Crump v. Beckley Newspapers, Inc., 15804

• Citation: 320 S.E.2d 70,173 W.Va. 699
• Decision Date: 10 November 1983
• Docket Number: No. 15804,15804
• Court: Supreme Court of West Virginia
• Parties: Sue S. CRUMP v. BECKLEY NEWSPAPERS, INC.

Page 70

320 S.E.2d 70

173 W.Va. 699

Sue S. CRUMP v. BECKLEY NEWSPAPERS, INC.

No. 15804.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Concurring in Part and Dissenting

in Part May 4, 1984.

Rehearing Refused July 11, 1984.

Syllabus by the Court

1. The essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury.

2. In determining whether a particular defendant is liable to a private individual for defamation, in the absence of a privileged communication, the standard is one of negligence, and the conduct of the defendant is to be measured against what a reasonably prudent person would have done under the same or similar circumstances.

3. Although libel is generally perpetrated by written communication, it also includes defamation through the publication of pictures or photographs.

4. Defamation may be accomplished through inference, implication, innuendo or insinuation, as well as through direct reference.

5. "Whether a written defamatory statement refers to a particular plaintiff, normally, is a question of fact for a jury." Syl. pt. 4, Neal v. Huntington Pub. Co. , 223 S.E.2d 792 (1976).

6. "The existence or nonexistence of a qualifiedly privileged occasion ... in the absence of controversy as to the facts, [is a] question [ ] of law for the court." Syl. pt. 3, Swearingen v. Parkersburg Sentinel Co., 125 W.Va. 731, 26 S.E.2d 209 (1943).

7. "Whether a conditionally privileged occasion was exceeded is a question of law for the court or fact for the jury, and depends upon the absence or existence of a controversy as to the facts bearing thereon." Parker v. Appalachian Electronic Power Co., 126 W.Va. 666, 672, 30 S.E.2d 1, 4 (1944).

8. An "invasion of privacy" includes (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that unreasonably places another in a false light before the public.

9. The "right of privacy" does not extend to communications which are privileged under the law of defamation; which concern public figures or matters of legitimate public interest; or which have been consented to by the plaintiff.

10. The protection afforded by the law of privacy is restricted to persons of ordinary or reasonable sensibilities, and does not extend to the supersensitive.

11. In order for a communication to constitute an appropriation, mere publication of a person's name or likeness is not enough, the defendant must take for his own use or benefit the reputation, prestige or commercial standing, public interest or other value associated with the name or likeness published.

12. Publicity which unreasonably places another in a false light before the public is an actionable invasion of privacy.

13. In the absence of a privileged communication, the test to be applied in a false light invasion of privacy action by a private individual against a media defendant is what a reasonably prudent person would have done under the same or similar circumstances.

14. A plaintiff in a false light invasion of privacy action may not recover unless the false light in which he was placed would be highly offensive to a reasonable person.

15. When the communication involved in a false light case does not clearly favor one construction over another, the determination of what light it places the plaintiff is for the jury.

McGRAW, Chief Justice.

The appellant in this case, Sue S. Crump, appeals from an order of the Circuit Court of Raleigh County granting summary judgment for the defendant/appellee, Beckley Newspapers, Inc. She asserts that the trial court erred in granting summary judgment because issues of material fact existed which should have been submitted for jury consideration. We agree and reverse the decision of the trial court.

On December 5, 1977, the defendant published an article in one of its newspapers concerning women coal miners. Photographs of the plaintiff, a miner with the Westmoreland Coal Company, taken with her knowledge and consent, were used by the defendant in conjunction with the article. Her name was specifically mentioned, and her picture appeared with Jacqueline Clements, another miner. After publication of this article in 1977, Crump had no contact with the defendant, and the defendant did not request permission to use her picture or name in any other newspaper article.

On September 23, 1979, an article entitled "Women Enter 'Man's' World" appeared in one of the defendant's newspapers. The article generally addressed some of the problems faced by women miners, and by women who desire employment in the mining industry. The article related incidents in which two Kentucky women were " 'stripped, greased and sent out of the mine' as part of an initiation rite"; in which a woman miner in southwestern Virginia was physically attacked twice while underground; and in which one Wyoming woman "was dangled off a 200-foot water tower accompanied by the suggestion that she quit her job. She did." The article also discussed other types of harassment and discrimination faced by women miners. Although Crump's name was not mentioned in the article, her 1977 photograph was used, ¹ accompanied by a caption which read, "Women are entering mines as a regular course of action."

As a result of the unauthorized publication of Crump's photograph in conjunction with the article, she states in an affidavit submitted below that she was questioned by friends and acquaintances concerning the incidents contained in the article and concerning whether she had been the subject of any harassment by her employer or by fellow employees. She had, in fact, experienced no such harassment. Crump also states that the article caused one reader to ask her whether she had ever been "stripped, greased and sent out of the mine." She alleges that the unfavorable attention precipitated by the publication of her photograph in conjunction with the article has damaged her reputation and caused her a great deal of embarrassment and humiliation. Therefore, she seeks recovery from the defendant for damages resulting from their unauthorized publication of her photograph.

After receiving a letter from Crump complaining about the unauthorized use of her photograph, the defendant offered to either (1) print a story prepared by Crump, along with her picture, explaining her position in the matter; (2) print a letter to the editor written by Crump criticizing the way in which the story was handled; or (3) publish a clarification, identifying the woman pictured as the plaintiff, and stating that Crump had never experienced any of the problems mentioned in the article. Because Crump was temporarily unemployed and did not want to jeopardize her standing with her former employer, with whom she desired to resume employment when it became available, she did not wish to call any more attention to the matter. Therefore, she declined the newspaper's offers to clarify any false impression left by the article. Subsequently, on June 13, 1980, Crump filed an action in the Circuit Court of Raleigh County against the defendant alleging, in substance, defamation and invasion of privacy.

Upon defendant's motion for summary judgment, the trial court held that (1) because the issue of women entering the coal industry was a matter of general public interest, the defendant had a qualified privilege to publish Crump's photograph in connection with the article; (2) because the article did not contain any false or defamatory statements or, in fact, make any direct reference to the plaintiff other than through the juxtaposition of her photograph with the article, the defendant acted in good faith and did not exceed or abuse its conditional privilege; and (3) therefore, the unauthorized publication of Crump's photograph did not constitute libel as a matter of law. Thus, it granted summary judgment for the defendant.

Because the trial court (1) limited its analysis of whether a qualified privilege existed to the content of the article, and did not adequately consider whether the use of plaintiff's photograph alone was privileged; (2) ruled as a matter of law, despite evidence from which different inferences and conclusions might reasonably be drawn, that the defendant did not abuse its privilege; and (3) failed to adequately consider invasion of privacy as an alternative theory of recovery, summary judgment was inappropriate, and we must therefore reverse.

I

The concept that a person's reputation in the community is precious ² and should not be injured with impunity had been well established since ancient times. Slander was expressly forbidden by the law of Moses. Exodus 20:16 (King James) ("Thou shalt not bear false witness against thy neighbour."); see also Deuteronomy 19:16-21 (King James); M. NEWELL, THE LAW OF DEFAMATION, LIBEL AND SLANDER 2-4 (1890). The Law of the Twelve Tables, compiled approximately three hundred years after the founding of Rome, provided that, "whosoever slanders another by words or defamatory verses, and injures his reputation, shall be beaten with a club." Id. at 6. Under Alfred the Great, King of the Saxons at the end of the ninth century, "the slanderer's tongue was excised unless he could redeem it by payment of his wer geld, which was the price on his life." A. HANSON, LIBEL AND RELATED TORTS 2 (1969), citing, Veeder, The History and Theory of the Law of Defamation, 3 Colum.L.Rev. 546, 549 (1903). Throughout the Middle Ages, the ecclesiastical courts exercised general jurisdiction over defamation, punishing it with penance. See W. PROSSER, THE LAW OF TORTS § 106, at 754-56 (1964). It was not until the reign of Henry VIII, that the common law courts began to...