Case: Solano v.

Playgirl

Facts:
 Playgirl put out an issue w/ the cover photograph being actor
Jose Solano, Jr. in his “Baywatch” uniform
 “Primetime's Sexy Young Stars Exposed,” above his head
 In the cover's lower right-hand corner was the headline,
“Baywatch's Best Body, Jose Solano.”
 Solano’s sole appearance was pg. 21 fully-dressed with a brief
bio of
 Playgirl contains nude men in addition to written editorial
features
 Solano never posed for, nor was he interviewed by Playgirl
 Solano sued Playgirl alleging they deliberately created the false
impression that he did pose nude for Playgirl, making it appear
he was willing to degrade himself and endorse such a
magazine
 Alleged he suffered a decline in job offers, invitations to charity
events and social contacts with others in the entertainment
industry following the publication of the January 1999 issue.
Procedure:
 District court granted summary judgment finding Solano failed
to establish Playgirl created a false impression about what
readers would actually see of Solano in the magazine (or acted
knowingly or recklessly in doing so) [false light and
misappropriation of likeness]

Issue: False Light

Rule: To prevail on this false light claim
(1) disclosure to one or more persons information about plaintiff that
was presented as factual but that was actually false or created a
false impression;
(2) the information was understood by one or more persons to whom
it was disclosed as stating or implying something highly offensive that
would have a tendency to injure Plaintiff’s reputation;
(3) by clear and convincing evidence, Defendant acted with
constitutional malice; and
(4) Plaintiff was damaged by the disclosure
Analysis:
Plaintiff argues: publication of the magazine contained implied
false message
Court: We agree. Eastwood case: a tabloid magazine falsely
created an impression that Clint Eastwood gave an interview w/
the magazine (even though it never expressly claimed
Eastwood was interviewed)
Kaelin case: tabloid headline implied that Kaelin was
responsible for the OJ murder “COPS THINK KATO DID IT ...
he fears they want him for perjury, say pals.”  multiple
interpretations (perjury or murder – defamatory) were
reasonably possible as matter of law (factual issue for jury).
Issue: Actual malice

Rule: Knowing or reckless disregard for the truth… must have made
the false publication with a high degree of awareness of ... probable
falsity (entertained serious doubts as to the truth of his publication,
may be proved by inference)

Playgirl argue: If magazine had a nude photo of Solano, it would have

explicitly said so on the cover
 Some editorial staffers were concerned that including Solano w/
the headline might imply he was to appear nude in the
magazine
 There is a genuine issue of fact as to whether Playgirl’s staff
knowingly or w/ reckless disregard that the publication would
falsely imply Solano voluntarily posed for/appeared in the
magazine
Issue: Damages

Playgirl argues: Solano cannot prove damages

 Plaintiff was unable to provide evidence that any lost job was
related to his appearance in the magazine
 Talent agent never mentioned said no one ever mentioned the
Playgirl mag in relation to a job
 Plaintiff could only speculate charity events declined after
publication of the Playgirl
Issue: Misappropriation
Rule:
California Civil Code Commercial Misappropriation of Privacy § 3344: cause
of action where any person ... knowingly uses another's name, voice, signature,
photograph, or likeness, in any manner, on or in products, merchandise, or goods ...
without such person's prior consent

Common law Commercial Misappropriation of Privacy § 3344

1) defendant's use of plaintiff's identity,
2) the appropriation of plaintiff's name or likeness to defendant's
advantage, commercially or otherwise,
3) a lack of consent and
4) resulting injury.

Both have public interest protection

Holding: reverse the district court's grant of summary judgment to Playgirl and
remand for further proceedings.

Case: Jews For Jesus, Inc. v. RAPP

Jx: 997 So. 2d 1098 (Fla. 2008) (FLORIDA CASE)
Facts:
 Bruce Rapp Marty's son and Edith Rapp's stepson, was employed by Jews for Jesus,
Inc.
 Bruce reported an account in his newsletter for Jews For Jesus about an experience he
had with his Stepmother Edith where he converted her to accepting Jesus (by
comparing him to the Passover lamb) and she begged for forgiveness
 Complaint alleged that Jews For Jesus falsely claimed, without her permission, Edith
"joined Jews for Jesus, and/or [become] a believer in the tenets, the actions, and the
philosophy of Jews for Jesus.”
Causes of Action: (1) false light invasion of privacy; (2) defamation; and (3) intentional
infliction of emotional distress.

Procedure:
 TC granted Jews For Jesus motion to dismiss w/out prejudice

Issue: Whether the tort of false light invasion of privacy should be recognized in Florida.

Analysis:
 Tort law designed to compensate plaintiff for their injury (make the plaintiff
whole) and deter tortious conduct
Main arguments against false light tort is that it:
1) Has substantial overlap w/ Defamation (both in the conduct alleged & interests
protected) and recognizing it enables plaintiffs to get around strict statutory
requirements (created through case law to ensure freedom of expression)
 2) Has potential to chill speech w/out the First Amendment protections attended
to defamation

False Light Elements:

(1) publicity;
(2) falsity;
(3) actor must act with knowledge or reckless disregard as to the falsity;
(4) actual damages;
(5) publicity must be highly offensive to a reasonable person; and
(6) publicity must be about the plaintiff.

Defamation has the following five elements:

(1) publication;
(2) falsity;
(3) actor must act with knowledge or reckless disregard as to the falsity on a matter
concerning a public official, or at least negligently on a matter concerning a private person;
(4) actual damages; and
(5) statement must be defamatory.

Argument for False Light tort: allows literally true statements that creates a false
impression

Court: Defamation by implication (literally true statements conveyed in such a way that
creates a false impression) already long established under FL law and therefore no need
for False Light tort
 Under FL jury instructions for defamation, while minor inaccuracies are O.K.
under defamation as long as the "gist" is correct (i.e. the statement will be
substantially true) , it does not work the other way (factually correct but "gist"
creates a false implication)
 All of the protections of defamation law that are afforded to the media and private
defendants are therefore extended to the tort of defamation by implication.

C. Nature of the Interests Protected

Argument: Defamation & False Light protect different interests (Defamation = protects
objective interest of reputation, False Light = interest is subjective interest of injury to the
[inner] person)
Court: if interest is not unique and is adequately addressed by Defamation, no need for the
tort.
 In this case, it is a distinction w/out a difference in practice -- conduct that defames
will be highly offensive to a reasonable person, just as a highly offensive statement
will often result in injury to one's reputation (highly offensive statements generally
either portray plaintiff negatively or attack his conduct/character)

D. First Amendment Implications

 "highly offensive to a reasonable person" standard runs risk of chilling free speech
b/c the type of conduct prohibited not clearly defined
  Defamation easier to predict for authors because it is measured by results (i.ee
damage to reputation) where as False Light Invasion of Privacy measured by
perception.
 both Colorado & Texas SC believe uncertainty created by the subjective "Highly
Offensive" standard would have chilling effect on speech
 Safegaurds and privileges have been established to balance the rights of individuals
against defamatory statements against freedom of expression/First Amendment rights
 FL law also has certain requirements that need to be met before bringing Defamation
suit (notice to media, specify defamatory/false statements, and may limit recovery 1)
where published in food faith, 2) statements false due honest mistake of facts, 3)
reasonable grounds for believing statements true, and 4) full & fair
correction/apology was given w/in a time period)

NY Civil Rights Law - § 50. Right of privacy

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade,
the name, portrait or picture of any living person without having first obtained the written
consent of such person, or if a minor of his or her parent or guardian, is guilty of a
misdemeanor.

NY Civil Rights Law - CVR § 51. Action for injunction and for damages
Any person whose name, portrait, picture or voice is used within this state for advertising
purposes or for the purposes of trade without the written consent first obtained as above provided
may maintain an equitable action in the supreme court of this state against the person, firm or
corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof;
and may also sue and recover damages for any injuries sustained by reason of such use and if the
defendant shall have knowingly used such person's name, portrait, picture or voice in such
manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its
discretion, may award exemplary damages. But nothing contained in this article shall be so
construed as to prevent any person, firm or corporation from selling or otherwise transferring any
material containing such name, portrait, picture or voice in whatever medium to any user of such
name, portrait, picture or voice, or to any third party for sale or transfer directly or indirectly to
such a user, for use in a manner lawful under this article; nothing contained in this article shall be
so construed as to prevent any person, firm or corporation, practicing the profession of
photography, from exhibiting in or about his or its establishment specimens of the work of such
establishment, unless the same is continued by such person, firm or corporation after written
notice objecting thereto has been given by the person portrayed; and nothing contained in this
article shall be so construed as to prevent any person, firm or corporation from using the name,
portrait, picture or voice of any manufacturer or dealer in connection with the goods, wares and
merchandise manufactured, produced or dealt in by him which he has sold or disposed of with
such name, portrait, picture or voice used in connection therewith; or from using the name,
portrait, picture or voice of any author, composer or artist in connection with his literary, musical
or artistic productions which he has sold or disposed of with such name, portrait, picture or voice
used in connection therewith. Nothing contained in this section shall be construed to prohibit the
copyright owner of a sound recording from disposing of, dealing in, licensing or selling that
sound recording to any party, if the right to dispose of, deal in, license or sell such sound
recording has been conferred by contract or other written document by such living person or the
holder of such right. Nothing contained in the foregoing sentence shall be deemed to abrogate or
otherwise limit any rights or remedies otherwise conferred by federal law or state law.
Public Disclosure of Private Facts

Case: Shulman v. Group W Productions, Inc.

Jx: 18 Cal.4th 200 Supreme Court of California (1998)
Facts:
 Plaintiffs (Ruth and Wayne) were in a car accident with 2 other passengers but only the
two of them were trapped in car (Wayne pinned under the car)
 A rescue helicopter that had a flight nurse, a medic, the pilot, and a cameraman were sent
to recover the two plaintiffs
 The cameraman filmed the rescue operation (only showed a glimpse of Wayne but Ruth
shown several times) and the Nurse wore a microphone that picked up her conversations
w/ Ruth and rescue personnel
 The conversation b/t Ruth was Ruth answering her age "I'm old", asking if she is
dreaming, and when she's being loaded onto the helicopter "I just want to die."
 The scene closed w/ Ruth being taken into the hospital saying "Laura's patient spent
months in the hospital. She suffered severe back injuries. The others were all released
much sooner.”
 The camerman's footage taken and edited into a 9 minute piece broadcasted as a segment
on On Scene: Emergency Response
 Ruth was alerted to the airing in the hospital and claimed she was shocked (it was run and
felt exploited), felt her privacy was invaded, and that she did not want others to see her
trauma

Procedure:
 Ruth & Wayne sued the producers of On Scene: Emergency Response alleging 2 claims
of invasion of privacy (one unlawful intrusion for filming the rescue, another for public
disclosure of private facts i.e., the broadcast)
 Defendants moved for summary judgment alleging broadcast protected by 1st
amendment (plaintiff responded, conceding the event appeared in the San Bernardino
newspaper, mercy air appeared at license and agreement w/ county, auto accidents &
emergency rescue are matters of public interest constituting public affairs)
 TC granted summary judgment for producers on the grounds that the events depicted in
the broadcast were newsworthy (as matter of law) & therefore protected under 1st
amendment to the Constitution; Court of Appeal reversed (triable issues of fact as to
claim for publication of private facts & legal error as to both plaintiffs' intrusion claims)
 Error: Newsworthiness was not complete defense- trial court should have conducted an
analysis balancing plaintiffs' privacy rights against defendants' First Amendment interest
in recording the rescue
Analysis:
Public Disclosure of Private Facts
Issue: Whether the accident and rescue was of legitimate public concern
Rule:
To have a cause of action of public disclosure of private facts, there must be:
(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to
the reasonable person and (4) which is not of legitimate public concern. (i.e., newsworthy)
Holding: