Two federal appeals courts hearing claims that a publication invaded a news subject's privacy by portraying the person in a false light reached different conclusions in June.
Playgirl lost its attempt to keep a "Baywatch" actor's lawsuit away from a jury. But a business reporter for The New York Times won her appeal of a trial court's award of $480,000 in damages against her for reporting a rumor about a business executive.
Both rulings centered on actual malice - whether the reporter or publication knew the reports were false or acted with reckless disregard for the truth.
Court allows "Baywatch" actor to take Playgirl case to trial
"Baywatch" actor Jose Solano Jr. appeared bare-chested and wearing red swim trunks on the cover of the January 1999 issue of Playgirl magazine. Headlines promised "12 Sizzling Centerfolds Ready to Score with You" and "TV Guys. Primetime's Sexy Young Stars Exposed."
To Solano, the photo - which was used without his consent- and the headlines told readers that they could find nude pictures of him inside the magazine. He sued Playgirl, claiming the cover humiliated and embarrassed him and cost him job offers, invitations to charity events and social contacts.
A trial judge dismissed Solano's lawsuit. But a panel of the U.S. Court of Appeals in Pasadena, Calif., (9th Cir.) overruled the trial judge on June 13 and decided a jury should hear Solano's claims that the magazine portrayed him in a false light and misappropriated his image for profit.
A jury should decide whether the photo on the cover created a false impression and whether Solano, as a public figure, can prove that the editors entertained serious doubts about the truth of the publication, the appeals court ruled.
"A jury reasonably could conclude that the Playgirl cover conveyed the message that Solano was not the wholesome person he claimed to be, that he was willing to - or was `washed up' and had to - sell himself naked to a women's sex magazine," Judge Raymond C. Fisher wrote for the three-judge panel.
Solano must prove actual malice to win his false light claim. An associate editor testified in a deposition that a senior vice president had ordered the staff to "sex up" the January 1999 cover to imply nudity. Concerns were raised in editorial meetings that the cover implied that Solano appeared nude inside the magazine, the associate editor testified.
Based on that testimony, "a jury could conclude Playgirl's editors knowingly or recklessly published the misleading cover," the appeals court held.
The appeals court also found that the trial judge prematurely dismissed Solano's misappropriation claim. The trial judge found that the claim must fail because publication of the photo was newsworthy.
The appeals court ruled that the newsworthiness exception does not apply when actual malice is proven. Since Solano …