United States: Third Circuit Finds Photo Placement Sufficient To Permit Defamation, False Light Claims To Go Forward In Suit Alleging Harm From Firefighter Sex Scandal Story

In a case demonstrating the difficulties of applying long-established but arguably outdated legal principles to modern technology, the United States Court of Appeals for the Third Circuit last week reversed itself to permit a Philadelphia firefighter's defamation and false light claims to go forward, based on the inclusion of his photograph in an online article describing a sex scandal. The court concluded upon considering the firefighter's arguments for the second time that, in the context of an online article accompanied by pictures, specifically naming and showing an individual was sufficient to establish that an article was "of or concerning" that individual for purposes of a defamation or false light claim.  However, the Third Circuit affirmed its prior dismissal of the plaintiff's intentional infliction of emotional distress claim, finding that being implicated in a sex scandal did not rise to the level of being "extreme or outrageous."

Central to the claims in the case was an article published on the New York Daily News website describing a sex scandal in which "dozens of firefighters were accused of scandalous behavior."  The text of the article appeared on the right column, while the left column contained two pictures readers could toggle between; one was a silhouette of an unnamed firefighter, while the other was of plaintiff and stated, "Philadelphia firefighter Francis Cheney holds a flag at a 9/11 ceremony in 2006."  This was the only reference to a specific firefighter in that article and on the following day, the Daily News published an additional article regarding the scandal but did not include the Cheney photograph.

Following a flood of messages from colleagues at the Philadelphia Fire Department, family, friends, and even strangers, Cheney brought suit against the Daily News alleging defamation, false light invasion of privacy, and intentional infliction of emotional distress.  After the United States District Court for the Eastern District of Pennsylvania granted the Daily News' motion to dismiss, Cheney appealed to the Third Circuit, which affirmed, but then granted rehearing and reversed its prior decision as to the defamation and false light claims.

In its initial decision, the Third Circuit affirmed dismissal of those claims because the article could not reasonably be understood to be of or concerning Cheney.[1]

In its original ruling, the Third Circuit determined that Cheney could not show that the article was "capable of being reasonably understood as referring to him," suggesting that "the caption makes clear that it is a stock photograph meant to illustrate firefighters in general, not those involved in the scandal." However, upon rehearing, the Third Circuit delved deeply into relevant precedent and reversed its prior decision.

While the District Court ruled that the "caption made it clear that Cheney's photograph was a stock photo," the Third Circuit's rehearing analysis concluded that was not the case. Rather, by considering defamation cases from the United States Supreme Court (1909) and the Supreme Court of Pennsylvania (1969), the Third Circuit found the article could be reasonably interpreted as concerning Cheney.

Pointing to the placement of the photograph directly next to the article's text and underneath its headline, as well as the fact that the caption identifying Cheney was "the only reference to any firefighter," the Third Circuit concluded that "a reasonable reader could conclude that the inclusion of his photograph and name meant to suggest that the text of the article concerned him," thus satisfying the Pennsylvania standard for the "of and concerning" element of a defamation claim. The court also noted that it had the benefit of considering actual reasonable readers' reactions, given the flood of messages concerning the scandal that Cheney received.

Based on its finding in the defamation claim, the Third Circuit also reversed its prior decision on Cheney's false light claim, which the court dismissed based on failure to satisfy the same element. However, the Third Circuit affirmed its rejection of Cheney's intentional infliction of emotional distress claim, finding that being implicated in a sex scandal did not rise to the level of "extreme and outrageous," given that it was less offensive than conduct such as "mishandling a corpse, reckless diagnosis of a fatal disease, and having sexual contact with young children," which Pennsylvania courts had previously held to satisfy that standard.

The Third Circuit's surprising reversal of its own prior decision indicates just how difficult defamation and false light claims can be to assess and decide, when old precedents are applied to emerging technologies. The use of hyperlinks and easy and quick access to previously published materials, such as photographs, presents problems if used in a later story that may portray a different message or subject matter.  While the internet provides publishers with new ways to present unique and exciting content quickly, it also creates challenges in managing and carefully vetting the content.  Thus, training for journalists and editors during the onboarding process, as well as a discerning eye during publication, can help avoid defamation and false light claims, particularly when navigating newer media, such as publishing articles on websites, social media, or in apps.


[1] To establish a defamation claim in Pennsylvania, a plaintiff must establish that (1) the communication was defamatory; (2) the defendant published the communication; (3) the communication was of or concerning plaintiff; (4) the recipient would understand the defamatory meaning; and (5) the recipient understands that the communication is intended to be applied to plaintiff.  To establish a false light claim, a plaintiff must show that (1) the false light in which an individual was placed would be highly offensive to a reasonable person, and (2) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter.  Ultimately, both claims require a showing that a publication is "of or concerning" the claimant.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.