Lewis or other professional athletes or public figures and the like are not published or broadcast for “advertising” or “trade” purposes, and thus the media is rarely called to task for publishing their likenesses. Provided the use of these photos is even remotely related to some type of news report, liability cannot result. Defenses to Invasion of Privacy Consent. When planning to publish or broadcast private facts about a private individual, such as an individual’s contraction of a hideous medical disease or details of an individual’s personal financial woes, you will be free from liability if that person consents to the publication of your story. However, keep in mind such consent can be withdrawn, revoked, or made subject to certain conditions, such as that person not be photographed or mentioned by name. In most circumstances, however, explicit consent from a news subject is not feasible, and thus is not legally required. It would be difficult, and highly impractical, for instance, to obtain consent from news subjects who are involved in accidents, riots and other public events. In these circumstances, consent is implied by virtue of the event taking place. Newsworthiness. The names, faces and activities of public officials and public figures almost always will be newsworthy, and thus a publisher or broadcaster cannot be held liable for sharing these images and activities with the general public. Where private individuals are involved, the law of privacy recognizes a defense whenever a publication concerns a matter of “public interest.” Thus, even an unwilling participant in a newsworthy event – such as a surviving victim of a plane crash – cannot hold you liable for publishing their image or a story about the harrowing ordeal. Even family members grieving in public over some tragedy cannot successfully maintain an invasion of privacy lawsuit. And if otherwise private information was legally gathered from a public record – for instance, publishing the identity of a rape victim gleaned from a police report – then no liability can ensue. Some Practical Tips Pre-publication review. Having a lawyer pore over your copy prior to publication or broadcast will not make your story libel-proof, but it can help. Good First Amendment lawyers are trained to spot discrepancies in a reporter’s news gathering efforts and can refine language to present the intended meaning of a phrase or sentence without running a risk of liability for libel. Nevertheless, most libel lawsuits do not stem from the lengthy, investigative pieces, which are the types of stories that are most often shared with lawyers prior to publication. Rather, they stem from the everyday, routine stories – stories about crime, children, or professionals (such as teachers, doctors and lawyers who trade on their reputation). Combined with a 24-hour news cycle in which news organizations rush to publish stories online, the questionable veracity of many online sources has increased the risk of libel actions. In the rush to post their stories online, competitive journalists must exercise discipline to ensure the accuracy of their reports. Often, a libelous report results from negligence rather than an intent to defame. The cautionary tales include headlines or cutlines that do not match the story, or stem from revisions or summaries prepared by those who were not involved in the fact-gathering process.
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