Tuesday, February 9, 2016
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C.A. Says Photographer’s Suit Against Getty No SLAPP
Panel Says ‘Ordinary Workplace Dispute’ Not Matter of Public Interest
By KENNETH OFGANG, Staff Writer
A photographer who used to work for Getty Images can sue the company on claims that it defamed him with false accusations of employing physically aggressive behavior against a colleague, the Court of Appeal for this district ruled yesterday.
Div. Three, in an unpublished opinion by Justice Richard Aldrich, affirmed Los Angeles Superior Court Judge Steven Kleifield’s order denying Getty’s motion to toss the suit by Paul Hebert.
Hebert is a freelance photographer who covers “red carpet” events, such as film premieres and award shows. He was working for both Getty and InVision before he and Getty ended their relationship in early August 2013.
Shortly after the relationship ended, Karl Walter, director of editorial photography at Getty, sent an email to six managers at InVision, claiming that when Getty stopped working with Hebert, “the chip he had on his shoulder got bigger” and he “laid hands on one of our photographers.”
He also sent an email to photographers working regularly with Getty, saying Hebert “is no longer affiliated with our team,” that “he can be aggressive both emotionally and physically,” and that he might try to stake out spots reserved for other photographers to gain better positioning for himself. Walter urged the recipients to contact him if they had problems with Hebert.
Hebert sued Getty and Walter a month later. He said that being stable and “level-headed” were important in the profession and that Walter’s claims were false and would damage his ability to perform his occupation.
Anti-SLAPP Motion
The defendants argued in an anti-SLAPP motion that the emails were protected activity involving a matter of public interest, namely the behavior of celebrity photographers. They further argued that Hebert could not prevail because the statements were protected opinion and were subject to the common interest privilege.
They supported the motion with declarations from the photographer who was allegedly pushed by Hebert at the event precipitating the emails, as well as from another Getty photographer who said that Hebert threatened him at an event months earlier.
Hebert responded with declarations from several photographers who had been at events with him including the two mentioned in the declarations offered by Getty. The declarants all said they had never seen Hebert act violently or unprofessionally.
He also submitted his own declaration, suggesting that Getty was retaliating against him because of his work for InVision, which was founded by people who used to work for Getty.
Kleifield agreed the statements implicated free speech rights with respect to an issue of public interest. But he held that the plaintiff had established a sufficient likelihood of winning the suit to withstand the motion.
Aldrich, writing for the Court of Appeal, said the trial judge reached the correct result, but that he was wrong in holding that an issue of public interest was involved.
“People may be interested in the subjects of Hebert’s photographs, but that is different than a public interest in Hebert,” he wrote. “That Hebert photographs people who are in the public eye does not, by itself, make Hebert a public figure.”
Hebert’s conduct, he went on to say, was of obvious interest to the recipients of the emails, “[b]ut there was no showing his behavior affected people other than Hebert’s colleagues.”
Size and Power
Aldrich acknowledged that some courts have “found that matters of concern only to a small segment of society can be ones of public interest.” He cited, among other cases, Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, which held that the size and power of an organization may make its internal operations a subject of public interest.
“But when the issue is of interest to only a limited segment of the public, to be protected the activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance,” the justice wrote.
Nor would the “interest in maintaining safe workplaces,” as the trial judge put it, support the requisite finding, Aldrich said, because “the primary focus of the communications involved an ordinary workplace dispute.”
Attorneys on appeal were Davis Wright Tremaine’s Kelli L. Sager and Dan Laidman for the defendants and Marcus A. Mancini and Christopher M. Barnes of Mancini & Associates, along with Benedon & Serlin’s Gerald M. Serlin and Wendy S. Albers, for the plaintiff.
The case is Hebert v. Getty Images (US), Inc., B255762.
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