If a sex photo or video is published online, it may be accompanied by libelous statements about the victim. For example, comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or is a porn star.
b. Text of the Statute
“Libel is a false and unprivileged publication by writing . . . or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”1
- Ferguson v. American Apparel, Inc., No. BC460331 (L.A. Super. Ct. filed Apr. 26, 2011).
This cause of action has been used successfully in cases that have settled before trial. The argument used in those cases is as follows:
- Libel is “a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”7 Libel that is “defamatory of the plaintiff without the necessity of explanatory matter,” is libel per se, or libel on its face, and is actionable without proof of special damages.8
The following publications have been found to constitute libel per se in California:
- MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 546 (Cal. 1959) (noting the breadth of the statutory definition of libel per se, and holding that a charge of communist affiliation, even if susceptible to an innocent interpretation, is libelous on its face).
- Walker v. Kiousis, 114 Cal. Rptr. 2d 69, 76 (Cal. Ct. App. 2001) (defamatory meaning of allegations that police officer was highly discourteous “would be immediately apparent to any reader without knowing the facts”).
- Selleck v. Globe International, Inc., 212 Cal. Rptr. 838, 846 (Cal. Ct. App. 1985) (article reporting that Tom Selleck’s father revealed his son’s “love secrets,” including that he was “ill at ease with women” to the newspaper was reasonably susceptible of a defamatory meaning on its face and therefore libelous per se).
- Barnes-Hind, Inv. v. Super. Ct., 226 Cal. Rptr. 354 (Cal. Ct. App. 1986) (Accusations of crime are “[p]erhaps . . . the clearest example of libel per se”).
If the above listed publications constitute libel per se, then the publication of a sexually explicit image or video of a plaintiff accompanied by false statements about the plaintiff likely also constitutes libel per se in California. For example, comments accompanying the photo/video in question may state that the victim is infected with a sexually transmitted disease, or is seeking sex in exchange for money, or is a porn star.
A New York trial court found that posting pornographic pictures of plaintiff linked to plaintiff’s name and photograph on other websites “allegedly falsely impl[ied] that [s]he [was] sexually lustful and promiscuous” and stated a cause of action for libel per se. Libel harmed the plaintiff’s online business of selling luxury handbags.9