33

Imagine the following hypothetical situation. Assume the location is in the United States.

Mary had a credit card stolen by a suspect. The suspect used the credit card at a store. The manager of the store, Adam, saved video surveillance of the suspect making a high-dollar purchase using Mary's credit card. Adam also saved photos of the suspect entering the suspect's vehicle and driving away. Adam shared the photos with Mary.

The police department assigned a detective to the case. After many unsuccessful attempts to talk with the detective, Mary has decided to stop calling the detective herself. Mary doesn't anticipate that the police will obtain the surveillance, pursue the case, or identify the suspect.

What are Mary's rights in this situation?

If Adam, as the store manager, were to allow Mary to hang a poster outside of his store, would Mary have the right to hang a poster with photos of the suspect? The paper poster would have the photos of the suspect, the police department phone number, and ask if anyone has seen the suspect.

Can only the police make that kind of a poster? What are Mary's rights here? What legal doctrines are applicable, such as free speech, etc.?

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    I do not think this should be closed, because it asks what a person's legal rights and risks are in a particular hypothetical situation, and so is on-topic. If closed i will vote to re-open. Dec 6 '20 at 23:51
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    Why would Mary want to make such a poster? If the police don't plan to pursue the case, what value would there be in having people with information about the case call the police?
    – phoog
    Dec 6 '20 at 23:58
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    @phoog I would suppose that Mary hopes that if there is a report, it will induce the police to follow up.. indeed even the act of posting the flyers might induce the police to change their views, or she might hope so, Also, if the thief is identified with evidence, Mary might be able to file a civil suit against the thief. Dec 7 '20 at 0:02
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    @DsvidSiegel couldn't Mary investigate on her own (or hire a private investigator) to develop evidence for a civil suit? (And, in practice, Mary will have no damages from the credit card fraud because the card issuer will absorb the loss, so she won't have much of a basis for a civil suit one way or the other unless there was some other theft or other tort.)
    – phoog
    Dec 7 '20 at 0:11
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    @phoog That might be a better choice, but it would involve more up-front cost and effort by Mary. And I have known friends who were significantly impacted by credit card theft and identity theft, and not all damages were absorbed by the issuer(s). Still I didn't say such a move would be wise, merely that Mary might have a somewhat rational purpose, and had the right to take such action if she so choose. Dec 7 '20 at 0:36
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There is no law against a person creating and distributing such a poster, to the best of my knowledge. However such a poster pretty clearly implies that the person shown is guilty of a crime, or at least strongly suspected. If the store somehow made an error, pulling the image of a person who did not use the stolen card or there is some other error, the person pictured might well suffer a significant loss of reputation, and might sue for defamation. Damages could possibly be significant. Such suits have, I believe, happened when surveillance photos were posted but there later proved to have been an error. Mary might wish to double check how sure the store is that the photos are of the person who actually used the stolen card.

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    The fix to that is to say the person in the picture is to say that police would like to talk with this person in connection with a crime OR say that the person is a "Person of Interest" in a crime. That way, if and when the police talk to this person, they can use thier training to make the determination that the person is a suspect or not.
    – hszmv
    Dec 7 '20 at 13:15
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    @UuDdLrLrSs: Not necessarily. It's generally not defamation to make a good faith accusation against someone you suspect of comitting a crime UNLESS you absolutely know the person was innocent and still accused him (i.e. Alice accusing Bob of killing Charlie when in fact Dave did it is not defimation. Alice accusing Bob of killing Charlie when she knows Charlie is alive and well, having retired to a tropical paradise with little contact to the outside world is defamtion.). That said, fake criminal accusations are per se defimation, meaing the plaintif does not need to prove malice intent.
    – hszmv
    Dec 7 '20 at 15:18
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    Unless you are acting in reckless disregard of the truth on a matter of public concern such as a criminal at large, you are immune to liability for defamation under the New York Times standard and related cases. The risk of defamation liability is basically zero.
    – ohwilleke
    Dec 7 '20 at 16:23
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    New York Times v. Sullivan doesn't only apply to public officials. It also applies to matters of public concern.
    – ohwilleke
    Dec 7 '20 at 17:14
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    To provisionally answer my question: commons.wikimedia.org/wiki/… seems to indicate that the publishing rules in the U.S. indeed are more relaxed than in many other countries. Additionally, U.S. privacy law is a state matter and thus differs from state to state. Dec 8 '20 at 11:22
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This is entirely legal and commonly done.

The risk of defamation liability to the suspect is minimal. Under New York Times v. Sullivan 376 U.S. 254 (1964) and related cases, to prevail in defamation case with a media defendant, a public figure plaintiff, or a matter of public concern, the plaintiff must show "actual malice."

In Rosenbloom v. Metromedia Inc., 403 U.S. 29 (1971), the U.S. Supreme Court extended the “actual malice” standard to statements about matters of public concern—even where the plaintiff is a private figure. According to the Court, "if a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety."

The most recent development to the matters of public concern doctrine came when the Supreme Court decided Snyder v. Phelps, 131 S.Ct. 1207 (2011). At issue was whether statements made by members of the Westboro Baptist Church at the funeral of Marine Matthew Snyder related to matters of public concern and thus were protected by the First Amendment. To determine whether a statement relates to a matter of public concern, the Court created a two-part test. A statement related to a matter of public concern if: (1) the statement related “to any matter of political, social, or other concern to the community,” or (2) the statement related to “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”

Since the heightened matters of public concern test applies means that a false statement of fact is not enough to prevail. One must show that a statement was made knowing it was false or with reckless disregard to the truth or falsity of the statement. The proposed poster, based upon CCTV video and other factual circumstances strongly pointing towards the person depicted having committed a crime overcome this standard.

Other factors also help Mary.

  • She is clearly identifying the factual basis for her belief (the CCTV picture with a location and time) and is not attempting to put a name to the face. If the publication contains an opinion based on disclosed facts, and if the court finds that the supporting factual statements are libelous or slanderous per se, it is those factual statements, and not the opinion, that should be submitted to the jury. NBC Subsid. (KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994); RESTATEMENT (SECOND) OF TORTS § 566 cmt. c (1977).

  • She is relying on Adam for her factual assertion in circumstances where she has no reason to believe that Adam has a reason to be untruthful.

  • She is asking the public to assist police by contacting them, not definitively saying that a person who looks similar to the poster is guilty of a crime, or urging unofficial retaliation. Specifically:

The paper poster would have the photos of the suspect, the police department phone number, and ask if anyone has seen the suspect.

End Note: Case Law on Public Concern (from the annotations to Colorado Jury Instruction 22.1):

Whether or not a matter is one of public concern is a question of law for the Court and not a question of fact for the jury. See, e,g., Lewis v. McGraw-Hill Broad. Co., 832 P.2d 1118 (Colo. App. 1992).

As to the criterion, “public interest or general concern,” see Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983) (although not an issue on appeal, the newscast of a story detailing the life of a bomb squad officer who was seriously injured in an explosion was analyzed as a matter of public concern); Diversified Management, Inc., 653 P.2d at 1108 (because potential buyers were members of the general public, an article reporting widespread and ongoing real estate development schemes of questionable propriety was a matter of public concern); Walker, 188 Colo. at 97, 538 P.2d at 456 (dispute between property owner and antique dealer, when relevant to public interest in failure of legal system to intervene in such disputes, was matter of public concern); Lawson v. Stow, 2014 COA 26, ¶¶ 23-26, 327 P.3d 340 (statements made to public employees charged with investigating child abuse relate to a matter of public concern); Shoen v. Shoen, 2012 COA 207, ¶¶ 25-27, 292 P.3d 1224 (husband’s statements addressing inadequacy of police investigation into his wife’s murder, fourteen years earlier, related to matter of public concern); Smiley’s Too, 935 P.2d at 42 (article about retailer’s business practices that affected many consumers and involved a consumer affairs agency was a matter of public concern); Lewis, 832 P.2d at 1121 (newscast involving public controversy of racially discriminatory policies and implying plaintiff had been previously arrested was matter of public concern); Seible v. Denver Post Corp., 782 P.2d 805 (Colo. App. 1989) (defendants did not dispute on appeal that allegations of attempts to evade handicapped accessibility requirements of city building code involved a matter of public concern); Bowers v. Loveland Publ’g Co., 773 P.2d 595 (Colo. App. 1988) (news items relaying contents of police report is matter of public concern).

On the other hand, the criterion “public interest or general concern” was not met in Zueger, 2014 COA 61, ¶ 28 (business dispute between two private parties discussed on Internet); McIntyre v. Jones, 194 P.3d 519 (Colo. App. 2008) (statement concerning qualifications of applicant for bookkeeper of small homeowners association); and Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. App. 1996) (statements by flight attendant that pilot attempted to rape her were not matters of public concern).

While Williams v. Continental Airlines, Inc. bears some similarities to this case, there are important distinctions. The case there was seeking to identify an unknown person, but was identifying a particular person based upon undisclosed fact drawing from the credibility of the speaker, not reliance on a third party disclosed fact where no particular defendant is identified. And, that case accused someone of a crime rather than asking someone seeing the individual to contact police for further investigation.

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In the U.S. it has long been acceptable for private citizens and organizations to sponsor rewards for information leading to a criminal's apprehension.

Oftentimes, in the American West, the "Wanted" posters that offered rewards were funded by citizens and victims own pockets since law enforcement bodies at the time were very underfunded (no "wanted dead or alive" poster has ever been historically found, as the "Wanted" was implied any way you bring him in... if he dies for some reason you can still collect in some situations... and usually the full amount.).

These days the ask is for information leading to the arrest and conviction of the suspect.

In the modern day, the non-profit Crime Stoppers USA uses cash rewards to incentivize local communities to help identify persons wanted in connection with a crime and may have re-enactments for the news. Other long running and very popular series such as America's Most Wanted (AMW) and Unsolved Mysteries turned these into entertainment, with dramatic re-enactments of the crime... often featuring real life victims, friends, family, and police playing themselves. When running, these shows often had a 1-800 call center that would take tips from viewers and was quite successful and would often feature updates on captures that happened as a direct result of viewer tips.

(It should be pointed out that AMW was exclusively crimes for which the perpetrator was still at large, known or unknown. Unsolved Mysteries, while featuring crime stories where the perpetrator was known or unknown, would delve into other real life mysteries that the police might not be involved in, such as disputed closed cases of suicide where the victim's death was ruled a suicide but the ruling is disputed, searches for long lost family members, searches for Good Samaritan helpers of accident victims, and even paranormal investigations, which naturally were not resolved in the show's life time.)

They were cheap to make, as most of the acting was not Emmy Award winning and were quite popular with audiences, and worked. While both had co-operation of law enforcement, neither was sponsored by any U.S. law enforcement organization (AMW's host, John Walsh was a high-end hotel builder turned anti-crime activist after the abduction and death of his 6-year-old son (although the murderer was believed to be the convicted serial killer Ottis Toole, Toole was never convicted of Adam Walsh's murder) and had no experience with law enforcement prior to his tragic loss.

Unsolved Mysteries' host, Robert Stack, was an actor probably best known for playing Captain Rex Kramer (the one guiding Ted Striker to landing) in Airplane! prior to hosting the show.)

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9

Though not in the USA, something very similar happened in Ireland in 2014. A homeowner was burgled while absent, but his CCTV system caught clear images of the intruders. He supplied this data to the police, who were pleased to have it. However, he also posted the videos on Youtube.

He was subsequently ordered to take them down again because he was violating the rights of the offenders.

https://ipvm.com/reports/ireland-says-its-illegal-to-post-your-footage-from-home-cctv-systems

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    Wouldn't happen in the U.S.
    – ohwilleke
    Dec 7 '20 at 16:21
  • @ohwilleke In the US, it wouldn't just be some video he'd be allowed to shoot.. Dec 7 '20 at 17:19
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    Same thing happened in Czech Republic: mesec.cz/clanky/…. Burglars have more rights than property owners in the EU, unfortunately. Dec 7 '20 at 18:44
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    @JonathanReez Everyone has the same rights, actually. And they include that the guilt or innocence be determined by a court in a formal trial. - If I break into your home and steal something, I might de facto be a burglar, but de jure I'm a suspect, until found guilty. - There are good reasons for drawing this line so clearly. Dec 7 '20 at 21:20
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    @I'mwithMonica Good way to put it. Only courts decide guilt or innocence - the alternative is chaos with lives ruined by false accusations and real criminals whitewashing their image. Dec 8 '20 at 11:07

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