Online Posting of Image of Streisand Estate Upheld by Court

The Superior Court of California upheld the online posting of an image of the California coast line, including a view of the Streisand estate in Malibu, made for the California Coastal Records by Kenneth Adelman, which Streisand sought to have removed. The picture is one of 12,200 shot and posted by Adelman on Layer42.net, the website through which he makes thes images available to individuals interested in pictures of this natural resource.Streisand filed a suit for injunction on three causes of action, (i) intrusion into seclusion, (ii) publication of private facts and (iii) violation of her general right of privacy under the California Constitution. Her suit was countered by an anti-SLAPP action from Adelman, who succeeded in demonstrating that the posting of the images was an exercise of his First Amendment rights in connection with a public issue: the protection of the California coastline.

This moved the burden to Streisand to establish a legally protected privacy interest, a reasonable expectation of privacy and conduct by defendant constituting a serious invasion of her privacy interest. However the Court found Streisand (a) to be an “all purpose public figure” because of her notoriety, as she herself claimed in her suit, (b) to have previously consented to the depiction of photographs of her property in the past by other publications, and (c) that there was no objectively reasonable privacy interest, on account of her not having taken steps to prevent aircraft from peeking into her backyard, which is a common part of daily living and not offensive.

Additionally, the Court found no facts that supported Streisand’s contention that Adelman acted in a manner highly offensive to a reasonable person. Ultimately the winning argument was that the interest of Adelman in the work done for the California Coastal Records countervailed Streisand’s wish to absolute privacy and seclusion, thus justifying the invasion thereof, all the more so given Streisand’s own prior involvement with environmentalist causes.

Another issue in the suit was the addition to the picture of a tag labeling it as the “Streisand Estate, Malibu”. The Court found that since said tag was not accessible by itself through the Internet, but only after the Layer42.net site was accessed, it did not draw additional unwanted attention to the image in dispute.

Furthermore, with regard to a Civil Code claim for the unauthorized use of the name “Streisand”, the Court found the use to be within the public affairs exception of the relevant provision, even more so as the use made of her name was descriptive, rather than commercial. This notwithstanding that larger-size prints of the photography have been sold to the public.