From the Summer 2002 issue of The News Media & The Law, page 47.
By Monica Dias
Two federal appeals courts hearing claims that a publication invaded a news subject’s privacy by portraying the person in a false light reached different conclusions in June.
Playgirl lost its attempt to keep a “Baywatch” actor’s lawsuit away from a jury. But a business reporter for The New York Times won her appeal of a trial court’s award of $480,000 in damages against her for reporting a rumor about a business executive.
Both rulings centered on actual malice — whether the reporter or publication knew the reports were false or acted with reckless disregard for the truth.
Court allows”Baywatch” actor to take Playgirl case to trial
“Baywatch” actor Jose Solano Jr. appeared bare-chested and wearing red swim trunks on the cover of the January 1999 issue of Playgirl magazine. Headlines promised “12 Sizzling Centerfolds Ready to Score with You” and “TV Guys. Primetime’s Sexy Young Stars Exposed.”
To Solano, the photo — which was used without his consent — and the headlines told readers that they could find nude pictures of him inside the magazine. He sued Playgirl, claiming the cover humiliated and embarrassed him and cost him job offers, invitations to charity events and social contacts.
A trial judge dismissed Solano’s lawsuit. But a panel of the U.S. Court of Appeals in Pasadena, Calif., (9th Cir.) overruled the trial judge on June 13 and decided a jury should hear Solano’s claims that the magazine portrayed him in a false light and misappropriated his image for profit.
A jury should decide whether the photo on the cover created a false impression and whether Solano, as a public figure, can prove that the editors entertained serious doubts about the truth of the publication, the appeals court ruled.
“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.
Solano must prove actual malice to win his false light claim. An associate editor testified in a deposition that a senior vice president had ordered the staff to “sex up” the January 1999 cover 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.
The appeals court also found that the trial judge prematurely dismissed Solano’s misappropriation claim. The trial judge found that the claim must fail because publication of the photo was newsworthy.
The appeals court ruled that the newsworthiness exception does not apply when actual malice is proven. Since Solano had established that actual malice was an issue, a jury should hear the misappropriation claim, the court ruled. (Solano v. Playgirl, Inc.)
Report of rumor not false light
A reporter does not act with actual malice when she reports a rumor, points out flaws in the rumor and does not decide whether the rumor is true or false, the U.S. Court of Appeals in Boston (1st Cir.) ruled on June 28.
The court ruled that a New Hampshire jury had improperly awarded $480,000 in damages to business executive Robert Howard, who had sued New York Times business reporter Susan Antilla for defamation and false light invasion of privacy.
In an article published on Oct. 27, 1994, Antilla reported a rumor circulating on Wall Street that Howard was actually convicted felon Howard Finkelstein.
After the story was published, Howard’s lawyers provided additional information that corroborated his denial of the rumor. Antilla also received a call from a former lawyer for Finkelstein who had not returned Antilla’s phone calls before the article was published. The lawyer told her that, based on the picture of Howard published with the story, the men were not the same person.
The Times published a correction and another story on Oct. 28, 1994. Howard sued, and although he won the false light claim at trial, the jury ruled against him on the defamation claim.
To win damages for false light, Howard had to prove that Antilla acted with actual malice. In overturning the false light verdict, the appeals court ruled that Antilla did not act with actual malice. Its finding turned on the way Antilla reported the rumor.
“Read as a whole, the article points out flaws in both sides of the story and never places the author in a position of evaluating the truth or falsity of any party’s account,” Judge Juan Torruella wrote for the three-judge panel. “In Antilla’s words, the article remained ‘agnostic’ with respect to the truth of the . . . rumor.”
Antilla included facts that supported the rumor, but she also explicitly stated that the story was a rumor and that the people spreading it had a profit motive, the court’s opinion says. The court noted her efforts to verify the rumor, including the numerous interviews she conducted and her attempts to seek independent confirmation from the Securities and Exchange Commission and Finkelstein’s lawyers.
“While Antilla was clearly stingy in providing facts from which a reader might infer that Howard was probably not Finkelstein, this is not enough to sustain the conclusion that her article intentionally or recklessly asserted that Howard was in fact Finkelstein,” the court stated. (Howard v. Antilla)