In a case demonstrating the difficulties of applying long-established but arguably outdated legal principles to modern technology, the United States Court of Appeals for the Third Circuit last week reversed itself to permit a Philadelphia firefighter’s defamation and false light claims to go forward, based on the inclusion of his photograph in an online article describing a sex scandal. The court concluded upon considering the firefighter’s arguments for the second time that, in the context of an online article accompanied by pictures, specifically naming and showing an individual was sufficient to establish that an article was “of or concerning” that individual for purposes of a defamation or false light claim. However, the Third Circuit affirmed its prior dismissal of the plaintiff’s intentional infliction of emotional distress claim, finding that being implicated in a sex scandal did not rise to the level of being “extreme or outrageous.”
Central to the claims in the case was an article published on the New York Daily News website describing a sex scandal in which “dozens of firefighters were accused of scandalous behavior.” The text of the article appeared on the right column, while the left column contained two pictures readers could toggle between; one was a silhouette of an unnamed firefighter, while the other was of plaintiff and stated, “Philadelphia firefighter Francis Cheney holds a flag at a 9/11 ceremony in 2006.” This was the only reference to a specific firefighter in that article and on the following day, the Daily News published an additional article regarding the scandal but did not include the Cheney photograph.
Following a flood of messages from colleagues at the Philadelphia Fire Department, family, friends, and even strangers, Cheney brought suit against the Daily News alleging defamation, false light invasion of privacy, and intentional infliction of emotional distress. After the United States District Court for the Eastern District of Pennsylvania granted the Daily News’ motion to dismiss, Cheney appealed to the Third Circuit, which affirmed, but then granted rehearing and reversed its prior decision as to the defamation and false light claims.
In its initial decision, the Third Circuit affirmed dismissal of those claims because the article could not reasonably be understood to be of or concerning Cheney.
In its original ruling, the Third Circuit determined that Cheney could not show that the article was “capable of being reasonably understood as referring to him,” suggesting that “the caption makes clear that it is a stock photograph meant to illustrate firefighters in general, not those involved in the scandal.” However, upon rehearing, the Third Circuit delved deeply into relevant precedent and reversed its prior decision.
While the District Court ruled that the “caption made it clear that Cheney’s photograph was a stock photo,” the Third Circuit’s rehearing analysis concluded that was not the case. Rather, by considering defamation cases from the United States Supreme Court (1909) and the Supreme Court of Pennsylvania (1969), the Third Circuit found the article could be reasonably interpreted as concerning Cheney.
Pointing to the placement of the photograph directly next to the article’s text and underneath its headline, as well as the fact that the caption identifying Cheney was “the only reference to any firefighter,” the Third Circuit concluded that “a reasonable reader could conclude that the inclusion of his photograph and name meant to suggest that the text of the article concerned him,” thus satisfying the Pennsylvania standard for the “of and concerning” element of a defamation claim. The court also noted that it had the benefit of considering actual reasonable readers’ reactions, given the flood of messages concerning the scandal that Cheney received.
Based on its finding in the defamation claim, the Third Circuit also reversed its prior decision on Cheney’s false light claim, which the court dismissed based on failure to satisfy the same element. However, the Third Circuit affirmed its rejection of Cheney’s intentional infliction of emotional distress claim, finding that being implicated in a sex scandal did not rise to the level of “extreme and outrageous,” given that it was less offensive than conduct such as “mishandling a corpse, reckless diagnosis of a fatal disease, and having sexual contact with young children,” which Pennsylvania courts had previously held to satisfy that standard.
The Third Circuit’s surprising reversal of its own prior decision indicates just how difficult defamation and false light claims can be to assess and decide, when old precedents are applied to emerging technologies. The use of hyperlinks and easy and quick access to previously published materials, such as photographs, presents problems if used in a later story that may portray a different message or subject matter. While the internet provides publishers with new ways to present unique and exciting content quickly, it also creates challenges in managing and carefully vetting the content. Thus, training for journalists and editors during the onboarding process, as well as a discerning eye during publication, can help avoid defamation and false light claims, particularly when navigating newer media, such as publishing articles on websites, social media, or in apps.
 To establish a defamation claim in Pennsylvania, a plaintiff must establish that (1) the communication was defamatory; (2) the defendant published the communication; (3) the communication was of or concerning plaintiff; (4) the recipient would understand the defamatory meaning; and (5) the recipient understands that the communication is intended to be applied to plaintiff. To establish a false light claim, a plaintiff must show that (1) the false light in which an individual was placed would be highly offensive to a reasonable person, and (2) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter. Ultimately, both claims require a showing that a publication is “of or concerning” the claimant.