dictionary

Jeffrey Toobin: Jennifer Aniston and the right to privacy

Jeffrey Toobin

Editor's Note: CNN Access is a regular feature on CNN.com providing interviews with newsmakers from around the world.

(CNN) -- Actress Jennifer Aniston is scheduled to testify in her lawsuit against magazine publishers who ran unauthorized pictures of her sunbathing topless in her backyard. The non-jury trial begins Tuesday in Los Angeles. CNN legal analyst Jeffrey Toobin spoke with CNN anchor Paula Zahn about the case.

PAULA ZAHN: Why should we care about this case, Mr. Toobin?

JEFFREY TOOBIN: Well, because she's a celebrity and we care about celebrities, their tragic plight. No, I mean, it is actually more interesting than I thought when I started looking into this. You'd think it's sort of straightforward, that there ought to be some rules about when you can take pictures and when you can't and how you can publish it.

Courts have actually been struggling with this exact issue for more than 20 years and they still can't come up with very clear rules that protect people's privacy and the rights of the press. So it's actually more murky than you think.

ZAHN: So help me better understand what the issue is here. Then she's not going to argue that her privacy was violated, that her right of publicity was violated? And what does that mean exactly?

LEGAL RESOURCES Latest Legal News Law Library FindLaw Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes

TOOBIN: Well, she made two claims originally. One is that her right to privacy was violated and the second was her right to publicity.

Let's talk about the right to publicity first. That means that no one can take a photograph of you without your permission and say Paula Zahn drinks Pepsi, so should you. It's basically commercial exploitation of your name. That's actually a pretty weak claim here because even though "High Society" is not what we think of as a great journalistic institution, it is a magazine and any sort of pulp photographs that are published but not in an advertisement generally don't involve the right to publicity. So that's one part of her claim.

The other part of her claim, and it seems like the more substantive one, is the right to privacy. And there the rules are a little murkier, but it makes a little more sense. If you have a reasonable expectation of privacy, if you are sunbathing in your backyard, for example ...

ZAHN: Topless or not topless.

TOOBIN: Topless or not, it's your own backyard. You can dress however you like. And someone takes a picture of you and then publishes it, that does seem like a right to privacy violation.

But there is a problem with Jennifer Aniston's lawsuit there. It's because these pulp photographs had been published elsewhere in really obscure European magazines first ...

ZAHN: And she never took them on the first time around?

TOOBIN: And she never took them on. So the magazine publishers are saying well, go sue them. Don't sue us. So that's one of the issues that's going to be dealt with in the courts.

ZAHN: But she can make the argument, can she not, that I didn't go after those obscure publications because the circulation is slow and low and none of my fans who watch "Friends" saw it over there and it had no negative impact on me?

TOOBIN: Or I didn't know or you should be responsible for what's published in your own magazine. That shouldn't be an excuse, that just because someone else did something wrong, you're allowed to do it, too. So those are some of the issues that will be involved in the trial today.

ZAHN: So what kind of precedent could be set here?

TOOBIN: Well, again, the rule might be, that could come out of this, is that magazine publishers are responsible for learning where photographs come from, that magazine publishers have some right to respect the rights of privacy, even of celebrities, even if the photos have been published first.

Or, it may be the sort of law of the jungle, tough luck for Jennifer Aniston. That's what they're going to decide.

ZAHN: What does it mean for all the shutterbugs out there who are paid handsomely to photograph celebrities in sort of ugly situations and beautiful situations?

TOOBIN: Well ... this is where the rules have become somewhat unclear. Going back to the late '60s when Jacqueline Kennedy moved with her family to New York after John F. Kennedy's assassination, there was a photographer named Ron Galella who followed her obsessively, really stalked her. And she went to court and got a court order saying that he had to stay 100 yards away from her and her kids, who were then little at the time.

An appeals court said 25 feet, not 100 yards. I mean these rules are just sort of made up on the spot. That's likely to be what's going to come out of this. I mean ... clear rules are not a likely result.