Jacova v. Southern Radio & Television Co.

• Decision Date: 26 October 1955
• Citation: 83 So.2d 34
• Parties: John JACOVA, Appellant, v. SOUTHERN RADIO AND TELEVISION COMPANY, a Florida corporation, Appellee.
• Court: Florida Supreme Court

Page 34

83 So.2d 34

John JACOVA, Appellant, v. SOUTHERN RADIO AND TELEVISION COMPANY, a Florida corporation, Appellee.

Supreme Court of Florida, Special Division A.

Oct. 26, 1955.

Sommer, Frank & Weston, Ader & Young and Burton Young, Miami Beach, for appellant.

Bernstein & Hodsdon, Miami, for appellee.

ROBERTS, Justice.

The plaintiff has appealed from a summary judgment entered in favor of defendant in a suit for damages filed against it by plaintiff, based on the following incident: In a news telecast presented to the television audience by defendant, entitled 'Renick Reporting,' the defendant showed a 'canned' film depicting a gambling raid on a restaurant in Miami Beach, followed by another raid on a hotel there. Accompanying the film was a narrative account by Renick of the activities of the officers during these raids, the text of which is as follows:--

'Jan. 3, 1954.

'Renick Reporting

'A raiding party of state and local law enforcement agents swooped down on a Miami Beach 23rd Street restaurant yesterday arresting a Buffalo ganster on gambling charges:

'Representatives of the State Attorney General's, Dade Sheriff's and State Attorney's office here raid Sonny's Chicken and Barbeque House-320 23rd Street, Miami Beach.

'Deputy sheriff Dayton Blackford frisks one of the suspects. Sam DeCarlo-former Buffalo New York racketeer told officers he was unemployed. He had nearly two thousand dollars in his pockets. John Tronolone-operator of the restaurant was the other person arrested at the address. Both men charged with operating a gambling house-violation of state beverage laws and resisting arrest.

'The other men found in the restaurant were released after questioning.

'Five partly filled bottles of whisky had been purchased to give free holiday drinks to his customers said Tronolone.

'Buddy Gasque, John Reed, Bill Culbreath and Ed McMullen of the Attorney General's Office, Fred Jones of the State Attorney's Office and Deputy Sheriff Blackford comprised the reiding party.

'Tronolone's cousin Carmen was arrested at his appartment by other officers. Then raiders visited the cigar shop of the Casablance Hotel looking for a man reputedly accepting bets there. Two young women employees were questioned and released-they disclaimed any knowledge of bookmaking operations there; however, one bellboy was arrested on a bookmaking charge.'

The plaintiff alleged in his complaint that, immediately prior to the comment that 'Tronolone's Cousin Carmen was arrested at his apartment by other officers', his picture was exhibited to the entire television audience; that he was, in fact, miles away from the 'aforedescribed scene and was not in any manner involved in the 'gambling' raid or the 'arrest',' as filmed and exhibited by the defendant, and that the defendant in the exercise of reasonable care in exhibiting the 'canned' film should have so determined. He alleged that his right of privacy has been invaded, injuring him in various enumerated ways, and that he has been "tagged' and is identified as an alleged gambler to the public's notice and attention, which is false and obnoxious to Plaintiff'. He claimed damages for personal injuries and for injury to his business.

The deposition of the plaintiff was taken, and this, together with the film and narrative comprising the newscast, was submitted to the trial judge in support of the defendant's motion for summary judgment. As noted, the motion was granted, and plaintiff has appealed.

In his deposition, plaintiff stated that he was present at the cigar shop at the hotel during the time of the second raid, where he had stopped by for a newspaper on his way home. He said, 'I was looking over the newsstand, and suddenly several men moved in fast, and one pushed me up against the wall, and started reading the paper to me, and claimed I was a man by the name fo Tony, and running a gambling establishment there; and then he asked me for identification, and I pulled out my wallet, and I gave it to him.' The film shows the plaintiff standing against the wall, with one or two men, presumably the officers, talking to him. The photograph of plaintiff and the two officers occupies the entire screen, with a corner of the cigarette counter in the cigar shop being visible in some of the shots. The scenes showing the plaintiff consumed several seconds of the film-not more than twelve or fifteen, according to the statement of defendant's counsel in brief-and were flashed on the screen immediately following the scene in the restaurant showing the raiding officers during their identification by the narrator. The film then switched to activities outside the cigar shop, and then back inside for a picture of the officers interrogating the young women employees.

At the outset, it should be noted that plaintiff's contention in his brief that he was 'depicted as being arrested as a gambler' by the telecast in question cannot be sustained. No reasonable person could have inferred that the plaintiff was 'Tronolone's Cousin Carmen' who was being 'arrested at his apartment by other officers.' The background had no look of an apartment, and the corner of the cigarette counter in the cigar shop was clearly visible in most of the scenes involving plaintiff. It could certainly not be inferred that he was the belloby who the narrator stated was 'arrested on a bookmaking charge' during the raid on the hotel. On the other hand, it is not clear that plaintiff was simply an 'innocent bystander'-admitted to be so by defendant-who happened to be in the cigar shop at the time of the raid. So far as the telecast showed, he was just an unidentified person, standing against the wall and apparently being interrogated by the officers. While this was not sufficient to 'tag' his as a gambler, as contended by plaintiff, it was enough to show that he was under suspicion of being involved in the gambling activities for which the officers were searching-and, in fact, the plaintiff's deposition shows that this was exactly what happened.

The defendant's argument here is that, since the telecast did not falsely depict the plaintiff as 'being arrested as a gambler' or 'tag' him as a gambler, it was privileged to publish his photograph because he became an actor in a newsworthy event, to wit, a gambling raid, and as such has no standing to claim an actionable invasion of his right of privacy under principles of law established in other fields of news dissemination, such as newspapers, magazines, newsreels and the like. And it is true that it is settled law in this state-as in other stated in which an action for invasion of privacy is recognized-that as to these fields the right of privacy does not necessarily protect a person against the publication of his name or photograph in connection with the dissemination of legitimate news items or other matters of public interest. Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430; Id., 159 Fla. 31, 30 So.2d 635. Or, as stated by some courts, 'Where one, whether willingly or not, becomes an actor in an occurrence of public or general interest, he emerges from his seclusion, and it is not an invasion of his 'right of privacy' to publish his photograph with an account of such occurrence.' Metter v. Los Angeles Examiner, 1939, 35 Cal.App.2d 304, 95 P.2d 491. Accord: Jones v. Herald Post Co., 1929, 230 Ky. 227, 18 S.W.2d 972; Berg v. Minneapolis Star & Tribune Co., D.C.Minn. 1948, 79 F.Supp. 957.

This rule has been applied to actions involving newsreels, Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752, and to radio broadcasts, Smith v. Doss, 1948, 251 Ala. 250, 37 So.2d 118; Elmhurst v. Pearson, 80 U.S.App.D.C. 372, 153 F.2d 467. It was applied in the only two cases involving a television broadcast which have come to our attention, Gautier v. Pro-Football, Inc., 1952, 304 N.Y. 354, 107 N.E.2d 485; and Ettore v. Philco Television Broadcasting Corp., D.C.Pa.1954, 126 F.Supp. 143. And, since television is the latest medium for the dissemination of news, there is every reason for and no reason against applying to television news broadcasts the same rule.

We hold, then, that a television company-as in the case of a newspaper, newsreel, or other communication medium-has a qualified privilege to use in its telecast the name or photograph of a person who has become an 'actor' in a newsworthy event.

But the problem does not end here. Just what are the bounds of the privilege? When does a person become an 'actor' in a matter of public interest so as to justify an invasion of his or her privacy? Such questions will pose difficult problems in cases involving 'on-the-spot' television broadcasts, and these are discussed at some length by Warner in his work in 'Radio and Television Rights' (1953), Section 270, page 1129 et seq. He cites as an illustration the case (which has not yet reached the courts) of the football fan who attends a football game that is being telecast directly to the television audience, becomes intoxicated, gets into a fight, and is escorted from the stadium-all of which is recorded by the television camera. The annotator in 15 A.L.R.2d, at page 794, hypothesizes the situation of 'the businessman whose likeness, complete with blond companion, is reflected on his irate wife's television screen in a program from a sports event or night club, at a time when he is purportedly working late at the office.' These and similar situations will no doubt eventually find their way to the courts and, as stated by Warner in his work, ibid., will 'tax the ingenuity of the courts in balancing the private rights of an individual against the public rights of society.'

In Gautier v. Pro-Football, Inc., supra, 107 N.E.2d 485, 489, the New York court discussed 'the area of privacy which may not be invaded even in this modern era of television', as follows:

'One traveling upon the public highway may expect to be televised, but only as an incidental part of the...