A California court addressed the question of liability for the unauthorized publication of a person’s photo.

Church Law and Tax2002-07-01


Key point 4-04. Many states recognize “invasion of privacy” as a basis for liability. Invasion of privacy may consist of any one or more the following: (1) public disclosure of private facts; (2) use of another person’s name or likeness; (3) placing someone in a “false light” in the public eye; or (4) intruding upon another’s seclusion.

Invasion of Privacy

* A California court addressed the question of liability for the unauthorized publication of a person’s photo, and concluded that a magazine was liable on the basis of "invasion of privacy" for publishing a photo of a boys’ baseball team in an article addressing the sexual molestation of children by coaches. In 1999 Sports Illustrated used the team photograph of a Little League team to illustrate stories about adult coaches who sexually molest youths playing team sports. The team’s coach ("Larry") was removed when parents learned that he had a long history of sexually molesting boys, beginning with a molestation conviction in 1971. Larry later pleaded guilty to molesting five boys during the two years he served as coach. Several of the boys and two coaches who appear in the photograph sued Sports Illustrated for invasion of privacy and infliction of emotional distress. The Sports Illustrated article, entitled "Every Parent’s Nightmare," recounted incidents of child molestation in youth sports. Using Larry as an example, the article reported that he had "pleaded guilty to 39 counts of lewd acts with children, four boys and a girl, that had occurred between 1990 and 1996, when he was a Little League coach and umpire and the five kids were all playing in the league." Larry was further described as having "spent most of his 54 years sexually preying on children … most of … whom he first met through his work in Little League." Accompanying the article was the team photograph that bore the team’s name and location. The Sports Illustrated article did not name any of the people shown in the team photograph except Larry. The article did not identify any of Larry’s victims by name. Two victims were identified by pseudonyms.

A trial court rejected a request by Sports Illustrated to dismiss the case. An appeals court agreed that the case should not be dismissed. It observed, "Fundamentally, the right of privacy means the right to be left alone …. The general common-law right of privacy demonstrates that invasion of privacy may [occur] if an article about sexual molestation is juxtaposed with an illustrative photograph that makes a negative association between the subject matter and the subjects of the photograph. That is precisely what occurred here." On the other hand, a reprint of a photograph, published independently of the offending article, would not be an invasion of privacy because the photograph would be published "without an offensive text accompanying it." As a result, the court concluded that the plaintiffs who were depicted in the photograph had a viable invasion of privacy claim. The court defined invasion of privacy to include the following elements: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern. Sports Illustrated conceded that disclosure of information connecting a person with sexual molestation may offend a reasonable person. But it insisted that the photograph in this case was not "private" and was a matter of legitimate public concern. The photograph was not private because the people depicted had played a public sport and the team photograph was taken on a public baseball field. Furthermore, during the two years after Larry’s misdeeds were uncovered, it had been widely reported that he had coached a Little League team, and the team’s name and location were occasionally mentioned. As a result, the Sports Illustrated photograph merely disclosed information that was already publicly known.

The court concluded that the information depicted in the photograph was private since the plaintiffs’ membership on Larry’s Little League team had not been publicly known for two years. Sports Illustrated, the court reasoned, "equates private with secret and urges any information not concealed has been made public …. Information disclosed to a few people may remain private… . None of the previous media coverage specifically identified plaintiffs as team members. Nor is there evidence in the record that the team photograph was ever widely circulated …. The plaintiffs maintain the photograph was intended to be private, only for dissemination among family and friends. Although plaintiffs do not know how Sports Illustrated acquired the photograph, they never consented to its use …. The record supports plaintiffs’ contention that their membership on Larry’s Little League team was a private fact first publicly disclosed by Sports Illustrated." The court also concluded that the photograph was not a matter of public concern.

The court concluded that Sports Illustrated may have been guilty of another form of invasion of privacy that is known as "false light." A false light claim requires proof that a person is portrayed in a false light in the public eye in a way that would be offensive to a reasonable person. The court concluded that the players in the photograph who had not been molested could pursue a false light invasion of privacy claim against Sports Illustrated, since the public would assume that they had been molested by Larry. Further, the two coaches (other than Larry) could maintain a false light claim since the public might assume that they were molesters.

Application. Many churches publish photographs of members in pictorial directories, brochures, slides, or on web sites. As this case illustrates, such photos may expose a church to liability based on an invasion of privacy if a photo is associated with potentially negative text. For example, a photo of children on a church’s web site accompanying an article or caption about victims of child molestation may constitute an invasion of privacy, as would a photo of adults accompanying an article or caption about the need to protect children from child molesters. M.G. v. Time Warner, 107 Cal. Rptr.2d 504 (Cal. App. 2001).

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