Freihofer v. Hearst Corp.

• Decision Date: 30 May 1985
• Citation: 480 N.E.2d 349,490 N.Y.S.2d 735,65 N.Y.2d 135
• Parties: , 480 N.E.2d 349, 12 Media L. Rep. 1056 Wayne D. FREIHOFER, Respondent-Appellant, v. HEARST CORPORATION, Doing Business as Capital Newspapers Group, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 735

490 N.Y.S.2d 735

65 N.Y.2d 135, 480 N.E.2d 349, 12

Media L. Rep. 1056

Wayne D. FREIHOFER, Respondent-Appellant, v. HEARST CORPORATION, Doing Business as Capital Newspapers Group, Appellant-Respondent.

Court of Appeals of New York May 30, 1985.

Thomas F. Gleason and Peter L. Danziger, Albany, for appellant-respondent.

Edward R. Feinberg, Albany, for respondent-appellant.

OPINION OF THE COURT

KASSAL ^*, Judge.

Does the publication by a newspaper of an article relating to the details of court files in matrimonial proceedings rendered confidential by Domestic Relations Law § 235, give rise to a cause of action for (a) invasion of privacy under Civil Rights Laws §§ 50 and 51, (b) prima facie tort or (c) intentional infliction of emotional distress?

This action was brought to recover damages resulting from the publication of three newspaper articles, relating to a matrimonial action between plaintiff and his wife. The complaint alleges that the publications were in violation of Domestic Relations Law § 235(1), which provides in respect to matrimonial actions: "An officer of the court * * * or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings, affidavits * * * or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court."

The three news articles were published in defendant's The Times Union on September 26 and December 31, 1982 and in the Knickerbocker News on December 31, 1982. The publications reported some of the marital difficulties experienced by plaintiff, one of the principals of the Charles Freihofer Baking Company, a well-known company engaged in the sale of baked goods and associated products for more than 70 years. It is undisputed that the factual content of the articles was obtained from confidential court records. The September 26th article, captioned "Freihofer's Fighting Over the Dough," quoted extensively from affidavits filed in the marital suit in connection with a pending application for exclusive occupancy of the marital residence, an estate in Loudonville, in which the Freihofers had lived during their 10-year marriage. Included in the article were charges and countercharges of mental and physical cruelty and adultery which formed the legal basis for the matrimonial action.

Following the first publication, plaintiff's attorneys wrote to The Times Union on October 1, 1982, objecting to the publication of the story and the use of plaintiff's photograph, advising as to "the statutory confidentiality protecting court papers of this kind" and demanding that there be no further publication or commentary about "the marital discord" between the parties. Nevertheless, on December 31, 1982, The Times Union published its second news story, covering the Appellate Division's reversal of Special Term's order, which had ordered the wife to leave the marital abode and set a hearing on the issue of temporary custody of their son. On the same day, the Knickerbocker News carried a similar story that a hearing had been directed to determine exclusive possession of the Loudonville home and referring to the charges and countercharges of "abusive and cruel behavior."

Defendant admits having reviewed court records in connection with the preparation of the news articles. However, it denies any violation of Domestic Relations Law § 235, contending that papers and pleadings in court actions, including matrimonial suits, are readily available for inspection at the county clerk's office and the Appellate Division; such an examination is "not an uncommon practice" in the preparation of a news story; and the news media "regularly" reports with respect to matrimonial proceedings which affect the public interest. In addition, the motion was argued in open court and the proceedings were available to the public, including the press. Furthermore, it contends it did exercise discretion by omitting from publication many of the personal details relating to the marital action, contained in filed court papers, which would have subjected the parties to unnecessary ridicule or embarrassment and that the stories merely reported the facts, without any sensationalism. Defendant urges that, notwithstanding the cloak of confidentiality under Domestic Relations Law § 235(1), it did not violate the statute, which is directed only to officers and clerks of the court and, in any event, considering the prominence of the Freihofer family in the Albany area and the extensive television and newspaper advertising to promote the Freihofer name, the articles did deal with matters of legitimate public interest and concern.

Plaintiff, on the other hand, alleges that the publications were improperly based upon examination of matrimonial court records. As a result, he says he suffered extreme emotional and physical distress, which affected his business and private relationships, diminished his standing in the community, subjected him to public scorn and ridicule and impaired his social life. The complaint for compensatory and exemplary damages contains 12 causes of action: invasion of privacy under Civil Rights Law §§ 50 and 51 (first, fifth and ninth causes of action); intentional infliction of emotional distress (second, sixth and tenth causes of action); prima facie tort (third, seventh and eleventh causes of action); and abuse of process (fourth, eighth and twelfth causes of action).

Special Term dismissed the causes of action for abuse of process and prima facie tort and granted summary judgment dismissing the causes of action for intentional infliction of emotional distress. In doing so, it held (1) no cause of action existed for abuse of process in that there had not been a regularly issued process, civil or criminal, compelling the performance or forebearance of a prescribed act (Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278); (2) no claim for relief could be asserted with respect to the violation of Domestic Relations Law § 235, which, by its terms, applied only to an "officer of the court * * * or his clerk"; and (3) insufficient proof had been offered to demonstrate that the publication amounted to outrageous conduct so as to constitute the tort of intentional infliction of emotional distress. Special Term also denied defendant's motion for summary judgment to dismiss the first, fifth and ninth causes of action for violation of Civil Rights Law §§ 50 and 51, and plaintiff's cross motion for summary judgment, concluding that there was an issue as to whether the publication of the articles and use of plaintiff's name and photograph were of legitimate concern to the public.

The Appellate Division unanimously affirmed (102 A.D.2d 974, 477 N.Y.S.2d 847), observing, in part, with respect to liability under Domestic Relations Law § 235: "One may publish details of a divorce action based on files obtained without court order unless publication thereof is otherwise tortious (Shiles v. News Syndicate Co., 27 NY2d 9, 313 NYS2d 104, 261 NE2d 251 cert den 400 US 999)." (102 A.D.2d, at p. 975, 477 N.Y.S.2d 847.) It concluded, however, that there was no statutory violation since the legislation applied only to court personnel. As to those causes of action predicated upon Civil Rights Law §§ 50 and 51, it agreed with Special Term that there were factual issues, as to whether the articles were newsworthy and of public interest or were published merely to increase circulation, which, it held, would violate the statute.

We disagree and, accordingly, modify to dismiss the first, fifth and ninth causes of action under the Civil Rights Law.

CIVIL RIGHTS LAW §§ 50 and 51

Sections 50 and 51 of the Civil Rights Law make actionable the use of one's "name, portrait or picture" for advertising or trade purposes, without securing the person's consent. The statute created a limited right of privacy, which had not existed prior to the enactment (see, Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442). In Roberson, it was held that any protection to be accorded for the unauthorized use of one's name or photograph was a matter for the Legislature and could not be created by judicial pronouncement. The legislative response came the following year, with the enactment of Civil Rights Law §§ 50 and 51 (L. 1903, ch. 132, §§ 1, 2).

We have in the past recognized that, in this State, there is no common-law right of privacy and the only available remedy is that created by Civil Rights Law §§ 50 and 51 (Stephano v. News Group Pub., 64 N.Y.2d 174, 485 N.Y.S.2d 220, 474 N.E.2d 580; Cohen v. Herbal Concepts, 63 N.Y.2d 379, 482 N.Y.S.2d 457, 472 N.E.2d 307; Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 434 N.E.2d 1319; Flores v. Mosler Safe Co., 7 N.Y.2d 276, 196 N.Y.S.2d 975, 164 N.E.2d 853). In these cases, we took cognizance of the limited scope of the statute as granting protection only to the extent of affording a remedy for commercial exploitation of an individual's name, portrait or picture, without written consent.

Thus, the central issue in any case involving an alleged appropriation of plaintiff's name, portrait or picture is whether the use by defendant was primarily for trade or advertising purposes within the meaning of the statute. While the statute does not furnish any definition of trade or advertising purposes, it has been held that the protection afforded by this statute to individuals does not apply to the publication of newsworthy matters or events. The "newsworthiness exception" has long been recognized in this State (Binns v. Vitagraph Co., 210 N.Y. 51, 52, 103 N.E. 1108; Gautier v. Pro-Football, Inc., 304 N.Y. 354, 359, 107 N.E.2d 485; Booth v. Curtis Pub. Co., 15 A.D.2d 343, 345, 223 N.Y.S.2d 737, affd. 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812; Pagan v. New York Herald...