Gill v. Hearst Publishing Co.
40 Cal. 2d 224, 253 P.2d 441, 1953 Cal. LEXIS 188 (1953)
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Rule of Law:
The publication of a photograph of a person in a pose voluntarily assumed in a public place does not, by itself, constitute an actionable invasion of the right of privacy. By exposing oneself to public view, an individual waives the right to privacy as to that particular scene.
Facts:
- John and Maude Gill, a husband and wife, owned and operated a confectionery and ice cream concession in the Farmers' Market in Los Angeles, a public place.
- While seated together at their concession, an employee of Hearst Publishing Company took a photograph of them in an affectionate pose.
- The Gills voluntarily assumed this pose, which showed John Gill with his arm around his wife, in full view of any persons at or near their place of business.
- Hearst Publishing Company originally published the photograph in the October 1947 issue of Harper's Bazaar magazine.
- Hearst Publishing later gave its consent and permission for the same photograph to be republished in the May 1949 issue of the Ladies' Home Journal.
Procedural Posture:
- The Gills sued Hearst Publishing Co. in a California trial court for invasion of privacy based on a 1947 magazine publication.
- The trial court sustained Hearst's demurrer (motion to dismiss), ruling the claim was barred by the statute of limitations, but granted the Gills leave to amend their complaint.
- The Gills filed an amended complaint, alleging Hearst invaded their privacy by consenting to the photograph's republication in a different magazine in 1949.
- Hearst again filed a demurrer to the amended complaint, arguing it failed to state a valid legal claim.
- The trial court sustained the demurrer without giving the Gills an opportunity to amend it further, and a final judgment was entered for Hearst.
- The Gills, as appellants, appealed the judgment to the Supreme Court of California.
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Issue:
Does the publication of a photograph depicting a couple in an affectionate pose, voluntarily assumed in a public place, constitute an actionable invasion of their right to privacy when the photograph itself is not indecent or offensive?
Opinions:
Majority - Spence, J.
No. The publication of a photograph depicting a couple in a voluntary public pose does not constitute an actionable invasion of privacy. The right to privacy is not absolute and must be balanced against the constitutional guarantees of freedom of the press. When individuals voluntarily expose themselves to the public gaze, they waive their right of privacy as to that specific public act, which effectively becomes part of the public domain. Liability for invasion of privacy arises only if the defendant's conduct would be offensive to a person of ordinary sensibilities, and the photograph here, portraying a common sentimental moment, does not cross that threshold. The court distinguished this from cases involving shocking or indecent portrayals or photos taken in private settings. However, the court also found that the plaintiffs should have been allowed to amend their complaint to clarify whether the defendants also consented to the publication of the accompanying magazine article, which could potentially create a cause of action.
Concurring - Carter, J.
While concurring with the judgment to allow the plaintiffs to amend their complaint regarding the article issue, Justice Carter disagreed with the majority's reasoning on the substantive privacy issue. Carter argued that the publication of the photograph alone should be considered a violation of the plaintiffs' right of privacy. The idea that assuming a pose in view of a few members of the public constitutes consent to have that image published to millions is a fallacy. The photograph has no news or educational value that would justify the intrusion. Furthermore, whether the photograph would offend the sensibilities of an ordinary person is a question of fact that should be decided by a jury, not by judges as a matter of law. Despite this disagreement on the privacy analysis, Carter concurred in the result that the case should be remanded for amendment of the complaint.
Analysis:
This case significantly limits the scope of the right of privacy tort by establishing a strong 'public place' exception. The court's 'waiver' theory holds that acts voluntarily performed in public lose their private character, making their documentation and dissemination generally non-actionable. This decision provides substantial protection to the media for publishing images of everyday life, distinguishing between private facts and public conduct. It sets a precedent that photojournalism depicting ordinary, non-offensive public scenes is not an invasion of privacy, thereby shaping the balance between personal privacy and freedom of the press.
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