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.�

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�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.)

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