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Fogel v. Forbes, Inc. - 500 F. Supp. 1081 (E.D. Pa. 1980)

Rule:

In the event, however, the substantive law of Pennsylvania as to defamation or invasion of privacy may have been misconstrued in any foregoing analyses, under the undisputed facts presented in this summary judgment motion since the publication of the photograph in this case was for the sole purpose of illustrating a newsworthy article, the defendants would be entitled to summary judgment on constitutional grounds.

Facts:

Dr. Maxwell Fogel and Anna Fogel, his wife, while on a trip to Guatemala, had their picture taken without their consent while standing at an airline counter, next to a quantity of boxes in the Miami International Airport. A researcher for Forbes Magazine arranged to have the picture taken to illustrate an article entitled "Miami: Saved Again." The article and the photograph appeared in the November 1, 1977 issue of Forbes Magazine. The article points out that huge profits are made by the Latin American shoppers when they resell the goods back home at three to four times the price that they paid for them. The photograph of the plaintiffs, which accompanied the article, was captioned, "The Load : Some Latins buy so much in Miami they've been known to rent an extra hotel room just to store their purchases." At least three people other than the plaintiffs appear in the photograph with the many boxes of merchandise. The plaintiffs were not identified either in the photograph or in the article. As a result of the aforesaid publication by Forbes Magazine, plaintiffs claimed that they have been libeled and that their privacy has been invaded. Defendants'  filed a motion to dismiss alleging that the pleadings, depositions and exhibits establish that there is no genuine issue as to any material fact and because defendants are entitled to judgment as a matter of law, summary judgment should be entered in favor of all defendants.

Issue:

Should the court grant the summary judgment to the magazine?

Answer:

Yes

Conclusion:

Summary judgment was granted to the defendants. The Court finds that the picture and the article are not reasonably capable of conveying the meaning or the innuendo ascribed by the plaintiffs. As the Supreme Court of Pennsylvania has said on numerous occasions, if the publication is not in fact libelous, it cannot be made so by innuendo, which puts an unfair and forced construction on the interpretation of the communication. The court also noted that the photograph on which the plaintiffs base their cause of action appeared in a news magazine to illustrate a newsworthy article and the plaintiffs' appearance in the photograph was merely incidental to the showing of the merchandise discussed in the article.

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