In fact, the lawyer for the Navy Seals was just interviewed by John Gibson filling in for O’Reilly. A lawyer supporting the position of the AP (though he claimed that he doesn’t represent the AP) balanced out the segment.
Apparently the suit is based on invasion of privacy. According to the lawyer for the Seals, the wife of one of them posted the photos in question on a private website which she believed required a password for access. The suit also focuses on the fact that not only were the photos improperly published, the faces of the Seals are clearly seen in the photos—posing danger to the Seals who are still over there fighting and their families over here in the U.S.. I’m not sure what kind of cause of action exists based on the AP’s failure to obscure the faces unless there was a sustainable case for invasion of privacy. Perhaps some kind of negligent publication theory based on the the fact that the AP has exposed the Seals to danger by the publication? I would think that there would have to be a physical injury to sustain such a theory, so I don’t understand where the lawyer is going with that.
On the privacy issue, though privacy laws vary from state to state, a general discussion of the law can be found in the Restatement of Torts 2:
652A. General Principle
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by:
(a) unreasonable intrusion upon the seclusion of another, as stated in 652B; or
(b) appropriation of the other’s name or likeness, as stated in 652C; or
(c) unreasonable publicity given to the other’s private life, as stated in 652D; or
(d) publicity that unreasonably places the other in a false light before the public,as stated in 652E.
An interesting question is whether there existed “reasonable expectation of privacy” regarding the photos. The wife thought that the website was restricted—it may not have been restricted since the reporter got into it (I don’t know how). If the wife reasonably believed that it was restricted—is that enough to establish “a reasonable expectation of privacy”? I’d like to know upon what facts she based her conclusion that the site was restricted. I would also like to know what efforts she made to ensure that the site was restricted.
Further, the reporter tracked down the wife and she, according to the Seal’s lawyer, informed him that the photos were taken from a site she believed was restricted—thus the reporter was put on notice that the publishing (via the personal website) of the photos to those outside the family and friends possessing the password was inadvertant. The reporter chose to publish it anyway. (Correction: I watched the segment again during the repeat. The reporter didn’t speak to the wife. He left her a note acknowledging that the site from which he obtained the photos was her private site. Thus, there is evidence that he knew that there was no intent on the wife’s part to publish the photos to the general public. Hmmm, did he hack the site?)
Even if the publication of the photos by the AP was not a tortious act, under the circumstances, it certainly seems like a breach of the Code of Ethics of the Society of Professional Journalists which states:
Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.
What is the overriding public need here? The AP will say the “fact” that abuse was ocurring. That “fact” is debatable as discussed below. And, in reaching that conclusion, I believe that the AP ran roughshod over several other sections of the Code of Ethics. (see below)
The lawyer for the Seals also said that when the AP went to the military to inform them that the photos were going to be published, the AP was informed of the dangers posed to the Seals if their faces were revealed. The Seals are, after all, still engaged in covert actions. The AP ignored this and published them anyway—and now the Seal’s faces have been pasted all over the Arab world via Al Jazeera.
Again, from the Code of Ethics:
Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
Seems to me that the AP has been pretty frick’en arrogant given that they showed total disregard for the safety of these men.
Getting back to the O’Reilly Factor, the punk lawyer supporting the AP justified the publishing of the photos on the basis that the public is entitled to the “truth” and covering up the “truth” is
never harmful. (I don’t think that he’s read the Journalistic Code of Ethics—do you?) Of course, the “truth” as “determined by the AP editorial board” (paraphrasing punk lawyer) is that these photos were evidence of “wrongdoing” necessitating publishing them. Here’s another tidbit from the Code of Ethics:
Be judicious about naming criminal suspects before the formal filing of charges.
The AP editorial board seems to have no concept of the meaning of “judicious”. Either that, or the members believe that they are legitimate arbiters of guilt or innocence, and, of course—our guys are always presumed to be guilty. It seems that they forgot that their own Code of Ethics says:
Test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible.
I guess the AP skipped that part because the Seals take issue with the AP’s representations that the photos showed that the prisoners were being abused. I don’t remember the AP or MSM discussing that part. The lawyer for the Seals says that the Seals are fully prepared to testify that there was no abuse. This may be the strongest part of their case. I refer back to the Restatement of Torts section posted above:
(d) publicity that unreasonably places the other in a false light before the public,as stated in 652E.
Here’s the section from the Restatement defining what that means:
652E. Publicity Placing Person in False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
As I was writing this, Froggy posted on the Factor interview too:
After watching O’Reilly Factor with John Gibson just now, I have a sinking feeling that when I watch 60 Minutes II tonite there will be some more collusion evident between CBSNEWS and other leftist MSM outlets. The attorney advocating for the AP on ORF made the case that no privacy rights had been infringed upon by AP by its methods of obtaining the SEAL’s photographs. Which is what you would expect. The question he didn’t want to answer was, “What news interest was served by showing the photographs unredacted?”
Froggy goes on to say:
In the US “cover ups” are never met with much support, and I don’t begrudge the AP from filing stories that it thinks are newsworthy. But when you take the time to obscure the faces of the terrorists that the SEALs apprehended, what possible reason is there to not afford the SEALs the same courtesy? I can find no other explanation than a malicious intent by the AP to “send a message” to the Teams that the editors do not support the Iraq War in an effort to intimidate the families of the SEALs themselves. How would you feel if your husband was half a world away fighting terrorists, and all of a sudden his mug was on Al Jazeera 24-7 with the tagline “Imperialist terrorist aggressor” scrolling beneath? You’d feel like it was time to move, and furthermore to implore your husband that his dangerous work was putting his children in jeopardy. Re-enlistment bonuses and special pays don’t make up for that kind of pressure to get out, move and become a cop in your hometown. I am incredulous at the thought that this never occurred to the AP editors who decided to publish these photo worldwide.
I hope that the lawyer for the Seals comes up with an effective theory against the AP. If he does, maybe it will set loose a swarm of plaintiff’s personal injury trial lawyers on the MSM. That would be entertaining.






