Private viewing: is unauthorized use of a team photo an invasion of privacy?

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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