One area where people do not necessarily appreciate the distinctions between what is actionable involves differences between defamation, privacy and emotional distress claims. Generally, these are torts—civil wrongs—that, if all elements are proven, entitle the harmed person to recover. In the case of a photograph (although state laws differ), defamation generally requires proof that the photograph, or its placement next to otherwise offensive material, is defamatory, was published by the wrongdoer, applies to the harmed person, is such that others can understand the defamatory meaning, and the third parties who see it understood it applies to the harmed person.
Privacy is really an umbrella statement for four different types of claims, and again, subject to variance among the states. Sometimes it is purely a matter of statute. At common law, privacy claims include intrusion upon seclusion, public disclosure of private facts, false light and misappropriation. I will address these in future posts.
Intentional infliction of emotion distress is a separate claim, where you have to prove the other party engaged in extreme and outrageous or reckless conduct causing severe emotional distress.
A recent case from the Third Circuit Court of Appeals, while not precedential, shows how these operate. In Cheney v. Daily News L.P., Docket No. 15-12251 (July 19, 2016), Cheney, a firefighter, was the subject of a stock photograph used by the Daily News alongside a website article about a sex scandal surrounding the Philadelphia Fire Department. The caption of the photograph named him, though he was not the subject of or otherwise mentioned in the article. His arm patch was visible though his face out of focus. Nonetheless, he received numerous messages from friends, family and colleagues and even strangers.
The appellate court held that he stated a claim for defamation, reversing the trial court on the issue, finding that the photograph and the caption were such “that a reasonable person could understand that the Daily News article concerned Cheney.” The appellate court also reversed the trial court and reinstated the false light claim on the same basis, because it was found that the photograph “concerned” Cheney. Finally, though, the appellate court did sustain the dismissal of the emotional distress claim because the conduct was not “extreme and outrageous” under the circumstances.
So while not precedential, that does not mean the case does not provide real world guidance and a real world example of how these concepts play out, and even how judges (the trial court and appellate court) can disagree. It is another example as well of the difference between the taking of an image and the ultimate use of it, and the need for photographers to understand that.