Sex and the Stock Photo*

August 5, 2016 | Insights

 *Stock photo not intended to imply that persons depicted were involved in any case discussed in this post. The opinions are the author’s own.

By Paul Watler

Despite the high heat of summer, two federal courts have blown a chill wind through the law of online defamation. The courts gave the green light to libel suits over alleged implications from stock or file photos illustrating sexually-related news postings.

In 2013, the Daily Mail Online posted a photo of a negligee-clad woman posing enticingly atop a bed to accompany a report on the impact of a positive HIV test on the porn industry in southern California. The woman in the provocative pose – Danni Ashe – was an internet porn pioneer but was not the actress who had tested positive for HIV.

The stock photo, licensed by an image database, was selected to “clearly convey the concept of the pornographic film industry.” Ashe was not named in the caption and the article stated the performer who had tested positive had not been identified. However, a neon sign was visible in the photo behind the actress illuminating the words, “In bed with Danni.”

Ashe complained that the juxtaposition of her photo with the news report created a false and defamatory implication about her.

The U.S. Court of Appeals for the Ninth Circuit agreed in an opinion issued July 25. It held that the photo could be viewed to reasonably convey a defamatory impression of Ashe because the accompanying article did not clarify she was not the actress who had tested positive for HIV.

The court believed the false impression was particularly reinforced by search engine results that produced only the headline and the photo. The newspaper’s argument that a careful reading of the article as a whole dispelled the implication that Ashe was the positive-testing actress was to no avail.

In another federal case, the Third Circuit Court of Appeals ruled July 19 that placement of a file photo of a firefighter – identified by name in the caption — with an online article by the Philadelphia Daily News about a fire department sex scandal could be read as defamatory of the firefighter.

The photograph focused on an insignia patch on the firefighter’s uniform, but his face was also visible, although out of focus. The file photo was from a report years earlier about a 9-11 memorial ceremony. The firefighter had no part in the sex scandal.

The newspaper won dismissal of the case when the trial court held that a reasonable reader of the article in context would not associate the firefighter shown in the photo with the sex scandal. The Third Circuit first agreed but then reconsidered to reach the opposite conclusion.

“A reasonable reader could conclude that the inclusion of [the firefighter’s] photograph and name meant to suggest that the text of the article concerned him,” wrote the appellate court.

Neither court cited any evidence that the editors who prepared the posts actually intended to imply that the persons depicted in the photos were guilty of unlawful or reckless conduct. Aside from the alleged defamatory implications, both articles were factually accurate accounts of newsworthy developments of general concern.

Internet authors and editors now confront new reasons to self-censor in reporting the news. The recent cases show that embarrassing implications that the author or editor did not mean to convey may carry unanticipated risks.

In other words, the mid-summer air blows with wind chilling free speech in the cyber world.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.