU Journalism Institute faculty believes that privacy should never be taken lightly and recommends that student reporters not inquire into sources’ personal lives unless doing so is relevant to the story they are researching. The fact that a local politician has patronized a gay bar might be their private business; the fact that a local politician known for anti-gay stances had patronized that bar might be the public’s business.
Dox or doxing (or doxxing) is defined as the act of posting or publishing private information (such as a person’s home address, phone number, social security number and medical records) often as form of punishment or revenge. It is a neologism that springs from the slang expression “dropping dox” (for docs or documents), which itself originated with 1990s hacker culture.
In 2012 Gawker writer Adrian Chen outed an anonymous reddit troll called violentacrez, who was an active poster to a subreddit that sexualized young girls, which Chen called a “fountain of racism, porn, gore, misogyny, incest, and exotic abominations yet unnamed.” As a result, violentacrez, whose real name is Michael Brutsch, was fired from his job as a computer programmer and himself became victim of harassment. Chen faced significant backlash from members of the reddit community, who accused him of doxing Brutsch. Others, such as technology reporter Farhad Manjoo, claimed this kind of doxing was simply “reporting.”
Sometimes people have good reasons for maintaining anonymity online. For example, they may fear for their safety. Other times they don’t–abusers like violentacrez/Michael Brutsch, who hide behind the cloak of anonymity to act with impunity.
The disclosing of private information isn’t new. Screw magazine publisher Al Goldstein would publish the names and phone numbers of people who he believed had crossed him, knowing that his fans would make life for them difficult. It isn’t even an American conceit. In the 1990s, Lord Herman Ouseley, who campaigned for race relations in the UK, received countless late night phone calls after far right activists inked his number on cards and left them in public toilets around London.
From the perspective of a journalist, it is an oft-misused and misapplied term. Just publishing a person’s real identity isn’t, strictly speaking, doxing, yet that is how some view the practice. The key is to determine the news value of publishing someone’s identity versus the harm that could come from it.
The vast majority of the time journalists should make clear to the people they are interviewing that they are journalists. State your name and affiliation up front; i.e., Jane Smith, Carter Institute of Journalism at New York University, and your purpose in contacting a source. In highly unusual circumstances there may be good reasons for not identifying oneself as a journalist. For example, if observing police officers interactions with protestors at a rally, or reviewing a restaurant or videotaping counterfeit merchandise in New York’s Chinatown, identifying yourself as a reporter may not be appropriate since it could affect the type of treatment (or quality of food) you receive. Likewise, if conducting an undercover assignment, especially if outing oneself as a reporter could result in potential harm. But these are rare examples.
Often reporters scour discussion threads, message boards, forums and online communities seeking ideas and information without identifying themselves as journalists. It may be permissible to cite the information if it shows, say, how some YouTube users reacted to a specific video on the site. Obviously it is not always necessary for a journalist to identify themselves in that circumstance. But if a reporter wishes to use information from a forum/chatroom, email chain or other online sources, they should be mindful that deception is endemic to the internet. If at all possible, the reporter should attempt to contact the person who posted the information, identify themselves as a reporter, and try to persuade the source to provide full identification.
Going undercover is a time-honored tradition in American journalism. Done well, it can help nail corrupt politicians and cops on the take, expose fraud and racism, and shed light on the plight of women in repressive societies. Done unethically, it can violate a citizen’s privacy through unwarranted surveillance and intrusion into people’s private business, and erode public trust. As a society would we want reporters functioning as a sort of auxiliary police trying to catch our transgressions?
Before engaging in any undercover work for a class assignment, consult your professor. Carefully consider whether your reporting could violate criminal or civil law (See the Legal section for more information). Weigh the potential harm involved. Could relying on subterfuge get you arrested? Could it lead to violence? Does it invade someone’s privacy, especially in a non-public area like a home or an office? Are there laws in your state against recording without a person’s permission, or specifically against using hidden cameras? Might it undermine the validity of your story? These are serious questions to consider.
The San Francisco Chronicle applies three tests to undercover assignments before editors will give the go ahead:
- Is the resulting news story or photograph of such vital public interest that its news value outweighs the potential damage to trust and credibility?
- Can the story be recast to avoid the need to conceal one’s identity in gathering the information?
- Have all other reasonable means of getting the story been exhausted?
Reporters should seek permission from a parent or guardian before interviewing children on any controversial subject. Getting a quote from a 12-year-old on the opening of a new swimming pool would not require such permission – as long as you only use the child’s first name; getting a quote on allegations that a school is unsafe would. If you’re planning on using a child’s full name, you should get permission. When the call seems close, the reporter should discuss with a faculty member (or editor in a professional setting) in advance to determine the ethical course.
