In a case demonstrating the difficulties of applying long-established but arguably outdated legal principles to modern technology, the United States Court of Appeals for the Third Circuit last week reversed itself to permit a Philadelphia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.
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