Solano v. Playgirl, Inc.

Citation. Solano v. Playgirl, Inc., 292 F.3d 1078, 2002 U.S. App. LEXIS 11437, 2002 Cal. Daily Op. Service 5227, 2002 Daily Journal DAR 6636, 30 Media L. Rep. 1878 (9th Cir. Cal. June 13, 2002)

Synopsis of Rule of Law. To prevail on a false light claim, the plaintiff must show (1) Defendant disclosed to one or more persons information about or concerning plaintiff that was presented as factual but that was actually false or created a false impression about him, (2) the information was understood by one or more persons to whom is was disclosed as stating or implying something highly offensive that would have a tendency to injure plaintiff’s reputation, (3) by clear and convincing evidence, Defendant acted with constitutional malice, and (4) the plaintiff was damaged by the disclosure.  In addition, plaintiffs who are public figures or officials must also show that the Defendant knowingly or recklessly created the false impression.

Facts. The January 1999 issue of Playgirl magazine featured a cover photograph of actor Jose Solano, best known for his role as Manny Gutierrez on the television show Baywatch from 1996 to 1999.  Solano did not pose for or give an interview to Playgirl, nor did he consent to using his image, nor did he appear nude in the magazine.  Solano was shown shirtless and wearing his red lifeguard trunks, and surrounding him on the front cover were suggestive, offensive headlines and phrases describing the contents of the magazine.  This conveyed the message that Solano was not the wholesome person he claimed to be and indicated that we was washed up and had to sell himself naked to the magazine.  Inside the magazine on page 21 was quarter-page head and shoulders photo of him fully clothed, accompanied by a profile on him.  Significantly, Playgirl displays its magazines on newsstands packaged in plastic wrap so that ideally the cover cannot be seen unless a customer purchases it.  He sued Playgirl for false light, alleging that it deliberately created the impression that he gave permission to Playgirl, making it appear that he was willing to degrade himself and endorse the magazine.

Issue. Whether Playgirl committed the tort of false light by publishing Solano’s picture on the cover coupled with degrading and offensive headlines and phrases describing the content of the magazine.

Held. Yes.  To prevail on a false light claim, the plaintiff must show (1) Defendant disclosed to one or more persons information about or concerning Solano that was presented as factual but that was actually false or created a false impression about him, (2) the information was understood by one or more persons to whom is was disclosed as stating or implying something highly offensive. That would have a tendency to injure plaintiff’s reputation, (3) by clear and convincing evidence, Defendant acted with constitutional malice, and (4) the plaintiff was damaged by the disclosure.  In addition, plaintiffs who are public figures or officials must also show that the Defendant knowingly or recklessly created the false impression.  The court found that Solano met all criteria for establishing a false light claim.  Evidence that some editors had been worried about the possible false impression was sufficient to satisfy the last requirement.  Solano established damages by showing he was embarrassed.

Discussion.  Some courts have rejected the false light claim, arguing that it largely duplicates defamation claims or raises free speech problems.