Florida: Statutory Civil Law

Florida Constitutional Right to Privacy
Unauthorized Publication

Florida Constitutional Right to Privacy
1. Introduction
  
  Florida’s Constitution explicitly recognizes a right to individual privacy.¹ A likely problem for a victim of a privacy violation, however, is that this law has been interpreted to protect a person only from invasions of privacy into their personal affairs by the State (e.g., interference through government action), rather than by other private parties. The law is mostly referenced in cases centered on alleged warrantless searches, which is probably not relevant to a WMC plaintiff. Florida’s constitutional right to privacy has been interpreted as providing broader protections than the federal Constitution.²
2. Text of Statute
  
  Fla. Const. Art. I, § 23 – Right of privacy.
  
  Every natural person has the right to be left alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.
3. Cases
  
  Research is ongoing. Although cases providing limited guidance are cited below, most of the Florida authority citing Florida’s Constitutional right to privacy would be irrelevant to a WMC plaintiff.
  1. A.H. v. State, 949 So. 2d 234 (Fla. Dist. Ct. App. 2007)
    - Procedural Posture:
    - Law: Florida Const. Art. I, § 23; Fla. Stat. § 827.071³
    - Facts: A sixteen-year-old female plaintiff was charged under Fla. Stat. § 827.071 after videotaping herself engaged in a sexual act with her seventeen-year-old boyfriend and emailing the photos to another computer. Female plaintiff moved to dismiss, arguing that the statute was unconstitutional as applied to her both because she was younger than the alleged “victim,” and because “criminal prosecution was not the least intrusive means of furthering a compelling state interest.”⁴ The trial court denied the motion, holding that the state had met its burden of proving compelling state interest/least intrusive means because “[n]ot prosecuting the child would do nothing to further the State’s interest. Prosecution enables the State to prevent future illegal, exploitative acts by supervising and providing any necessary counseling to the child.”⁵ On appeal, plaintiff alleged that the statute was unconstitutional as applied to her because the Florida Constitution protects a minor’s right to have sexual intercourse, and the right of privacy extends to situation in which a minor memorializes a sexual act through photos or video.⁶
    - Outcome: The court affirmed the lower court’s decision, because “[t]he mere fact that the defendant may have subjectively believed the pictures would remain private does not control; it is whether society is willing to recognize an objective expectation.”⁷ The fact that the photos were not shown does not affect “the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point take these photos public.”⁸ Moreover, the state determined that it had a compelling interest in securing the material in question because it was interested in preventing the distribution of child pornography.⁹
    - Special Notes: Dissenting opinion strongly criticized the majority, arguing that Fla. Stat. § 827.071 was designed to protect children, not punish them. Thus, where the plaintiff had “intended to keep the photographs private” and did not “[a]ttempt to exploit anyone or embarrass anyone,” the court found that she had a reasonable expectation of privacy in the photographs.¹⁰ at 240 (J. Padovano, dissenting).
  2. Resha v. Tucker, 670 So. 2d 56 (Fla. 1996)
    - Procedural Posture: Court granted review to consider whether a cause of action exists under Florida’s constitutional guarantee of freedom from government intrusion into private life.
    - Law: Florida Const. Art. I, § 23
    - Facts: Plaintiff taxpayer sued executive director of Florida’s Department of Revenue for defamation and invasion of privacy. While in office, defendant allegedly made statements to her staff and agents, indicating that plaintiff’s family was involved in organized crime, and that plaintiff himself was involved in porn, drugs, arms sales, and money laundering. Defendant also initiated a department investigation and audit of plaintiff and his two Tallahassee businesses, which revealed nothing more than a $500 tax liability for one of the businesses. Based on these facts, plaintiff sued defendant, alleging that defendant’s statements were defamatory, and that the audit was an invasion of privacy that violated his right to privacy guaranteed under Florida’s constitution. The jury ruled for plaintiff, and found that defendant was not acting within the scope of her duties.
    - Outcome: On review, the court dismissed, and held that “no cause of action for governmental intrusion exist[ed] because [plaintiff’s] claim alleging that [defendant] had acted beyond the scope of her duties was against [defendant] individual rather than against the state.”¹¹
    - Special Notes: “[I]f a state employee acts beyond the scope of his or her duties, the employee’s actions amount to individual intrusion rather than the governmental intrusion against which” article 1, section 23 of the Florida Constitution protects.¹²
  3. Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So. 2d 544 (Fla. 1985)
    - Procedural Posture: Florida Supreme Court certified two questions for review arising from plaintiffs’ suit alleging violations of the Florida Constitutional right to privacy.
    - Law: Florida Const. Art. I, § 23
    - Facts: Government subpoenaed plaintiffs’ individual bank records as part of an investigation and gave no notice of the subpoenas to petitioners, while concurrently asking the banks not to inform the plaintiffs of the investigation. Plaintiffs sued for violations of their right to privacy.
    - Outcome: The court held that Florida’s constitutional right to privacy does not prevent the Division of Pari-Mutuel Wagering from subpoenaing a Florida citizen’s bank records without notice because the information in question was essential to the government’s inquiry. The court found that the agency had satisfied its burden of establishing a compelling state interest, and that the subpoenas were the least intrusive means to obtain the information in question.
    - Special Notes: The court explained that although the right to privacy did not provide plaintiffs with the protection they sought in his case, Florida’s constitutional right to privacy is “much broader in scope than that of the Federal Constitution,”¹³ and unlike under federal law, a plaintiff need only show an intrusion, rather than an “unwarranted/unreasonable” intrusion.¹⁴
4. Practice Pointers
  
  This constitutional clause is most often cited in the context of motions to suppress following alleged warrantless searches by the State, and it will likely not be a useful tool for a WMC victim. However, it does highlight Florida’s strong interest in the right to privacy, and case law could develop to recognize privacy as a realm of personal information that should not be open to public scrutiny.
1. Fla. Const. Art. I, § 23. ↩
2. Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So. 2d 544, 548 (Fla. 1985). ↩
3. Fla. Stat. § 827.071 is a criminal statute prohibiting production, direction or promotion of a photograph/representation including sexual conduct of a child. ↩
4. A.H. v. State, 949 So. 2d 234, 235 (Fla. Dist. Ct. App. 2007). ↩
5. Id. ↩
6. Id. at 236. ↩
7. Id. at 238. ↩
8. Id. ↩
9. Id. ↩
10. Id. ↩
11. Resha v. Tucker, 670 So. 2d 56, 59 (Fla. 1996). ↩
12. Id. at 59. ↩
13. Winfield, 477 So. 2d at 548. ↩
14. Id. ↩
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Unauthorized Publication
1. Introduction
  
  The statute recognizes a property right in one’s likeness/image. A WMC victim could try to use the statute to prevent someone from using the victim’s likeness without his or her knowledge or permission for a commercial purpose.
2. Text of Statute
  
  1) Fla. Stat. § 540.08 – Unauthorized publication of name or likeness.
  
  (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by: (a) Such person; or (b) Any other person, firm or corporation authorized in writing by such person to license the commercial use of her or his name or likeness; or (c) If such person is deceased, any person, firm or corporation authorized in writing to license the commercial use of her or his name or likeness, or if no person, firm or corporation is so authorized, then by any one from among a class composed of her or his surviving spouse and surviving children.
  
  (2) In the event the consent required in subsection (1) is not obtained, the person whose name, portrait, photograph, or other likeness is so used, or any person, firm, or corporation authorized by such person in writing to license the commercial use of her or his name or likeness, or, if the person whose likeness is used is deceased, any person, firm or corporation having the right to give such consent, as provided hereinabove, may bring an action to enjoin such unauthorized publication, printing, display or other public use, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.
  
  (3) If a person uses the name, portrait, photograph, or other likeness of a member of the armed forces without obtaining the consent required in subsection (1) and such use is not subject to any exception listed in this section, a court may impose a civil penalty of up to $1,000 per violation in addition to the civil remedies contained in subsection (2). Each commercial transaction constitutes a violation under this section. As used in this section, the term “member of the armed forces” means an officer or enlisted member of the Army, Navy, Air Force, Marine Corps or Coast Guard of the United States, the Florida National Guard, and the United States Reserve Forces, including any officer or enlisted member who died as a result of injuries sustained in the line of duty.
  
  (4) The provisions of this section shall not apply to: (a) The publication, printing, display or use of the name or likeness of any person in any newspaper, magazine, book, news broadcast, or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes; (b) The use of such name, portrait, photograph, or other likeness in connection with the resale or other distribution of literary, musical, or artistic productions or other articles of merchandise or property where such person has consented to the use of her or his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof; or (c) Any photograph of a person solely as a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photograph.
  
  (5) No action shall be brought under this section by reason of any publication, printing, display or other public use of the name or likeness of a person occurring after the expiration of 40 years from and after the death of such person.
  
  (6) As used in this section, a person’s “surviving spouse” is the person’s surviving spouse under the law of her or his domicile at the time of her or his death, whether or not the spouse has later remarried; and a person’s “children” are her or his immediate offspring and any children legally adopted by the person. Any consent provided for in subsection (1) shall be given on behalf of a minor by the guardian of her or his person or by either parent.
  
  (7) The remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of her or his privacy.
3. Cases
  1. Facchina v. Mut. Benefits Corp., 735 So. 2d 499 (Fla. Dist. Ct. App. 1999)
    - Procedural Posture: On appeal from dismissal of claims under economic loss rule (“ELR”) because the plaintiff model had a contract with the purchaser
    - Law: Fla. Stat. § 540.08; Defamation; Invasion of privacy
    - Facts: Plaintiff, an aspiring male model signed over the rights to his picture to a Broward County Florida company called Mutual Benefits Corp. for $100 in a release. Defendants told him they would use the photos in advertisements for insurance policies. However, his photo began appearing in many magazines targeting a homosexual male audience, including Hotspots and Scoop, which were distributed free in South Florida gay bars, and featured male nudity, graphic promotions for wet jockey-short contests, drag shows and sado-masochism. The ads were for the Viatical Benefits Foundation rather than conventional insurance, noting “If You Are Ill and Money Has Become a Concern,” and stating “Local Gay Owned and Operated.” Because the ads suggested that plaintiff was a homosexual male dying of AIDS, plaintiff sued for relief, but the lower court dismissed the case because Facchina had signed a release.
    - Outcome: The court reversed and found for plaintiff. The court held that the fact that Facchina had signed a release did not mean that his claim was barred by the ELR because “Plaintiff’s claim for unauthorized use is based not on tort or contract law, but on a statutory right,” to prevent the unauthorized use of his likeness in ads directed to homosexuals with AIDS.¹ The court specifically limited its holding to the ELR only, however. The court also explained that even though the parties had a contract, plaintiff could not possibly have covered by “appropriate contractual language” all the issues under which “a publication . . . may nevertheless offend some undiscussed or unreferenced privacy interest. Under the unique circumstances of this case, we think that it is not realistic to anticipate that an authorized publication for advertising purposes may be used as it was here. Therefore, we hold that ELR does not alone bar the claim.”²
    - Special Notes: The holding was specifically limited to “the unique circumstances of this case,” so it’s difficult to determine the case’s precedential value in other factually similar cases involving a plaintiff who signed a release and the ELR.
  2. Genesis Publ’n, Inc. v. Goss, 437 So. 2d 169 (Fla. Dist. Ct. App. 1983)
    - Procedural Posture: On appeal from jury award of $100K damages and $400K punitive damages for an invasion of privacy action arising from the publication of a nude photograph of plaintiff in a commercial advertisement.
    - Law: Fla. Stat. § 540.08; Common law invasion of privacy
    - Facts: Photographer photographed plaintiff at her request because she wanted images to use to help her begin a modeling career. Without the plaintiff’s consent, the photographer gave the nude photos to the defendant, an advertising agency, to use in various commercial advertisements, and one of the photographs was published in defendant’s magazine. The jury awarded plaintiff $100K in compensatory damages and $400K in punitive damages. Defendants appealed.
    - Outcome: The court affirmed the award of compensatory damages but reversed the award of punitive damages, holding that there was insufficient evidence that defendants’ conduct was in wanton disregard of plaintiff’s rights.
    - Special Notes: “The terms ‘recklessness, wantonness, and willfulness,’ when used to justify punitive damages implies a knowledge and present consciousness not simply that a statute or right will be violated, but that injury will result.”³
  3. Miller v. Anheuser Busch, Inc., 348 F. App’x 547 (11th Cir. 2009)
    - Procedural Posture: Plaintiff appealed from lower court decision granting defendant advertiser’s motion for summary judgment on her action alleging commercial misappropriation and copyright infringement arising from the use of her likeness. The lower court had held her claims barred by the release, and time-barred under the single publication rule.
    - Law: Fla. Stat. § 540.08; Copyright infringement
    - Facts: Plaintiff signed a release allowing defendant to use her likeness for advertising until 2003, but she claimed that they unlawfully used her image after that date. She argued that the lower court erred in finding her claim time-barred.
    - Outcome: The court reversed for plaintiff as to all claims arising from the use of plaintiff’s image after 2003 (when the release expired), but affirmed as to all earlier claims, since they were barred by the release.
    - Special Notes: The court held that because Fla. Stat. § 540.08 does not provide its own limitations, claims under the statute are governed by the four-year “catch-all” provision under Fla. Stat. § 95.11(3). Moreover, the statute of limitations did not accrue until the first unauthorized use, which occurred after January 2003—the date of the first unauthorized publication triggering the four-year limitations provision. The court found improper, the lower court’s decision to apply a “first publication” date falling within the period of authorized use, notwithstanding subsequent unauthorized use, because to do so “ignore[d] the express language of the misappropriation statute as well as its intended purpose.”⁴
  4. Rosko v. Times Publ’g Co., Inc., No. 90-016311-17, 1991 WL 324792 (Fla. Cir. Ct. Nov. 1, 1991)
    - Procedural Posture: On motion for summary judgment by defendant publishing company and photographer
    - Law: Fla. Stat. § 540.08
    - Facts: Plaintiff, a model, posed for professional photographs taken by defendant photographer. The photographs were used in newspaper advertisements for a local nightclub, which touted “Wild Women of Oil-W.W.O.” and a “Wet T-Shirt Contest.” Plaintiff argued that the advertisement violated Fla. Stat. § 540.08 because Fla. Stat. § 540.10—the news media exemption—provided the defendant with a complete defense.
    - Outcome: The court granted summary judgment for newspaper publishing company, but denied it as to the photographer, because the media’s actions here were protected under Section 540.10, which expressly exempts news media from liability under Section 540.08.
    - Special Notes: Section 540.10 states that no relief can be obtained under Section 540.08 against “any broadcaster, publisher, or distributor broadcasting, publishing or distributing paid advertising matter by radio or television or in a newspaper, magazine, or similar periodical without knowledge or notice that any consent required by s. 540.08 or 540.09 in connection with such advertising matter has not been obtained, except an injunction against the presentation of such advertising matter in future broadcasts or in future issues of . . . periodical.”⁵
  5. Putnam Berkley Group, Inc. v. Dinin, 734 So. 2d 532 (Fla. Dist. Ct. App. 1999)
    - Procedural Posture: On appeal from jury verdict granting plaintiff relief from allegedly unauthorized identification.
    - Law: Fla. Stat. § 540.08
    - Facts: Plaintiff, a woman who was the subject of a photograph first published in a book in Florida in 1988, later sued the photographer and publisher in 1995 for damages for unauthorized publication under the Florida statute.
    - Outcome: The court reversed the lower court judgment on jury verdict granting plaintiff relief for alleged unauthorized publication. The court determined that plaintiff’s claim was time-barred under the applicable statute of limitations, because there is no rule that says that plaintiff’s claim under the statute only accrues once she discovers the unauthorized photo.
  6. Loft v. Fuller, 408 So. 2d 619, 622 (Fla. Dist. Ct. App. 1981)
    - Procedural Posture: Appeal by surviving spouse and children of decedent pilot of a famous 1972 flight crash from an order dismissing with prejudice their second and third amended complaints seeking injunctive relief/damages against appellees for alleged unauthorized publication of the name and likeness of plaintiffs’ deceased husband and father, for invasion of privacy incidental to the publication, and for intentional infliction of emotional distress from referring to Mr. Loft as a “reappearing ghost” in a book and a movie.
    - Law: Invasion of privacy; Fla. Stat. § 540.08; Intentional infliction of emotional distress
    - Facts: Decedent was the pilot of Eastern Airlines Flight 401, which famously crashed en route from New York to Miami in 1972. Following the crash, defendant author wrote a book entitled The Ghost of Flight 401, which was then made into a movie. The book and movie reported run-ins of crew members with ghosts, etc., and the story became media fodder. Plaintiffs, the spouse and children of the decedent pilot, sued the author alleging invasion of privacy under both Florida statutory and common law.
    - Outcome: The court affirmed the lower court’s dismissal of the amended complaints with prejudice because the relatives of the deceased “have their own privacy rights in protecting their rights in the character and memory of the deceased as well as the right to recover for their own humiliation and wounded feeling.”⁶ The court found that the appellants did not state a cause of action for invasion of privacy because there were no facts alleged showing that defendant used slanderous conduct
    - Special Notes: One judge concurred, but noted that the standing burden should not “be any heavier than the norm for an invasion of right to privacy,” since the Florida legislature arranged for Section 540.08 to grant standing to close relatives, indicating that the Legislature is receptive to the view that the standing issue should be expanded beyond the traditional common law limiting the right to a personal one.”⁷
4. Practice Pointers
  
  One key issue for plaintiffs asserting a claim under Florida’s statutory misappropriation law is that he or she must be able to prove that the defendant used his or her image “for the purpose of directly promoting a product or service” in violation of the law. For instance, in Almeida v. Amazon.com, Inc., the court affirmed summary judgment for Amazon on a plaintiff’s state commercial misappropriation claim against Amazon where it found no evidence that Amazon’s marketing and offering of the book on its web-site amounted to actually “promoting a product or service.”⁸ The court explained that “Amazon’s use of book cover images closely simulates a customer’s experience browsing book covers in a traditional book store,” and “it is clear that Amazon’s use of book cover images is not an endorsement or promotion of any product or service, but is merely incidental to, and customary for, the business of internet book sales.”⁹
1. Facchina v. Mut. Benefits Corp., 735 So. 2d 499, 502 (Fla. Dist. Ct. App. 1999). ↩
2. Id. at 503-04. ↩
3. Genesis Publ’n v. Goss, 437 So. 2d 169, 171 (Fla. Dist. Ct. App. 1983). ↩
4. Miller v. Anheuser Busch, Inc., 348 F. App’x 547, 551 (11th Cir. 2009). ↩
5. Fla. Stat. § 540.10. ↩
6. Id. at 624. ↩
7. Id. at 625 (Hersey, J., concurring). ↩
8. Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1326 (11th Cir. 2006). ↩
9. Id. ↩
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Florida: Statutory Civil Law

Contents

Florida Constitutional Right to Privacy

Unauthorized Publication