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Misidentified photo of gay man not defamatory

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  1. Libel and Privacy
NEWS MEDIA UPDATE   ·   FIRST CIRCUIT   ·   Libel   ·   June 8, 2005

NEWS MEDIA UPDATE   ·   FIRST CIRCUIT   ·   Libel   ·   June 8, 2005

Misidentified photo of gay man not defamatory

  • A photograph of a gay man wrongly identified in its caption as portraying another man who is not gay is not defamatory, the U.S. Court of Appeals in Boston ruled.

June 8, 2005  ·   Pop star Madonna’s former bodyguard and lover was not defamed by a photograph of a gay man that was mistakenly captioned as portraying the bodyguard, the U.S. Court of Appeals in Boston (1st Cir.) ruled Friday.

The photograph, included in the 2001 book Madonna by Andrew Morton, depicted the pop star and one of her dancers, José Guitierez. The photo’s caption mistakenly stated: “Madonna attends ex-lover Prince’s concert with her secret lover and one-time bodyguard Jimmy Albright (left ). Albright, who bears an uncanny resemblance to Carlos León, the father of Madonna’s daughter, enjoyed a stormy three-year relationship with the star. They planned to marry, and had even chosen names for their children.”

“The miscaptioned photograph in the instant case is not reasonably susceptible of a defamatory meaning. Nothing in Guitierez’s appearance, particularly given the accompanying caption stressing Albright’s heterosexuality (e.g., Madonna’s “secret lover”), gives any indication that Albright is homosexual,” Judge Juan R. Torruella wrote for a three-judge appellate panel that affirmed U.S. District Judge Nancy Gertner’s May 2004 dismissal of the case.

Citing the requirements of Massachusetts’ defamation law, Torruella ruled that to “draw such an inference, the reader–who would have to view homosexuals with ‘scorn, hatred, ridicule or contempt,’–must follow Madonna and her cohort closely enough to recognize Guitierez as a gay man, but not closely enough to know Guitierez’s name or what Albright looks like. Few, if any, readers would fall into this ‘considerable and respectable segment in the community.”

Albright and his employer, Amrak Productions, sued Morton, the book’s publishers and two magazines, People and News of the World, which reprinted the photo and caption. Albright alleged that Guitierez was an “outspoken homosexual” and that the caption defamed Albright by identifying him as gay. Albright also alleged false light invasion of privacy and other related claims.

The Court of Appeals affirmed the dismissal of the related claims, noting that Massachusetts does not recognize claims for false light invasion of privacy. Because the photograph and caption did not identify Albright as gay, the court declined to decide if such an identification would be defamatory per se, meaning that a plaintiff would not have to prove he was damaged by the publication.

(Amrak Productions v. Morton, Media Counsel: Jonathan M. Albano, Bingham McCutchen LLP, Boston, Mass.)GP

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