The US Supreme Court has refused permission to appeal in the interesting Georgia privacy case of LFP Publishing Group v. Toffoloni. The family of a professional wrestler, Chris Benoit, brought a privacy claim against Hustler magazine which had published old nude photos of Benoit’s wife Nancy, who, according to police, was killed by her husband three years ago. The issue was whether the implied constitutional right of privacy should prevail over the First Amendment rights of the media and publishers. The case will now proceed to trial.
The claimant, Nancy’s mother Maureen Toffoloni, brought the claim alleging that her daughter had done the shoot more than 20 years ago and had asked that the photos and videos be destroyed afterwards. Stills from the video had been sold to Hustler magazine which then printed them in its March 2008 issue.
The issue in the case was whether the First Amendment freedom of the press insulates a publisher from liability for a claim that it violated Georgia’s common-law posthumous right of publicity by publishing non-obscene nude photographs of a decedent in an article in a national magazine, when the decedent was a public figure and her murder was a national news story of great public interest.
The state of Georgia recognises a right of publicity to protect against
“the appropriation of another’s name and likeness . . . without consent and for the financial gain of the appropriator . . . whether the person whose name and likeness is used is a private citizen, entertainer, or . . . a public figure who is not a public official.”
We interpose that such a right may well be an aspect of the “image rights” protected by Article 8. The Court of Appeals explains this “right of publicity” in this way
“The right of publicity grew out of a long-standing recognition of the right to privacy under Georgia law. … Rooted in the right to privacy, the right of publicity is also characterized by an economic concern that individuals be allowed to control the use of their image in order to maximize the profit they can receive from its publication”.
After considering the Georgia and Supreme Court case law the Court of Appeals concluded
“when a media outlet appropriates “some aspect” of an individual “that would have market value and for
which he would normally pay,” without that individual’s permission, the media outlet is subject to damages in a tort suit for violation of the right of publicity”.
Hustler magazine relied on the First Amendment. The Court of Appeals then said this (using language which will be familiar to English readers)
“Both the rights to freedom of speech and freedom of the press, as guaranteed by the First Amendment, and the right to privacy, as guaranteed by the Due Process Clause, are fundamental constitutional rights. The Constitution directs no hierarchy between them. Thus, courts are required to engage in a fact-sensitive balancing, with an eye toward that which is reasonable and that which resonates with our community morals, in order to protect the Constitution as a whole”.
The Court went on to consider the so-called “newsworthiness” exception to privacy rights. The Court had no doubt that publication of the photographs on their own would not fall within the exception “The question before us is whether a brief biographical piece can ratchet otherwise protected, personal photographs into the newsworthiness exception”. Its, unsurprising, conclusion was that it could not. The Court went on to reject the argument that the photographs were “related to an incident of public concern”, holding
“The Georgia courts have never held, nor do we believe that they would hold, that if one is the victim of an infamous murder, one’s entire life is rendered the legitimate subject of public scrutiny. Such a ruling would eviscerate the Georgia right of publicity, allowing the exception to swallow the rule”.
The whole judgment is of interest from the perspective of English privacy law.
ScotUS blog has all the case documents available (see ScotUS Blog “Petitions to Watch, 26.2.10”) – in what should be a model for information availability in our court system:
- Opinion below (11th Circuit)
- Petition for certiorari
- Brief in opposition
- Amicus brief of the First Amendment Lawyers Association
- Amicus brief of the Reporters Committee for Freedom of the Press and The Society for Professional Journalist
Finally, we would like to thank Mr Benjamin Pell for drawing this case to our attention.