Lohan doesn't want Gawkers to see her wardrobe malfunction -- Chilling Effects Clearinghouse

Chilling Effects Clearinghouse > Notices > Lohan doesn't want Gawkers to see her wardrobe malfunction (NoticeID 3386, http://chillingeffects.org/N/3386)

Lohan doesn't want Gawkers to see her wardrobe malfunction

March 01, 2006

Sender Information:
Lindsay Lohan
Sent by: [Private]
Lavely & Singer
Los Angeles, CA, 90067-290, US

Recipient Information:
[Private]
Gawker Media
USA

Sent via: email
Re: Lindsay Lohan/Gawker Media

Confidential Legal Notice

Not for Publication

Re: Lindsay Lohan/Gawker Media

Gentlepersons:

We are writing as litigation counsel to Lindsay Lohan. We demand the immediate removal of the partially nude photograph of Ms. Lohan (the "Photo") which is posted on the website www.defamer.com (the "Website") and on any other websites which are owned or operated by Gawker Media, as well as the removal of the link called "Lindsay Lohan is a Flasher" which links readers from the Defamer Website to the website www.wwtdd.com which has also posted the same Photo of Ms. Lohan.

The publication and display of the Photo (even if partially covered as initially appears on the Website or if you click on the image and then see an unobstructed view of her right breast) constitutes a willful and malicious invasion and violation of Ms. Lohan's right of privacy, through the tort of publication of private facts and as such, exposes Gawker Media and all those acting in concert with it to liability and substantial compensatory and punitive damages. In fact, the small image which was superimposed on top of the nipple to allegedly "cover" part of her breast is in reality a target which immediately draws the attention of the viewer to the image, along with your lewd and offensive invitation to viewers that they "click on the picture" to "totally see some nipple." Just because a wardrobe malfunction occurred and Ms. Lohan's right breast was inadvertently and very briefly revealed and someone was able to photograph her in this intrusive manner without her consent or knowledge, does not justify or legitimize publication or display of the Photo or justify this violation of Ms. Lohan's right of privacy at a most basic level.

Pursuant to well established case law, the publication of the Photo on your Website constitutes a publication of private facts in violation of Ms. Lohan's right of privacy, namely by the public disclosure of a private fact which would be offensive and objectionable to a reasonable person and which is not of legitimate public concern. See, e.g., Husky v. National Broadcasting Company, 632 F.Supp. 1282, 1287-88 (N.D. Ill 1986) [Court held that filming by an NBC crew of a prisoner in an exercise cage that was visible to others violated his right of privacy and would even warrant an injunction; Court stated that "[P]laintiff's visibility to some people does not strip him of the right to remain secluded from others"]; Wood v. Hustler Magazine, 736 F.2d 1084, 1089 (5th Cir. 1984) [Court held that a person's nude appearance is a "highly private fact," "the publication of which, absent her consent, would be highly offensive to a reasonable person and was not of legitimate public concern"]. See also, Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 74 Cal.Rptr.2d 843, 955 P.2d 469. As the Court noted in Shulman, this claim is well established both under common law and under Article I, Section 1 of the California Constitution. Clearly, the Photo is not "newsworthy" and a matter of legitimate public concern such as to justify publication of it and destroy Ms. Lohan's right of privacy and her right to prevent unauthorized commercial exploitation of her name and likeness.

As stated by the California Supreme Court in Shulman:

"Private facts are not newsworthy 'when the community has no interest in them beyond the voyeuristic thrill of penetrating the wall of privacy that surrounds a stranger.'" supra at 857.

Moreover,"[a]ll material that might attract readers or viewers is not, simply by virtue of its attractiveness, of legitimate public concern," but there must be "social value" regarding the disclosure. Shulman at 857. There certainly is no "social value" resulting from the publication or disclosure of the Photo or of your blatant attempts to garner attention and viewership to your Website by touting "LINDSAY LOHAN'S AUTO NIPPLE SLIP".

Moreover, Ms. Lohan's right to protect her privacy extends to public places, such as for example, the General Motors celebrity fashion show where the Photo was apparently taken. See, for example, Daily Times Democrat v. Graham, 276 Ala. 380, 162 So.2d 474 (1964)[Court upheld violation of right of privacy of woman whose Photograph was taken as her skirt was blown up by a device blowing jets of air at a "Fun House" ride at a Fair, effectively exposing her body from the waist down, finding that the Photograph was "embarrassing to one of normal sensibilities"]. As the Court in Daily Times Democrat stated:

"One who is a part of a public scene may be lawfully photographed as an incidental part of that scene in his ordinary status. Where the status he expects to occupy is changed without his volition to a status embarrassing to an ordinary person of reasonable sensitivity, then he should not be deemed to have forfeited his right to be protected from an indecent and vulgar intrusion of his right of privacy merely because misfortune overtakes him in a public place [citations omitted]." Daily Times Democrat v. Graham, supra, at 478.

See also, Sharrif and Martyn v. American Broadcasting Company, 613 So.2d 768 [Court held that whether airing of a video showing collapse of stage upon which professional musicians were performing on "Funniest Home Video" television show violated musicians' right of privacy by, among other things, constituting an "unreasonable public disclosure of embarrassing public facts" was a question for the trier of fact].

In fact, even the disclosure or description of what is contained in the Photo constitutes a willful violation of Ms. Lohan's privacy rights. In short, there is ample legal authority both for a claim for substantial damages and for injunctive relief against anyone who publishes, posts, disseminates or otherwise exploits the Photo of Ms. Lohan, as you have done. There were plenty of other photos of Ms. Lohan at the event, the publication of which would not invade her privacy.

In view of the foregoing, demand is hereby made as follows:

1. That the Photo (even if partially redacted or covered) be immediately removed from the Website and from any other websites operated by Gawker Media;

2. That the link to the www.wwtdd.com website also be removed without delay; and

3. That you provide to us the name and contact information, including e-mail, for the individual or company which provided you with the Photo.

Please confirm within 48 hours that you will comply with the above stated demands.

You would be well advised to remove the Photo and all references to the Photo immediately in order to lessen and mitigate the damages which you are causing to my client, and for which you will be legally liable and accountable.

Govern yourselves accordingly.

This does not constitute a complete or exhaustive statement of all of my client's rights, claims, contentions or legal theories. Nothing stated herein is intended as nor should it be deemed to constitute a waiver or relinquishment of any of my client's rights or remedies, whether legal or equitable, all of which are hereby expressly reserved.

This letter is a confidential legal communication and is not for publication.

Sincerely,

/S/

[private]

LAVELY & SINGER
PROFESSIONAL CORPORATION
[private]

cc: Ms. [private] (via facsimile)
Ms.[private] (via facsimile)
[private] (via facsimile)
Ms. [private](via facsimile)
[private], Esq. (via facsimile)
[private] (via facsimile)

FAQ: Questions and Answers

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Question: What is a hyperlink?
Answer: Unless you typed the URL directly into your web browser, you probably followed a hyperlink to get to this page. A hyperlink is a location reference that the web browser interprets, often by underlining the text in blue, to "link" to another information resource when clicked. In HTML (HyperText Markup Language, the code used to write web pages), a hyperlink looks like this: link

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Question: If a hyperlink is just a location pointer, how can it be illegal?
Answer: It probably isn't, however, a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material:

In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its "function," even if the link was also speech.
In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work's copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.)
By contrast, the court in Ticketmaster v. Tickets.com found that links were not infringements of copyright.
Like anything else on a website, a hyperlink could also be problematic if it misrepresents something about the website. For example, if the link and surrounding text falsely stated that a website is affiliated with another site or sponsored by the linked company, it might be false advertising or defamation.

Finally, post-Grokster, a hyperlink might be argued to induce copyright infringement, if the link were made knowing that the linked-to material was infringing and with the intent of inducing people to follow the link and infringe copyright.

In most cases, however, simple linking is unlikely to violate the law.

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Question: Can search engines be liable for copyright infringement by providing hyperlinks to search results?
Answer: Some Internet search engines have been getting "takedown" requests under the Digital Millennium Copyright Act, Section 512 (see DMCA Safe Harbor for more information). The DMCA provides a safe harbor to information location tools that comply with takedown notices, but it is not settled whether they would be liable for copyright infringement if they did not use the safe harbor. Arguably, computer-generated pages of links do not materially facilitate infringing activity or put their hosts on notice of copyright infringements.

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Question: What are the privacy torts?
Answer: Much privacy law is state law, and may differ from state to state. As general categories, states may recognize interests in:
unreasonable intrusion upon the seclusion of another;
appropriation of the other's name or likeness;
unreasonable publicity given to the other's private life; and
publicity that unreasonably places the other in a false light before the public.
(from the Second Restatement of Torts, ? 652A)

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Question: Can I be sued for publishing somebody else's private facts?
Answer: Some jurisdictions allow lawsuits for the publication of private facts. In California, for example, the elements are (1) public disclosure; (2) of a private fact; (3) that is offensive to a reasonable person; and (4) which is not a legitimate matter of public concern. Publication on a blog would generally be considered public disclosure. However, if a private fact is deemed "newsworthy," it may be legal to print it even if it might be considered "offensive to a reasonable person."

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Question: What are private facts?
Answer: Private facts are personal details about someone that have not been disclosed to the public. A person's sexual orientation, a sex-change operation, and a private romantic encounter could all be private facts. Once publicly disclosed by that person, however, they move into the public domain.

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Question: What is offensive to a reasonable person?
Answer: To state a claim, the plaintiff must show that the matter made public was one that would be offensive and objectionable to a reasonable person of ordinary sensibilities. For example, disclosing that the plaintiff returned $240,000 he found on the street was held not to be offensive, but the publication of an "upskirt" photo would likely be found to be offensive to a reasonable person.

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Question: How do I know if a private fact is "newsworthy"?
Answer: A private fact is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment. However, a court may look at whether the private fact is pertinent to an otherwise newsworthy story.

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Question: What does the "reservation of rights" language mean? What are they "waiving" at me?
Answer: Many C&Ds will say something like, "This letter shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved." This is just legalese for saying, "Even if you do what we ask in this letter, we can still sue you later." The language is standard; do not be alarmed. Litigation is extremely unpleasant, and unless your opponent is irrational (always a distinct possibility, of course), it will not bring litigation after it has obtained what it wants.

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Question: Is a cease-and-desist letter confidential?
Answer: There is ordinarily no expectation of privacy or confidentiality in a letter sent to an adversary. Unless you have made a specific promise of confidentiality beforehand, such as in a protective agreement or NDA, a letter demanding confidentiality doesn't bind you.

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