News organizations are more likely to be liable in privacy lawsuits if their reporting is factually incorrect, according to a federal court opinion issued this week.
Shana Edme, who was pursuing a modeling career, uploaded her modeling photographs to Modelmayhem, an industry website. She alleges that in 2011, the site released pictures of her in lingerie to online media. Media Takeout, a gossip website, allegedly published a false story that identified Edme as the “lingerie model” sister of celebrity Kimora Lee Simmons. Bossip, another gossip site, published a photograph of Edme with the headline “Rumor Control: Kimora Lee Simmons Says ‘That Lil Trashy Lingerie Wearing Heffa is NOT My Sister.’”
Edme sued Bossip, Media Takeout, and Internet Brands, which does business as Modelmahem, alleging violation of her right to privacy. The defendants moved to dismiss the case.
New York state law, which applies in this case, provides that anyone whose name, portrait, picture, or voice is used “for advertising purposes or the purpose of trade without consent first obtained” can seek damages in a privacy lawsuit.
New York courts have long held that publications of “newsworthy events or matters of public interest” are not subject to privacy claims. But courts also have held that this exception does not apply if the news reporting is “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception.”
Applying these legal rules, Senior District Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York denied the motion to dismiss the claim against Media Takeout. Although the story “can be considered, for better or worse, a matter of public interest merely because its subject matter involved a celebrity,” Judge Hurley held that because Media Takeout reported the “undisputedly false” claim that Edme was Simmons’ sister, the article could lose the newsworthiness privilege.
In contrast, Judge Hurley dismissed the claim against Bossip, because Edme did not allege that the reporting contained falsehoods. And Judge Hurley dismissed the claim against Modelmayhem because Edme did not allege that the site used her photos to attract customers or make a profit.
The differing results for Media Takeout and Bossip demonstrate that in many states, the news media remain vulnerable to privacy claims, particularly if their reporting is allegedly false.