Eye on Image-Making: Photographers and the Law, Part 3

One of the legal issues that can snare an unwary photographer is defamation, which means harming the reputation of another person. Defamation when printed or broadcast is called libel, whereas spoken defamation is slander.

How can a photograph or a video harm someone’s reputation? Sometimes, the visual image implies something about the people being pictured that is untrue and defamatory.

Setting Yourself Up for Libel

Jay Bender is the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina’s School of Journalism and Mass Communications, and a lecturer at the university’s law school. He is also an attorney for the South Carolina Press Association and the South Carolina Broadcasters Association.

Bender describes the following scenario. A newspaper photographer was assigned to illustrate a story about drinking in public parks. In his mind, the photographer imagined a photo-illustration in which any people pictured would be unrecognizable.

So, he gathered a bunch of empty beer cans, found a group of young people, posed them on a picnic table, and placed the beer cans in the foreground.

Newspaper Goofs

Unfortunately, the newspaper he worked for ran the photograph unaltered, and the faces of the youths showed up clearly.

What’s worse, says Bender, is that the young people were part of a Sunday school class having a picnic in the park.

Were the photographer and his newspaper at fault? Certainly, Bender says. “Because they weren’t drinking in the park. Is that a problem? Yes. Where you juxtapose different images and different scenes and sounds to create an impression that’s not the reality, you’re exposed to a libel claim.”

Can Video Defame?

How would this play out if the medium were video instead of still images? Are there defamation issues that can arise when you edit your video to combine scenes shot at different times? Yes again, says Bender.

If you combine footage shot at different times and in different places to give the impression that the action was happening at the same time in a single location, the resulting falsehood could be defamatory if it injures someone’s reputation.

Words, Music, and Audio

Sometimes, it may not be the visual images themselves that are defamatory, but rather the accompanying words, music or other audio.

A San Francisco photographer was sued when the magazine he was shooting for published his pictures of young people hanging out on the street after dark with captions that implied they were gang members.

Even though he claimed not to have mentioned gangs in his notes, both the photographer and the magazine were sued by the families of the young people. The pictures alone were not defamatory—but they became so when married to inaccurate captions.

A Hypothetical Situation

Could music or a voice-over narration turn a video documentary into fodder for a libel suit? Consider the following hypothetical situation.

You are filming a slice-of-life feature story on the nightlife in your home town. You get colorful footage of people hanging out in front of bars and restaurants, strolling arm in arm, enjoying themselves. You go inside a few clubs and shoot bands playing and couples dancing.

To jazz up your video story, you decide to add some music. To go with a shot of several young women hanging out in front of a bar, you lay in an audio track of Roy Orbison singing “Pretty Woman.” For your next shot, a group of guys walking by the bar, the music changes to the theme from Jaws.

Now, what about narration? As we zero in on the young women, we hear a somber voice say “Prostitution is on the rise in small-town America, and police are helpless to stop it.” Suddenly your slice-of-life feature story becomes a crime-busting expose’ of hookers and their johns.

The Libel Zone

OK, admittedly this is an extreme example. But clearly, text, narration, music, and other audio can completely change the meaning of visual images—and push an otherwise truthful story into the libel zone.

We all know how easy it is to edit video and mix in various audio tracks. Just use caution and make sure that you are presenting a truthful picture—and not one that could be interpreted as defamatory.

Now, in the example I just gave, what if you had gotten model releases from everyone in the video—would you have been protected from a libel suit? Sorry, a model release protects you against a claim for invasion of privacy, not defamation.

Defenses to a Defamation Claim

Truth is an absolute defense to a defamation claim—so if the women had, in fact, been hookers and the men their johns, you would be in the clear.

Also, under the “substantial-truth doctrine”—which applies in many jurisdictions—you will be judged on the essence of your total presentation, not on minor, inconsequential errors of fact.

You cannot be successfully prosecuted for defamation if your images, words, music, and other audio truthfully represents what your subject said or did, Bender said. “But if you take answers out of sequence and create the impression that I have said something I haven’t said—and if that were injurious to my reputation—then I would have a libel claim.”

And the more the distortion, the greater potential for libel, Bender said.

To protect yourself, be a careful researcher. Get correct spellings of people’s names, use their middle initial, and take nothing for granted, not even from “official” sources. Don’t jump to conclusions or make implications. Let the facts speak for themselves.

Finally, most states allow you to publish a retraction if you are threatened with a libel suit—and this may end the legal action against you.

How Can They Say That?

If publishing untruths that damage someone’s reputation is legally risky, how does Al Franken get away with calling Rush Limbaugh “A BIG FAT IDIOT” on the cover of his book? How do the supermarket tabloids evade libel suits from Tom, Jennifer, Brad, and Angelina? How come the “birthers” get to claim that President Obama isn’t a U.S. citizen?

It all comes down to the legal status of the person bringing the libel suit. If they are deemed to be a public official or a “public person,” they have almost no chance of winning. Why?

Actual Malice

In 1964, the U.S. Supreme Court ruled in New York Times Co. v. Sullivan that a public official cannot win a libel suit relating to their official conduct unless they prove “actual malice.”

In other words, the alleged defamatory material has to be published “with knowledge of its falsity or with reckless disregard of whether it was true or false.”

The Court later extended the same nearly insurmountable standard of proof to people who wind up in the public spotlight—through their position in society, their own actions, or by being caught up in newsworthy events.

For private individuals, states are free to devise their own standard of proof for defamation—but at minimum there has to be negligence on the part of the plaintiff. And for punitive damages, there has to be actual malice.

Friction with the First Amendment

There is obvious friction between defamation and the First Amendment, which says that Congress shall make no law abridging freedom of speech or of the press.

In fact, former U.S. Supreme Court justice Hugo Black viewed defamation suits against the press as an inherent violation of the First Amendment.

On the other hand, former justice Potter Stewart called defamation suits necessary to uphold “the essential dignity and worth of every human being.”

What Do You Think?

Should libel laws be tightened or loosened? Are there too many restrictions on how we express ourselves, or have we become too permissive as a society? Have you ever been involved in a situation where someone’s reputation was at stake? How would you feel if that someone were you?

As always, I’d love to hear from you!

The material in this column comes from a chapter I wrote on media law for Videojournalism: Multimedia Storytelling, a new textbook by Ken Kobré, professor of photojournalism at San Francisco State University and author of Photojournalism, the Professionals’ Approach, now in its sixth edition. Focal Press will publish Kobré’s new book in 2011.

2 Responses to “Eye on Image-Making: Photographers and the Law, Part 3”

  1. It should be simple in practice: If you're on a news assignment, don't fake it. Document it and be honest.

    I still think 99.9% of PJs follow this route. We hear about a few bad apples that become big news stories, but industry-wide most want to show the truth.

    I still get sickened when networks try to sensationalize the most trival stories to attract viewers. Should be used to it by now, but my stomach still turns when threy throw out misleading hooks to get viewers to stick around through the commercial break.

  2. Used to be we shot photos of what we saw, rather than doctor up events to fit the story.
    But we are not considered to be photographers any more, but "content providers" and the really important person is the graphic designer/page designer/graphic artist who can do whatever they want to your "content" with a nary a word or contribution from you. Oh modern day, how wonderful thou art...

Leave a Reply