|NMU||NINTH CIRCUIT||Privacy||Jun 19, 2002|
Court revives ‘Baywatch’ actor’s privacy suit against Playgirl
- Jose Solano Jr. claimed a Playgirl cover misled readers into thinking that nude pictures of him appeared inside the magazine.
A former “Baywatch” actor who claimed Playgirl falsely implied that he posed nude for the magazine can take his invasion of privacy case to trial, a federal appeals court ruled June 13.
The U.S. Court of Appeals in Pasadena, Calif., (9th Cir.) overruled a trial judge and held that a jury should hear actor Jose Solano Jr.’s false light and misappropriation claims against Playgirl.
The January 1999 issue of the magazine featured a bare-chested Solano in red lifeguard trunks. A headline across the top of the magazine said: “TV Guys. Primetime’s Sexy Young Stars Exposed.” A headline on the left side of the cover said: “12 Sizzling Centerfolds Ready to Score with You.” The “s” in “centerfolds” was superimposed on Solano’s shoulder.
A headline at the bottom of the cover said: “Baywatch’s Best Body Jose Solano.”
Solano did not pose for Playgirl or give an interview to the magazine. A short profile of the actor appeared on Page 21, where a head-and-shoulders photo showed him in a T-shirt and sweater.
Solano claimed he was humiliated and embarrassed by the cover. Job offers, invitations to charity events and social contacts declined after the issue hit the stands, he claimed.
A trial judge dismissed the case, finding that the use of Solano’s photo on the cover did not create a false impression and that Solano, as a public figure, could not prove that the editors entertained serious doubts about the veracity of the publication.
The appeals court ruled that a jury should decide those issues.
“A jury reasonably could conclude that the Playgirl cover conveyed the message that Solano was not the wholesome person he claimed to be, that he was willing to — or was ‘washed up’ and had to — sell himself naked to a women’s sex magazine,” Judge Raymond C. Fisher wrote for the three-judge panel.
To win a false light claim, Solano had to prove actual malice, meaning that Playgirl editors knew the cover created a false impression or acted with reckless disregard for the truth. An associate editor testified that a senior vice president had ordered the staff to “sex up” the January 1999 to imply nudity. Concerns were raised in editorial meetings that the cover implied that Solano appeared nude inside the magazine, the associate editor testified.
Based on that testimony, “a jury could conclude Playgirl‘s editors knowingly or recklessly published the misleading cover,” the appeals court held.
In his misappropriation claim, Solano argued that the magazine had used his photograph without his consent. The trial court ruled that the misappropriation claim failed because a magazine may publish a truthful, newsworthy use of a person’s image if it is a matter of public interest.
But the appeals court held that the trial judge prematurely dismissed the misappropriation claim. The newsworthiness exception does not apply when actual malice is proven, the appeals court noted. Since Solano had established a genuine issue regarding actual malice, a jury should hear the misappropriation claim, the court ruled.
(Solano v. Playgirl, Inc.; Media counsel: Kent R. Raygor, Sheppard, Mullin, Richter & Hampton, Los Angeles) — MD
© 2002 The Reporters Committee for Freedom of the Press