Disclaimer Does Not Immunize Allegedly Defamatory Photograph
Disclaimers accompanying photos used to illustrate controversial topics can sometimes cure potential defamation problems before they materialize. But, as illustrated by a recent case in the U.S. First Circuit Court of Appeals, a disclaimer, at the very least, needs to be carefully worded and carefully placed to provide an adequate antidote to litigation.
The case, Stanton v. Metro Corporation, decided February 23, 2006, arose from an article appearing in the May 2003 issue of Boston Magazine, titled “Fast Times at Silver Lake High: Teen Sex in the Suburbs.” The article featured a photo of five young people – including the plaintiff, Stacy Stanton – that spanned a full one-and-a-half pages. The gist of the article was that teenagers in the greater Boston area have become more sexually promiscuous in recent years, as demonstrated by statistical and anecdotal evidence – including revealing interviews with a number of high school students. The bottom of the article’s first page bore a disclaimer in smaller type than the overhanging text, headlines and byline, stating that “the photos … were from a … project on teen sexuality … of individuals unrelated to the people or events described in this story.” Despite the disclaimer, Stacy Stanton sued for defamation, claiming that the juxtaposition of the photo and the text describing suburban teenage promiscuity “insinuated that she was involved in the activity described in the article.”
Metro Corporation, Boston Magazine’s publisher, moved to dismiss the defamation complaint largely on the ground that “the disclaimer adequately negate[d] the negative connotations about the plaintiff otherwise arising from the article and the photograph.” The U.S. District Court for the District of Massachusetts granted the motion. The Court found that no reasonable reader was likely to miss the impact of the disclaimer, as it appeared on the first page of the article, and because “the reasonable (or average) reader can be expected to read at least the first page of a six-page article.”
A First Circuit panel reversed. The appeals court, at the outset, rejected the District Court’s assumption that placing a disclaimer on the first page of an article ensures that a reasonable reader will see it. It then examined the size, placement and content of the disclaimer.
According to the Court, the disclaimer was surrounded by content of larger font, making it easy to overlook. The disclaimer, the Court said, was even easier to miss because the layout of the article signaled a jump to the next page before the disclaimer was reached. “We cannot say that no reasonable reader would follow this visual signal and simply flip to the next page after reading the entirety of the text on the first page, but before reaching the disclaimer.”
According to the appeals court, the language of the disclaimer also failed to accomplish its purpose because it, too, insinuated that the plaintiff was promiscuous. The Court viewed the disclaimer’s attribution of the photos “from an award-winning five year project on teen sexuality” as suggestive to the average reader that “the teenagers depicted in the photograph have some connection to the accompanying story.”
Apart from its findings of deficiencies in the disclaimer’s text and layout, the appeals court also expressed skepticism as to whether a disclaimer could be effective in a general circulation publication. The Court noted that “the public frequently reads only the headline of the article or reads the article so hastily or imperfectly as not to realize its full significance.” Accordingly, “some percentage of readers who see the article, particularly casual readers who only glance at it or skim it, will ignore the disclaimer.”
Because the appeals court determined that it was impossible to conclude that “no reasonable reader would disregard the disclaimer,” it rejected the District Court’s holding that a sufficient segment of the population would not view the plaintiff in a negative light. “[W]e cannot say as a matter of law that too few readers would overlook the disclaimer to constitute a considerable and respectable segment of the community. The article is thus reasonably susceptible to a defamatory meaning.”
The appeals court remanded the case for further proceedings. Before it returns, however, Metro Corporation has indicated its intention to seek en banc review by the full First Circuit.