Pryor Cashman has prevailed on a motion to dismiss claims for defamation, invasion of privacy and infliction of emotional distress asserted against the free daily newspaper Metro NY. The paper is owned by Metro International, S.A., the publisher of “Metro” newspapers in 200 major cities in Europe, North America, South America and Asia. 

The claims arose out of Metro’s publication of the photograph of an innocent-looking, nine-year old African American boy accompanying an article addressing a perceived increase in gang activity in New York City. The article described recent incidents in which a 15-year-old girl and a 92-year-old woman had been struck by stray gunfire and discussed the dangers posed to young people by gun violence and gang recruitment and intimidation. The photograph depicted the young boy looking over a yellow police line at the scene of a crime.  

The boy and his parents claimed that the publication defamed him by implying that he was involved in gang activities, that his privacy had been invaded because the photograph had been published without consent, and that the incident had caused him emotional distress.

In moving to dismiss the claims, Pryor Cashman argued on Metro’s behalf in Supreme Court in Brooklyn that no reasonable reader of the publication would draw the conclusion that the young boy in the photograph was himself a gang member. Rather, the boy obviously was being depicted as an example of a young person who might be the next victim of gang violence or recruitment tactics. The Court agreed and dismissed the defamation claim because the plaintiff “was not named in the publication as being involved in criminal activity and his image had a journalistic connection to the theme of the article, i.e., a youth affected by gang violence.” 

The Court also agreed that the plaintiff’s invasion of privacy claim must be dismissed. The Court held that while New York law prohibits the commercial exploitation of a person’s image without permission, free speech considerations dictate that the media may nonetheless publish a person’s image, without their consent, if the image bears a reasonable relationship to an article disusing a topic of public interest. The article at issue, which discussed concerns over increasing gang activity and the dangers it poses to young people, clearly involved a matter of public concern, and an image of an inner-city youth observing a crime scene is reasonably related to that theme regardless of whether the person depicted actually has any personal connection with gang activity.

To read the decision in its entirety, please click here.