Private viewing: is unauthorized use of a team photo an invasion of privacy? – NRPA Law Review
James Kozlowski
Recently, I received an inquiry regarding the unauthorized use of photographs as a basis for an invasion of privacy claim. As illustrated by the case of M. G. v. Time Warner, Inc., 89 Cal. App. 4th 623, l07 Cal. Rptr. 2d 504 (Cal. App. Dist. 4 05/30/2001), an invasion of privacy claim may arise from public disclosure of a private fact that would be offensive and objectionable to a reasonable person and that is not of legitimate public concern.
In this case, former players and coaches on a Little League team claimed an invasion of privacy arising out of the use of a team photo in a Sports Illustrated article and an HBO television program on child molestation in youth sports. The facts of the case were as follows:
In September 1999, Sports Illustrated and
an HBO television program, Real Sports,
used the 1997 team photograph of a Little
League team to illustrate stories
about adult coaches who sexually molest
youths playing team sports. Plaintiffs, all
of whom appear in the photograph, were
formerly players or coaches on the Little
League team. The team’s manager, Norman
Watson, pleaded guilty to molesting
five children he had coached in Little
League.
The 10 plaintiffs were eight players and
two coaches for a Little League team in
Highland, Calif. Norman Watson was
the team’s manager in 1996 and 1997,
until it was discovered in September
1997 that he had a long history of sexually
abusing children, beginning with a
molestation conviction in 1971. Watson
pleaded guilty in April 1998.
In September 1999, Sports Illustrated published
a cover story, “Every Parent’s
Nightmare,” on incidents of child molestation
in youth sports. Using Watson as
one example, the article reported Watson
had “pleaded guilty to 39 counts of
lewd acts with children, four boys and a
girl, that had occurred between 1990 and
1996, when Watson was a San Bernardino
Little League coach and umpire and
the five kids were all playing in the
league.” Watson was further described as
having “spent most of his 54 years sexually
preying on children … [m]ost of …
whom he first met through his work in
Little League.”
Accompanying the article was a team
photograph of 18 people, including the
10 plaintiffs in this case. The photograph
featured a sign board reading: “East
Baseline S– P– 1997.” [The court
used only the team’s initials to “preserve
its members from further notoriety.”]
The photograph also bore a caption: “A
fixture Watson (center, in black) coached
for years not far from a hospital where
he’d been incarcerated as a molester.”
Also in September 1999, HBO broadcast
a similar report on child molesters in
youth sports. The story discussed Watson
and his involvement with plaintiffs’
team. The story employed a fleeting shot
of the team photograph.
The Sports Illustrated article and the
HBO program did not name any of the
people shown in the team photograph
except Watson. The article did not identify
any of Watson’s victims by his or
her real name. Two victims were identified
by pseudonyms. One player, who is
not a plaintiff, was interviewed on the
HBO program, apparently using his real
name. According to their declarations
opposing the motion to strike, four of
the eight player-plaintiffs had been
molested by Watson and four had not.
The plaintiffs filed suit against Time Warner for invasion of privacy. The trial court rejected Time Warner’s motion to dismiss the plaintiffs’ claims. Time Warner appealed.
As described by the appeals court, “the right of privacy means the right to be left alone.” Further, in a case involving unauthorized use of a photograph, the court noted that a claim for invasion of privacy may be upheld where “the public interest did not require the use of any particular person’s likeness nor that of plaintiffs without their consent.” Moreover, in this instance, the court found plaintiffs had a viable claim for invasion of privacy claim because the article about sexual molestation was “juxtaposed with an illustrative photograph that makes a negative association between the subject matter and the subjects of the photograph.”
Legitimate Public Concern?
According to the court, the public interest may require the use of any person’s likeness when the unauthorized use of a photograph involves a matter of “legitimate public concern.'” In determining whether a particular matter involves a legitimate public concern, the court would subject the facts at issue to a three-part “news-worthiness” test. This test considers the social value of the published facts, the depth of intrusion into ostensibly private affairs, and whether the person acceded voluntarily to a position of public notoriety.
Time Warner didn’t dispute the plaintiffs’ assertion that “disclosure of information connecting a person with sexual molestation potentially may offend a reasonable person.” Time Warner, however, maintained that “the photograph of plaintiffs was not private and its publication met the test of newsworthiness.” Specifically, Time Warner contended that that unauthorized use of the team photograph didn’t constitute publication of a private fact because the “plaintiffs had played a public sport and the team photograph had been taken on a public baseball field.” Moreover, Time Warner claimed that “use of the team photographs disclosed only information that was already publicly known.”
The corporation noted that “during the two years after Watson was found out, it had been widely reported that Watson had coached a Little League team, occasionally identified as the S– P–, and that Watson had admitted molesting Little League players.”
In response, the plaintiffs countered that “their identities, as coaches or players on Watson’s team, were not revealed in any of the coverage of the Watson case until the publication of the team photograph, an event which publicly linked plaintiffs with child molestation as either victims, perpetrators or collaborators.”
All the player-plaintiffs submitted declarations
in which they stated that, immediately
after the article and the program
appeared, they were teased and harassed
at school and called “gay,” “faggot,”
“queer” and one of “Norm’s boys.” As a
consequence, the players’ academic performances
suffered. Some of them were
forced to quit school, to transfer or to be
home-schooled.
The two coach-plaintiffs have stated
they were “ridiculed, questioned and
harassed” and received crank phone calls
accusing them of being molesters or of
condoning molestation.
The court agreed with the plaintiffs. In so doing, the court rejected Time Warner’s assertion that the “plaintiffs’ membership on Watson’s Little League team had been publicly known for two years.”
In the present case, none of the previous
media coverage specifically identified
plaintiffs as team members. Nor, as the
trial court observed, is there evidence in
the record that the team photograph
was ever widely circulated.
Time Warner apparently equates “private”
with “secret” and urges any information
not concealed has been made
public. But the claim of a right of privacy
is “not so much one of total secrecy
as it is of the right to define one’s circle
of intimacy–to choose who shall see
beneath the quotidian mask.” Information
disclosed to a few people may
remain private.
Plaintiffs maintain the photograph was
intended to be private, only for dissemination
among family and friends.
Although plaintiffs do not know how
Time Warner acquired the photograph,
they never consented to its use.
Accordingly, the appeals court found that the evidence before the trial court supported the “plaintiffs’ contention that their membership on Watson’s Little League team was a private fact first publicly disclosed by Time Warner.”
Editorial Deference?
On appeal, Time Warner had also argued that the trial court was precluded from making editorial judgment about news content and whether use of the photograph was newsworthy. The appeals court conceded that “courts do not, and constitutionally could not, sit as superior editors of the press.”
Regarding the concept of newsworthiness,
… the courts must accord great deference
to editorial decisionmaking in
matters involving legitimate public
interest but that newsworthiness can be
limited in the proper circumstances.
In general, it is not for a court or jury to
say how a particular story is best covered.
The constitutional privilege to
publish truthful material ceases to operate
only when an editor abuses his broad
discretion to publish matters that are of
legitimate public interest. By confining
our interference to extreme cases, the
courts avoid unduly limiting the exercise
of effective editorial judgment.
On the other hand, the appellate court acknowledged that “no mode of analyzing newsworthiness can be applied mechanically or without consideration of its proper boundaries.”
To observe that the newsworthiness of
private facts about a person involuntarily
thrust into the public eye depends, in the
ordinary case, on the existence of a logical
nexus between the newsworthy event
or activity and the facts revealed is not
to deny that the balance of free press and
privacy interests may require a different
conclusion when the intrusiveness of the
revelation is greatly disproportionate to
its relevance.
Intensely personal or intimate revelations
might not, in a given case, be considered
newsworthy, especially where
they bear only slight relevance to a topic
of legitimate public concern.
Time Warner had offered the following justification to establish the newsworthiness of showing the faces of the Little League team members:
By showing visually that any child who
plays sports could be placed in harm’s
way, the team photos underscore the
warnings of the experts featured in the
article and broadcast.
In light of the evidence in the case, however, the appeals court found, that the assertion of newsworthiness rang hollow. In the opinion of the court, the following reasoning supported the plaintiffs’ position that unauthorized publication of the team photograph “showing their faces was not a legitimate public concern and not newsworthy.”
State law contains many statutes prohibiting
the disclosure of the identity of
both minors and victims of sex crimes.
Public policy favors such protection–as
does the journalism profession. Plaintiffs
supplied declarations from two journalism
experts in which they confirm
that use of the faces of the team members
was not consonant with journalistic
standards and practices. Plaintiffs also
submitted examples of how the faces in
the team photograph could have been
obscured. Furthermore, the article and
the program in themselves demonstrate
the team members’ faces should have
been concealed.
Although the program showed footage
of boys playing baseball, it did not show
their faces but photographed them without
their faces showing. In the program
and the article, the victims were given
pseudonyms unless they consented to
using their real names. Nor is this case
analogous to one in which a news documentary
used the first name of a rape
victim and a picture of her house. The
intrusion here, in which the children’s
faces were revealed, is far greater and
outweighs the values of journalistic
impact and credibility.
Accordingly, the court found that the plaintiffs had alleged sufficient facts to establish that the private fact of their membership on Watson’s team was not newsworthy. The appeals court, therefore, affirmed the judgment of the lower court, which had denied Time Warner’s motion to dismiss the case. As a result, the plaintiffs were permitted to proceed to trial to prove their invasion of privacy claims to a jury.
Dr. Kozlowski is an associate professor in the health, fitness and recreation resource program at George Mason University, in Fairfax, Va., and legal/legislative counsel to the NRPA Division of Public Policy. He can be reached at jkozlows@gmu.edu or http: //mason.gmu.edu/~jkozlows.
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