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June 7, 1948

CURTIS PUB. CO. et al.

The opinion of the court was delivered by: HOLTZOFF

This is a action for libel brought by Muriel M. Peay, against the Curtis Publishing Company, the publishers of a magazine known as 'The Saturday Evening Post.' The offending material consists of an article published in The Saturday Evening Post entitled 'Never Give a Passenger a Break.' Its author is joined as a co-defendant. The article is a satire on taxicab drivers in Washington, D.C. It substance is more fully summarized in the opinion of this Court filed herewith in the companion case of Fowler v. Curtis Publishing Co., D.C., 78 F.Supp. 303.

The defendants move to dismiss the complaint for insufficiency. As pointed out in the opinion in the companion case, no action on account of a libel against an entire class may be maintained by an individual member of the group. In other words, a class libel does not give rise to a cause of action for defamation. Either the defamatory publication must be so phrased as to be applicable to every individual member of the group -- and this is not the case here -- or the plaintiff must be sufficiently identified in the article as the persons, to whom the article refers, in order to justify an award of damages.

 The plaintiff alleges that she is an operator of a taxicab and, therefore, is a member of the class to which the publication refers. Her photograph is one of the illustrations forming a part of the article. She claims that by the insertion of her photograph in the offending publication, she is identified as a person against whom the libel is directed and, therefore, is entitled to seek redress.

 While the plaintiff must be identified as the person to whom the derogatory statements relate, the identification may be made in any one of various ways. It is not necessary that the plaintiff's name be mentioned in the text. The publication of a photograph or a portrait of the plaintiff as part of the libelous material may be such an identification.

 In Peck v. Tribune Co., 214 U.S. 185, 29 S. Ct. 554, 53 L. Ed. 960, 16 Ann.Cas. 1075, the Supreme Court held that the insertion of the plaintiff's picture in the libelous publication may justify an inference that the publication was concerning him.

 In the instant case it is for the jury to determine whether the man in the street in reading the story and seeing its illustrations, would be justified in inferring that the text of the article applied to the plaintiff, in the light of the fact that her photograph was one of the illustrations. The Court is of the opinion that there is substantial evidence which would justify the jury in drawing such an inference.

 In view of these considerations, the first count of the complaint, which attempts to set forth a claim for damages for libel, is sufficient.

 The second count of the complaint sets forth a claim based on an alleged violation of the right of privacy.

 The right of privacy has been broadly described as the right to be let alone. Its particular application here involved is the privilege of preventing the unauthorized publication of one's portrait or photograph. Does such a legal right exist? *fn1" This question is open in the District of Columbia, as it has not been authoritatively answered by the United States Court of Appeals, Elmhurst v. Pearson, 80 U.S.App.D.C. 372, 153 F.2d 467. About twenty years ago, however, an eminent member of this Court, Mr. Justice Siddons, in an extremely well considered opinion, recognized and vindicated the right of privacy, Peed v. Washington Times Co., 55 Wash.L.R. 182. While his views are not controlling, they are, nevertheless, exceedingly persuasive.

 This subject first came before a court of last resort for decision in 1902, when the Court of Appeals of New York, by a vote of four to three, rejected the concept of privacy as a legal right and decided that a person whose likeness was used in connection with an advertisement was without redress, Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, 89 Am.St.Rep. 828. The State Legislature, however, promptly filled this gap in the law and provided a remedy, Sec. 50, Civil Rights Law, Consolidated Laws of New York, c. 6. Moreover, the dissenting opinion in the Roberson case has made a greater impress on jurisprudence than the views of the majority.

 In 1904, the Supreme Court of Georgia in Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561, unanimously ruled in an elaborate and exhaustive opinion that the right of privacy was a legal right entitled to judicial protection. The Georgia Court deliberately weighed and considered the Roberson case, supra, and expressed a strong preference for the minority opinion. As the Pavesich case is the leading decision on this point and gave rise to a long line of authorities, it seems appropriate and helpful to quote some significant extracts from this opinion (at pages 194, 201, 202 of 122 Ga., at pages 69 of 50 S.E.):

 'The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of ...

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