Use of Firefighter’s Photo In Sex Scandal Story Prompts Suit

A decorated Philadelphia firefighter is suing the New York Daily News claiming that in January when the paper was covering a major sex scandal in the Philadelphia Fire Department, it wrongly used his photo and name implying he was somehow involved.

Francis Cheney II filed suit against the paper in Pennsylvania Court of Common Pleas on February 11, 2015. The case was removed to US District Court last week by the Daily News.

According to the complaint:

• On January 29, 2015, [New York Daily News] published an article on its website headlined “Heated Sex Scandal Surrounds Philadelphia Fire Department: ‘It’s Bad Stuff’.”
• Below the headline, but above the article, defendant placed a picture of plaintiff, a decorated Philadelphia firefighter, in uniform, and the caption identified plaintiff by name.
• The following day, January 30, 2015, defendant published a second article by the same writer on its website, further alleging that the scandal involves sexual abuse and degradation of a non-consenting city employee, including allegations that the paramedic was “naked and barking like a dog, being paraded around in what appeared to be a Philly fire station on a leash.” The second article does not contain any retraction of the false information imputing plaintiff’s involvement as a participant in the immoral and disgraceful actions.
• Plaintiff had no involvement in the alleged “sex scandal” described in defendant’s publication and, upon information and belief, no allegations or information exists suggesting plaintiff had any involvement in the alleged “sex scandal.”
• Defendant has acknowledged that its placement of plaintiffs photo and name in between the headline and the article suggested that the plaintiff was involved in the “sex scandal.”
• Any reasonable viewer of the defendant’s publication would believe that plaintiff was involved in the “sex scandal” described in the publication.
• Upon information and belief, defendant has not taken any steps to prevent republication of the articles, including republication on the internet.
• Upon information and belief, the defendant has not taken any action to have the defamatory content removed from other websites.
• Defendant’s actions and inactions relating to its publication of false and derogatory materials constitutes intentional, willful, malicious and/or reckless behavior meant to irreparably damage plaintiff’s reputation and standing within the plaintiffs community, and to humiliate plaintiff.
• As described herein, the New York Daily News is knowingly and intentionally wielding its substantial power in an unfair and unconscionable manner to the severe detriment of a private individual with no other means of recourse.

The photo of Cheney that the paper used had been taken in 2006 at a 9-11 memorial.

The suit alleges three counts:

• False Light, Invasion of Privacy
• Defamation/Libel
• Intentional infliction of Severe Emotional Distress

The case appears to be a textbook example of false light invasion of privacy. While defamation requires a false statement (which arguably may not have occurred in this case), false light can be actionable where technically truthful information is used in such a way that its casts another in a false light. The Restatement of Torts definition of false light states:

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.

Cheney claims that after his photo appeared in conjunction with the articles, he had been “flooded with messages concerning the false and defamatory statements, including from colleagues at the Philadelphia Fire Department, family, friends, and strangers.”

Here is a copy of the original state court complaint: Cheney v NY Daily News ORIGINAL

Here is the petition for removal: Cheney v NY Daily News