Illinois Parks & Recreation
November / December 1995 • Volume 26, Number 6
by Barry 0. Hines and R. Kurt Wilke
The Any town Park District thought it had the perfect photograph to illustrate the cover of its newsletter—a young couple, arm in arm, seated on a park bench by the pond, enjoying a fine summer day. After the newsletter was printed and distributed to every resident in Anytown, the problem with the photograph was promptly brought to the district's attention by the angry couple, who were married but not to each other.
Any time an organizations publishes a photograph depicting people, the right of privacy is implicated. The right to be left alone has been legally recognized in one form or another
for a great many years. The Illinois Supreme Court joined many
other states by announcing in 1970 that the right of privacy is a
legally protected right, and one who violates that right can be
subject to liability. [Leopold v. Levin (1970), 45 Ill.2d 434,259
N.E.2d 250]. In the case of a photograph taken at a public place
like a park, three types of invasion of privacy claims can arise:
My affairs are my affairs!
Some cases have resulted in liability, but those cases generally have involved clearly objectionable photographs. For there to be liability for disclosure of private matters, the disclosure must be unreasonable; that is, offensive or objectionable to a reasonable person. For example, an Alabama reporter photographed a woman at a county fair. There was no dispute that the woman was in a public place, however, the photograph was snapped in an embarrassing moment when a gush of air blew the woman's dress up. In an apparent lack of good judgement, the newspaper ran the photo on its front page, and the Alabama Supreme Court ruled the paper was liable in damages to the woman. [Daily Times Democrat v. Graham (A/a. 1964), 276 Ala. 380,162 So.2d474J. The cases suggest that as long as the photograph is not offensive or objectionable to the reasonable observer, a claim based on disclosure of a private matter will not succeed.
Illinois Parks & Recreation • November/December 1995 •21
It's not how it looks!
Does the minister have a case? He may have. This example illustrates the second theory of liability—placing another in false light. Even though there is nothing false about the photograph itself, it accompanies text on an unrelated subject, giving the impression that the two are related. Whether liability is imposed will depend on 1) whether the false light in which the minister was placed (depicting him as a convict) would be highly offensive to a reasonable person, and 2) whether the district knew or recklessly disregarded the fact that the photo depicted a minister and not a convict.
Although they are difficult to win, false light cases involving photographs are not infrequent. In a 1987 case, a newspaper published a story about a convicted, mentally ill murderer, but mistakenly ran the story with a photograph of another man—who sued. Certainly, the false light was highly offensive, but the Oklahoma Supreme Court denied the man's claim, because he only proved the newspaper was negligent, not that it acted recklessly. [Colbert v. World Pub. Co. (Okl. 1987). 747 P.ld 286].
It should be cautioned that in many false light cases, the plaintiff will also have a claim for defamation (also known as libel). In a defamation case that involves a "private person," the Illinois Supreme Court has ruled that proof of mere negligence is sufficient to impose liability. [Troman v. Wood (III.1975), 62 Ill.2d 184, 340 N.E.2d 292]. People caught on camera using and enjoying a public park will most likely be private persons, as distinguished from public officials and public figures, who have less protection from libel and slander claims. Regardless of the applicable standard, however, claims under a false light or defamation theory should be unsuccessful where the photograph is published in its proper context.
What a cute kid photo, but...
On the other hand, when a person is incidentally shown in a photograph, depicting some public event, an appropriation claim should be unsuccessful. In a recent case, a dog-racing park put out a promotional brochure which contained photographs of patrons at the park, and two of those depicted sued the park for invasion of privacy. Even though the brochure was distributed to promote the park commercially, the court denied the claim because there was no commercial advantage to the incidental use of the patrons' photographs. [Schifano v. Greene County Greyhound Park. Inc. (Ala. 1993), 624 So.2d 178].
Invasion of privacy claims can be avoided entirely by the use of a written release. The components of a standard release form are an acknowledgment of consideration, release language, and a dated signature. For example:
Release and Permission to Publish
I further release Anytown Park District, together with its officers, employees, agents and assigns, from any and all claims for damages for libel, slander, invasion of privacy or any other claim
based on the use of said photographs regardless of their form or content.
22 • Illinois Parks & Recreation * November/December 1995
If the release is sought in connection with the photograph of a minor, it should be modified so that the child's parent or legal guardian signs on the child's behalf.
Most claims for invasion of privacy can be avoided by simply exercising good judgement under these guidelines, by not using photographs which are obvious intrusions of privacy, and by obtaining consent in any case where it is easy to do so, and certainly in those cases where a particular person's photograph may be used to obtain some commercial or other benefit.
Barry 0. Hines and R. Kurt Wilke are partners in the Springfield law firm of Barber, Segatto, Hoffee & Hines, where their practice includes representation of media and other clients on defamation and First Amendment issues. Mr. Hines is past Chairman of the Illinois State Bar Association's Fair Trail/Free Press and Media Law Committee.
Remember to complete the IAPD/IPRA Readership Survey by January 1
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Sam S. Manivong, Illinois Periodicals Online Coordinator