The United States District Court for the Middle District of Florida recently dismissed all claims against the coupon database and news website Coupons in the News, reinforcing protections for online publications and associated photographs that are of legitimate public concern.  See Anderson v. Best Buy Stores, Case No: 5:20-cv-41-JSM-PRL (M.D. Fla. July. 28, 2020).

The lawsuit arose over a disagreement about the use of expired coupons at a Best Buy store.  Courtney Anderson allegedly caused a disturbance by pulling down her pants during the argument, ultimately finding herself under arrest for disorderly conduct. Coupons in the News, a website offering coupons, advertisements, and a news service pertaining to couponing, posted an article on its website that detailed Anderson’s alleged actions at the store and included her mug shot. The article labeled Anderson the “Pantless Couponer.”

Anderson brought suit against Coupons in the News on the theories of commercial misappropriation of likeness, invasion of privacy, intentional infliction of emotional distress, and unjust enrichment. Coupons in the News moved for summary judgment to dismiss the claims, going so far as to bring an anti-SLAPP motion claiming the lawsuit was brought “without merit and primarily because [Coupons in the News] had exercised the constitutional right of free speech in connection with a public issue.” Fla. Sta. § 768.295(3).

The court first analyzed Anderson’s central allegation that the Coupons in the News article was a commercial advertisement and not a news publication. Refusing to “abandon common sense simply because [Anderson] alleged otherwise,” the court rejected the allegation as conclusory. Indeed, on its face the article simply recounts Anderson’s arrest. Publications about crimes and arrests are considered newsworthy and fall within the protected scope of legitimate public concern. Cape Publications, Inc. v. Bridges, 423 So.2d, 426, 427 (Fla. App. Ct. 1982). Regarding the newsworthiness of Anderson’s mug shot, the court relied on Florida precedent to confirm that “where one becomes an actor in an occurrence of public interest, it is not an invasion of her right to privacy to publish her photograph with an account of such occurrence.” Id. *427-28.

With this foundation of newsworthiness, the court resoundingly dismissed both the claim for commercial misappropriation of likeness and invasion of privacy. To prove the former under Fla. Sta. § 540.08, Anderson had to prove that her name, story, or photo was used without her consent “for the purposes of trade or for any commercial or advertising purpose.” Anderson argued that publishing the article and using the mug shot were “for the commercial purpose of soliciting subscribers and thereby increasing valuable traffic to couponsinthenews.com.” Notably, the court balked at the potential infringement on the First Amendment guarantees of free press and speech if it were to accept Anderson’s argument. To be sure, under Anderson’s logic, every news article posted to the Coupons in the News website that included a photo could fall under the commercial misappropriation of likeness statute because every news story with a photo would presumedly be seen as motivated to further its business interest.

Furthermore, the court held that neither the embarrassing article, the mug shot, nor the moniker “Pantless Couponer” was sufficient to sustain an intentional infliction of emotional distress claim. The claim requires four elements to be met: (1) a deliberate or reckless infliction of mental suffering, (2) outrageous conduct, (3) the conduct caused the emotional distress, and (4) the distress was severe. Focusing on the second element, the court found that the conduct at issue did not meet the “extremely high standard” required, as it could not be considered “so outrageous in character and so extreme in degree” that it is considered “atrocious … and utterly intolerable in a civilized community.” See Anderson v. Best Buy Stores, case no. 5:20-cv-41-Oc-30PRL (M.D. Fla., May 19, 2020) (citing Metropolitan Life Ins. Co. v. Mccarson, 467 So. 2d, 277, 278-79 (Fla. 1985)).

The dismissal of the claims against Coupons in the News highlights the court’s championing of First Amendment rights of the press, even when the press takes the form of reporting on a “Pantless Couponer.” For both traditional news organizations and even blogs associated with commercial websites, this case will be useful going forward, for its emphasis that “just because the story and the photograph may be embarrassing or distressful to the plaintiff does not mean [they] cannot publish what is otherwise newsworthy.” Cape Publications, Inc., 423 So.2d at *428. Further reassuring future litigants, upon dismissing the four claims, the court also granted Coupons in the News’ anti-SLAPP motion, forcing Anderson to reimburse attorney’s fees and costs incurred to fight the meritless action.

Anderson v. Best Buy Stores reinforces the scope of protections for newsworthy facts that fall under the umbrella of a legitimate public concern and provides solid precedent for the use of photographs associated with news stories.

Special thanks to Steven Goodrich for contributing to this post.