Navy SEALS sue AP

[BMT (RIP)]

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1000742675

AL and RL whats you take on this suit??

BMT

[Roguish Lawyer]

I am surprised to see MoFo taking a case like this. They usually do really liberal stuff like death penalty appeals. San Diego is a pretty conservative place, though. Could be a rogue office. LOL

I'll do some digging and see if I can give you some good info and analysis. The story doesn't really give enough information about the lawsuit to evaluate it. But the SEALs are represented by a big, national law firm. That's good for them, as long as they're not paying the bills! LOL

[Airbornelawyer]

But the SEALs are represented by a big, national law firm. That's good for them, as long as they're not paying the bills! LOL
Their attorney, James W. Huston, is a retired Commander who served in Naval Aviation on active duty and as a naval intelligence officer in the Reserves.

[Doc T]

weren't the photos taken off of an internet public site? How can you sue for what is already been shown by your family on a public domain?

doc t.

[Roguish Lawyer]

Have not found the complaint yet, but here is the press release issued by the law firm.

http://www.mofo.com/news/pr.cfm?concentrationID=18&ID=1406&Type=1

[Roguish Lawyer]

It was just filed today, so it is not yet on the court's docket. I e-mailed the lawyer and asked for the complaint. If he doesn't send it, I'll get it from the court and post it for everyone.

[Roguish Lawyer]

weren't the photos taken off of an internet public site? How can you sue for what is already been shown by your family on a public domain?

doc t.

Well, that is a problem, but I suspect there is a factual question about how "public" that site is, and whether the person posting photos there had a "reasonable expectation of privacy." Many of those sites require passwords, for example.

There certainly are some claims that can be alleged here, but I think they may face an uphill battle because this arguably is a matter of public interest giving rise to a First Amendment defense. The SEALs will need some good lawyering, and it looks like they've got themselves a good lawyer.

[Roguish Lawyer]

OK, he replied with a polite excuse for not sending me the complaint, but he did give me the case number so I can get it more easily from the Court. I should have it soon, but I'll be out tomorrow. Will post when I return.

He did let me know that they are handling the case pro bono (free).

[CommoGeek]

I like the fact that their domain name is "mofo". That shows some moxie, I like that.

[vsvo]

Here's an excerpt from Hettena's AP article, dated 12/4/04. He purchased reprints from the site where the pics were posted, before it was password protected, and also found some in Google's cache.

"The images were found through the online search engine Google. The same search today leads to the Smugmug.com Web page, which now prompts the user for a password. Nine scenes from the SEAL camp remain in Google's archived version of the page.

'I think it's fair to assume that it would be very hard for most consumers to know all the ways the search engines can discover Web pages,' said Smugmug spokesman Chris MacAskill.

Before the site was password protected, the AP purchased reprints for 29 cents each. "

AP article (http://www.signonsandiego.com/news/military/20041204-0001-ca-seals-prisonerphotos.html)

[Roguish Lawyer]

I have read the complaint. It is well-drafted. There are four causes of action alleged: (1) Invasion of Privacy; (2) Publication of Private Facts; (3) False Light; and (4) Intentional Infliction of Emotional Distress. I believe that all of the claims are adequately alleged, but may be subject to defenses appearing on the face of the complaint including a First Amendment defense.

Factually, the complaint alleges that the web site was not a commercial photo-sharing site, but rather a semi-private server that was thought to be secure against third-party intrusion. The case will turn primarily on whether there was a reasonable expectation of privacy and whether there is a First Amendment defense, IMO. The biggest problem the SEALs have is that they may be public figures and their conduct may be a matter of public interest within the core of First Amendment protection. On the other hand, the complaint focuses in large measure on the fact that the story could have been published without revealing their identities, and it is principally the disclosure of identities that is alleged to have caused harm.

Should be interesting. I will follow the docket and try to keep you guys posted if there is interest.

[CommoGeek]

Should be interesting. I will follow the docket and try to keep you guys posted if there is interest.

There is here. Thank you for speaking in relatively small words. I actually understood a legal post on this board for once. ;)

[Airbornelawyer]

As I noted in my e-mail, I may be wrong, but I thought the First Amendment was an affirmative defense. Therefore, the defendants would have to raise it at trial.

If there is enough to the plaintiffs' claims to survive the defendants' motion to dismiss, and they have to wait for a public trial to make the First Amendment defense, they may seek to settle instead, in order to avoid bad publicity.

I really don't know this area of law very well, so I could be completely ate up on this.

[Roguish Lawyer]

As I noted in my e-mail, I may be wrong, but I thought the First Amendment was an affirmative defense. Therefore, the defendants would have to raise it at trial.

It is, but you can raise affirmative defenses at the pleading stage if they appear on the face of the complaint. I think the First Amendment defense arguably does here.

Also, don't forget there is summary judgment before trial.

Although I haven't researched it, I suspect that there are very significant constitutional issues of first impression here, so we could see pretrial appeals taken from decisions on early motions.

[Roguish Lawyer]

Here is the complaint. Thanks to Martin for hosting it.

http://www.pmfp.net/fileupload/store/sealscomplaint.pdf

[Bravo1-3]

I'd be interested in following this as well.

Question for the legal beagles: Under First Cause of Action, why is AP liable for this, but SmugMug is not? Were the photographs not left in the protection of SmugMug? If so, are they not liable for the breach that allowed them to be discovered in the first place?

SmugMugs TOS were violated as per the complaint, but it looks to me like SmugMug was negligent in protecting the photos in the first place. There are about a dozen ways to protect photos from being copied by people that I am aware of, and they seem to have not done that. In addition, the fact that they would allow a google photo hit. That is detectable, and is therefore preventable.

None of the above excuses AP or Hettena's unscrupulous and malicious conduct in the matter at hand. I'm just curious as to how SmugMug gets a pass on this.

[Roguish Lawyer]

I'd be interested in following this as well.

Question for the legal beagles: Under First Cause of Action, why is AP liable for this, but SmugMug is not? Were the photographs not left in the protection of SmugMug? If so, are they not liable for the breach that allowed them to be discovered in the first place?

SmugMugs TOS were violated as per the complaint, but it looks to me like SmugMug was negligent in protecting the photos in the first place. There are about a dozen ways to protect photos from being copied by people that I am aware of, and they seem to have not done that. In addition, the fact that they would allow a google photo hit. That is detectable, and is therefore preventable.

None of the above excuses AP or Hettena's unscrupulous and malicious conduct in the matter at hand. I'm just curious as to how SmugMug gets a pass on this.

SmugMug did not publish the pictures without consent. Presumably, whatever it did was at the direction and with the consent of the individuals who uploaded the photos. So I don't see any basis for an invasion of privacy claim.

As far as a claim for negligence goes, I suppose you could try it, but the agreement between smugmug and the photo uploaders may preclude such a claim. Also, there may be no desire on the plaintiffs' part to sue smugmug, or issues about its ability to pay a judgment.

[Bravo1-3]

I was thinking about this, and came to about the same conclusions, but I also think that smugmug would make a better witness if they knew they were getting a pass.

Looks like a good topic to break in my new subscription to Wests on when it gets activted next week. :D

[Roguish Lawyer]

Looks like a good topic to break in my new subscription to Wests on when it gets activted next week. :D

Use it for NDD's thread on Gitmo too. He'd like that, I'm sure.

[Bravo1-3]

I think that any law related to that kind of thing would be pre-1984 (like 1940's era for the basis), but it might be an interesting couple of hours. I've got a student subscription that goes live on January 3rd. I'm sure it's limited as to how broad it is, but $30 for 1 year of unlimited use can't be a bad thing :D

But I'm sure NDD would appreciate a few paragraphs of Lawyer-Speak in his thread :D

[NousDefionsDoc]

Tell Hettna How You Feel (http://www.neverwillbes.com/index.php?op=showstory&storyid=695)

[Roguish Lawyer]

A little old, but an update nevertheless:

http://www.ap.org/pages/about/whatsnew/wn_040805.html

04/08/2005

AP seeks to dismiss lawsuit over Iraqi prisoner photos

SAN DIEGO (AP) _ The Associated Press asked a federal judge Friday to dismiss a lawsuit claiming the news agency violated copyright and privacy laws by publishing photos of Navy SEALs and Iraqi prisoners posted online by a serviceman's wife.

The AP argued that the case should be dismissed because the plaintiffs cannot demonstrate a probability of winning and that the lawsuit is an attempt to punish the news organization for "truthful, accurate and balanced" reporting.

The lawsuit was filed last month by five Navy SEALs and the wife of one of the special forces members. One of the SEALs since has dropped out.

The plaintiffs are seeking unspecified damages and want the court to bar the AP from further use of the photos and to require the news agency to protect the SEALs' identities.

Plaintiffs' attorney James W. Huston said he has not yet seen the appeal, but expected the AP would cite California's law that allows quick dismissal of lawsuits aimed at stifling free speech.

"They're going to have difficulty getting that motion granted," Huston said. "We're not saying they shouldn't write a story, only that they should obscure the faces."

The photos, which were distributed worldwide with a Dec. 3 story, appear to show the servicemen in Iraq sitting on hooded and handcuffed detainees and also what appear to be bloodied prisoners, one with a gun to his head.

The story said the Navy had launched a formal investigation into the photographs after being shown them by an AP reporter, adding that the photos did not necessarily depict any illegal activities.

The AP later reported that the Navy's preliminary findings showed most of the 15 photos transmitted by the agency were taken for legitimate intelligence-gathering purposes and showed commandos using approved procedures.

In its motion to dismiss the suit, the AP said that the photos were freely available to the public on the Internet, despite steps the wife could have taken to limit their accessibility. In addition, the news agency noted, the Navy never asked the AP not to publish them.

AP cited California's "anti-SLAPP" (Strategic Lawsuit Against Public Participation) law, intended to allow quick dismissal of meritless cases aimed at stifling free speech.

The AP also argued that the one federal claim of copyright infringement lacks merit, in part, because the agency's use of the photos for legitimate newsgathering purposes is a "fair use" allowed under federal copyright law.

The original AP story said the photographs were found on a commercial photo-sharing Web site, Smugmug.com, and were brought back from Iraq by the husband of a woman who was keeping them in a digital photo album there.

According to the suit, the woman incorrectly believed the nearly 1,800 photos she posted on the Internet site were protected from access by unauthorized users and required a password to view.

The SEALs' lawsuit contended that the AP and the story's writer, San Diego reporter Seth Hettena, violated the woman's privacy and also the copyright of the photographer by using the photos without permission.

[Roguish Lawyer]

Turns out the lawyer writes fiction books too.

http://www.jameswhuston.com/

[Roguish Lawyer]

I pulled the docket. The motion has been fully briefed and is scheduled to be heard on May 24. I ordered some of the papers and will post something about them eventually.

[Roguish Lawyer]

I ordered some of the papers and will post something about them eventually.

Apparently they are not available on-line. Too expensive to send someone down to San Diego to get them, but I'll continue to track the case to the extent I can and post reports once in a while.