Friday, June 1, 2001
Use of Children’s Photo With Molestation Story in Magazine May Be Breach of Privacy—C.A
By KENNETH OFGANG, Staff Writer/Appellate Courts
A group of children whose Little League team photo was used in a Sports Illustrated story about a former coach convicted of child molestation will probably prevail in their invasion-of-privacy suit, the Fourth District Court of Appeal has ruled.
Div. Two Wednesday affirmed a San Bernardino Superior Court judge’s ruling denying Time Warner, Inc.’s motion—based on Code of Civil Procedure Sec. 425.16, the anti-SLAPP law—to strike a suit brought by eight children and two coaches.
The plaintiffs, from the Highland community, sued after the magazine published a cover story on molestation in youth sports, entitled “Every Parent’s Nightmare,” in 1999.
Among the cases reported on was that of Norman Watson, a former coach in Highland and elsewhere. Four of the children who sued claim to have been molested by Watson.
The ex-coach was sentenced to 84 years in prison, after pleading guilty in 1998 to 39 counts involving sexual misconduct with five children between 1990 and 1996. His case was featured not only in SI, but in other media outlets, including the Oprah Winfrey television show on which two men appeared and said they had been molested by Watson.
The photograph in SI that sparked the lawsuit included 18 people, among them the 10 plaintiffs and Watson. It featured a sign board identifying the team by name, and bore a caption indicating that Watson “coached for years not far from a hospital where he’d been incarcerated as a molester.”
The photograph was also used briefly on the television program “Real Sports” on HBO, which is also owned by Time Warner.
The plaintiffs claim that publication of the photo invaded their privacy by publicizing private facts. Time Warner argued that publication was protected by the First Amendment and moved to strike under Sec. 425.16.
The law provides that if a suit threatens a defendant’s rights of free speech or to petition for redress of grievances with respect to a matter of public interest, the defendant may bring a special motion to strike. The filing of the motion stays all proceedings pending the hearing, except the court may allow discovery, limited to the issues raised by the motion.
If the court finds that the statute applies, the burden shifts to the plaintiff to show a probability of prevailing
Justice Barton Gaut, writing for the Court of Appeal, agreed with Time Warner that the anti-SLAPP law applies. He noted that the Legislature has mandated that the law be given broad application, and said it was unquestioned that the suit implicated freedom of speech.
But Gaut agreed with the trial judge that the plaintiffs had met their burden of showing that they will probably win at trial.
The justice rejected Time Warner’s argument that the photograph wasn’t private because it was taken in public and involved sports activities that took place in public. It was also public knowledge that Watson was a convicted child molester and had coached the team prior to his arrest, Time Warner asserted.
But the evidence, Gaut said, showed that the individual children had not been widely linked to Watson prior to the publication of the photograph—which apparently was obtained from the parent of another Little League player and does not appear to have been widely circulated—and that they were subjected to harassment, ridicule and embarrassment once the photograph appeared.
Citing California Supreme Court decisions regarding the right of privacy, Gaut wrote:
“Time Warner apparently equates ‘private’ with ‘secret’ and urges any information not concealed has been made public. But the claim of a right of privacy is not ‘so much one of total secrecy as it is of the right to define one’s circle of intimacy—to choose who shall see beneath the quotidian mask.’ Information disclosed to a few people may remain private.”
Gaut went on to distinguish a number of cases in which the rights of the press have been held paramount over invasion-of-privacy claims, noting that all of those cases involved adults and none involved victims of sex crimes.
Public policy, the justice said, favors confidentiality for both minors and sex-crime victims. He also cited declarations from two journalism experts opining that use of the faces of the team members was inconsistent with professional standards and that the images should have been obscured.
The adult plaintiffs, Gaut acknowledged, have a weaker claim than the children. But because the statute is directed at causes of action, rather than at individual plaintiffs, a determination that any plaintiff is likely to prevail permits all plaintiffs to continue the suit, he reasoned.
The case is M.G. v. Time Warner, Inc., 01 S.O.S. 2571.