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.)
�

|
Washington College of Law - 4801 Massachusetts Avenue, NW - Washington, DC 20016 - 202-274-4000 |
![]() |