This essay first appeared in the program materials for the American Bar Association’s July 9, 2000 Annual Meeting Program, “Clean Reputation, Clean Mailbox: Conquering Cyber-Slander and Spam.”

                               

“Steam Heat But False Light: Nude Images on the Internet”

 

Walter A. Effross

Washington College of Law, American University

 

                The cover of the December 1998 Cosmopolitan magazine warned, “‘He Put Naked Pictures of Me on the Internet’: Why It Could Happen to You.”  Although the advertised article doesn’t mention Pamela Anderson or Dr. Laura Schlessinger, both of whom have been embroiled in just such controversies, it highlights the increasing relevance to cyberspace of a decades-old concept in tort law. 

 

                As part of the magazine’s discussion of stalking, the pseudonymous “Rebecca Martin” states that her former lover “Ted,” after repeatedly sending her “desperate and deranged” e-mail messages, e-mailed to her parents “a video still of a tape I had reluctantly let Ted make while we were having sex.” 

 

                “Ted” also apparently sent to others an e-mail containing “a pornographic picture of me, including my name, address, work and home telephone numbers, and E-mail address.  At the bottom it read: I’m ready for a good time.  Come party with me.”  “Rebecca” discovered this, she says, only when a stranger appeared on her doorstep one morning to take up the invitation.

 

                Ultimately, according to the author’s account, her lawyer and her city’s “stalking task force” convinced “Ted” to back down.  However, the police told her that “because the picture was of a consensual adult act, there wasn’t much they could do and that there were no laws against posting personal information on the Internet.”

 

                Well, yes and no.  Whether or not the e-mail messages constituted harassment under the criminal laws of  “Rebecca’s” jurisdiction, “Ted” might well be liable for civil damages if she can prove that he sent the X-rated invitation and if her state recognizes the doctrine of “false light” publicity.  That tort is generally defined as placing someone “before the public in a false light” that is “highly offensive to a reasonable person,” with knowledge or “reckless disregard as to the falsity of the publicized matter and the false light in which [the victim] would be placed.”  

 

                Like Ms. Anderson and Dr. Schlessinger, who fought the dissemination of their images on adult Web sites, “Rebecca” didn’t dispute that the explicit photograph at issue was genuine and that it had been made with her permission.  However, the e-mail that combined her personal information and sexual invitation with this image wrongly and offensively implied that she had distributed this material herself and that she was promiscuous.

                This behavior takes bathroom-wall graffiti (“for a good time, call. . . “) to a new level.  However, it would be only the latest spark to ignite false light litigation concerning nude images.  In the 1980's a number of such actions were brought by women whose images had appeared without their permission in the pages of adult magazines.  In fact, in 1985 the Seventh Circuit Court of Appeals concluded that an actress/model who had given permission for nude photographs of herself to appear in Playboy could plausibly claim that its publication instead in Hustler had harmed her reputation and commercial prospects.

 

                More recently, celebrities such as Alyssa Milano and Nancy Kerrigan have brought false light lawsuits with some success against Web-based purveyors of  “fake nudes.” These digital images are created by using easily-available software to retouch family-friendly photographs (including those featured on the stars’ authorized sites) or to graft pieces of these pictures onto images of nude bodies.  Because the fakes are often almost indistinguishable from original photographs, viewers may believe that the celebrities actually posed for the fakes and gave permission for their distribution.

 

                Are you safe from false light problems if you don’t let cameras into your bedroom and don’t put your photo on your Web site?  Not really.  Someone could use digitized photographs, real or altered, of you or of a convincing look-alike.  And, as in a recent decision involving a real image of Ms. Anderson, litigation may backfire if a court decides that the controversy itself helps to render the image “newsworthy” and thus reproduceable.

 

                Even without involving sex or images, what’s to stop someone from posting on a Web site or distributing by e-mail some text or audio clips that misrepresent, or falsify entirely, your written or oral statements on personal or controversial issues?  Those unwilling to obtain or manufacture such “evidence” could just make unwarranted accusations: a false light claim was brought by a man erroneously alleged by on-line postings to be selling t-shirts with offensive references to the Oklahoma City bombing.

 

                On the Internet (as, one would imagine, in Cosmopolitan magazine) sexual issues are often a flashpoint for larger legal and cultural controversies.  As more “Teds” go on-line, we should expect much more false light litigation to be generated by the Internet’s unique ability to alter-- seamily, steamily, and seamlessly-- both text and context.

 

(c) Walter A. Effross 2000.

(Professor Effross is not a regular reader of Cosmopolitan magazine.)