Desire to Illustrate Stories Can Add Risk for Media

We recently blogged a New York Times story about apparent erroneous hyperlinks from the names of people who had pled guilty in a criminal investigation to unrelated persons who had the same names. In our story, we commented on the similarity between that linking problem and defamation cases stemming from more traditional means of misidentification.

The U.S. Court of Appeals for the First Circuit recently ruled in a case that appears to be an excellent example of a traditional misidentification type case. As often happens, the case involves using imagery to illustrate a story. There’s a problem because the imagery doesn’t actually have a direct connection to the topic of the story.

Boston magazine published a story headlined “The Mating Habits of the Suburban High School Teenager.” The magazine cover referenced the story inside, saying “Fast Times at Silver Lake High: Teen Sex in the Suburbs. Another headline inside said: “They hook up online. They hook up in real life. With prom season looming, meet your kids – they might know more about sex than you do.” You get the gist of the story.

The entire first page of the article was consumed by a photo that also covered half of the facing page. The picture was taken at a high school dance, and it shows five persons, including Stacey Stanton of Manchester, New Hampshire.

Stanton filed suit for invasion of privacy and defamation, believing the piece portrayed her as being sexually promiscuous. The case ended up in federal district court where the judge, applying Massachusetts law, granted a defense motion to dismiss. Stanton appealed dismissal of the defamation count.

Some of the defense arguments hinged on a disclaimer that appeared on the facing page. The disclaimer was located below the main article’s text and above the byline, but in smaller type than either. It also was below an arrow indicating that the story continued on the following page.

The disclaimer said: “The photos on these pages are from an award-winning project on teen sexuality taken by photojournalist Dan Habib. The individuals pictured are unrelated to the people or events described in this story…”

To the defense, that disclaimer made clear the article was not about Stanton and if it wasn’t about her, she could not have been defamed.

Stanton had contended in the lower court that the disclaimer itself was defamatory in falsely identifying her as a subject in a project on teen sexuality.

In granting the motion to dismiss, the trial court said that without the disclaimer, a reasonable reader could conclude that Stanton was sexually active and engaged in at least some form of sexual misconduct. But, the court said, the disclaimer negated those connotations.

The appeals court disagreed. It basically said that a reader could easily miss seeing the disclaimer for any number of reasons: the court referenced the Restatement (Second) of Torts as saying the public frequently reads only the headline in such publications or reads the story only hastily; given the placement of the disclaimer, a reader might not notice it; and one might stop reading the disclaimer after the first sentence identifying the source of the photo.

In reversing the trial court, the appeals court said that because it is possible that a considerable portion of readers could miss the disclaimer, one could not say that it was impossible for Stanton to show facts supporting her defamation claim.

From a journalistic perspective, the case causes discomfort. If a statement on the same page as a photo is ineffective in providing a shield against liability, the publication may be trapped by the lowest reading standards, those of the careless or hasty reader.

The court tried to prevent any broad generalization of its ruling. “In reaching this conclusion, we do not mean to suggest that language in the nature of a disclaimer can never serve to render a statement incapable of conveying a defamatory meaning… We simply recognize that, given the placement of the general disclaimer in the article and the nature of the publication in general, a reasonable reader could fail to notice it.”

That statement likely provides little solace to a publisher. The case highlights once again the risks that publications and broadcasters take when they use photographs and footage that are not adequately related to the subject of the report.

It is an old quandary of media companies faced with a desire to make their products more attractive by providing graphic devices. A television station really wants to show something other than a static shot of the anchor when doing a story on teen pregnancies, shoplifting or alcoholism. But use of such footage carries risks. Apparently even when the media company sees the risk coming and tries to avoid it.