From the desk of Jeffrey D. Eberhard: Can a person sue a news provider for showing his or her image in a video without their consent? In this case, a prison guard and his wife sued a TV news station and reporter after the prison guard was shown in front of his home for a few seconds. The footage was taken because of a nearby shooting and the broadcast was allowed only if the prison guard would not be shown on TV. However, dozens of inmates saw the broadcast and the prison guard felt the need to move out of his house, incurring expenses and causing emotional distress.
What kind of defenses does a provider of news have? Read on to see how the Oregon Court of Appeals addressed these questions.Claims Pointer: Like many states, Oregon has enacted laws called “anti-SLAPP” (Strategic Lawsuit Against Public Participation) statutes that protect free speech activities. Oregon’s anti-SLAPP statute allows a defendant engaged in free speech to bring a special motion to strike the claim at the beginning of the case unless the plaintiff can show that he has a likelihood of winning his case. Here, the Court of Appeals reversed a trial court that erroneously determined that a defendants speech activities were not protected because they were not “necessary” to free speech. The Court clarified that the correct standard for determining if protected speech falls under the auspice of the statute is whether the claims arise out of conduct “in furtherance of” speech activities.
Mullen v. Meredith Corp., 271 Or App 698 (2015).
After a shooting in a Salem, Oregon neighborhood, KPTV news reporter, Mark Hanaran arrived at the scene with his camera crew and set up their camera pointing toward a row of homes, including that of Patrick and Sarah Mullen (The Mullens). During part of the recording, Patrick could be seen in the background in front of his home. Hanaran asked Patrick for permission to record his story in front of Patrick’s home, and Patrick agreed on the condition that he not be visible in the shot. Patrick, a prison guard at the Oregon State Penitentiary, which is located in Salem, was concerned that if he was seen on the news in front of his house, inmates and former inmates would be able to locate him and harm him or his family. Patrick had made significant efforts to conceal his identity by removing his information from public resources and not listing his home address or phone number on publicly accessible information.
That night, Hanaran’s story was broadcast on the nightly news without showing Patrick. However, the next morning, a longer clip was shown that depicted Patrick in front of his home for exactly 3.4 seconds. Patrick learned that he was on the news when he arrived at work. Several co-workers first told him that he had been on the news. Throughout the day, dozens of inmates said that they had seen him on the news. One of the inmates commented that he knew where Patrick lived based on the broadcast. The Mullens moved his family as soon as possible for fear of harm or intimidation by inmates. As a result of the quick move, the Mullens feared that they would have to sell their home in a short sell because they could not afford to pay both rent and a mortgage.
The Mullens sued Meredith Corporation, which operates KPTV, and Hanaran individually for breach of contract, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. The Mullens alleged that Hanaran had told Patrick that he wouldn’t broadcast any images of Patrick on the news. In response, KPTV and Hanaran filed a special motion to strike the Mullens’ claims under Oregon’s anti-SLAPP statute. The trial court denied the motion, concluding that KPTV had failed to meet its burden to demonstrate that the claims arose out of protected speech activity, because it was not necessary that KPTV show Patrick’s image on the broadcast to accomplish its goal of reporting the news, and was therefore not protected speech. KPTV and Hanaran appealed.
The Court of Appeals reversed the trial court because it failed to properly analyze the anti-SLAPP statute. The Court explained that ORS 31.150 provides a two-step analysis for determining whether a suit should be dismissed as a SLAPP suit. First, a defendant has the burden to show that its speech was protected. Second, if the defendant meets his burden, the plaintiff has the burden to show that it has a likelihood of winning its case. The Court found that the trial court narrowed the issue beyond statutory requirement of step number 1. Rather than ask whether the Mullens’ claim arose out of speech “in furtherance of” protected speech activity, it asked whether the conduct that gave rise to the claim was “necessary to the exercise of free speech.”
The trial court incorrectly examined the wrongfulness of the particular activity (showing Patrick on the news in a story unrelated to Patrick) instead of determining the broader question of whether KPTV’s conduct was protected under ORS 31.150(2). Furthermore, the Court pointed out that the Mullens actually conceded that the news broadcast was a matter of public interest as described by ORS 31.150(2)(d).
As to the Mullens’ burden to establish a likelihood of prevailing on their claims, the Court reasoned that the Mullens could not prevail on their claims as plead. The Court stated that the Mullens could not establish their negligence claim because their only injuries arose out of the oral contract that they had with Hanaran. Neither KPTV nor Hanaran had a duty independent of the contract that would give rise to a claim of negligence. The Court also determined that the Mullens’ infliction of emotional distress claims were unwinnable because the Mullens could not establish that KPTV had a special duty to not air Patrick’s image or that it had a duty to notify KPTV staff that Patrick could not be in the broadcast.
The Court of Appeals reversed the trial court judgment and ordered the court to grant the motion to strike under the anti-SLAPP statute.
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