The Orange County Register recently disclosed that poolside swimsuit photos of high school water polo athletes—all male, and mostly minors—have been posted without their knowledge on a number of gay porn sites—that is the phrasing used by the Register, although its failure to identify the sites leaves readers to take its word for the report that they contain graphic sexual language and images otherwise. 

The principal reaction to this disclosure is reportedly outrage from the players, their parents, and youth water polo fans generally.  Law enforcement officials are investigating whether a crime has occurred; interestingly, a dispatcher with the UC Irvine campus police department suspected of involvement has been placed on paid leave pending a probe of his role, if any.  A state legislator says the question of First Amendment protection for such activity is being researched by staff of the Assembly Public Safety Committee.  Meanwhile coaches involved are talking about closing team practices and meets to all but students, parents and credentialed sports photographers.

A prediction: Since taking photos of people in public without their knowledge or consent—even minors in swimsuits—is not normally criminal conduct (“upskirt” shots are outlawed by California Penal Code §647(k)(2))—it will be hard to criminalize such photography or the posting of its images, except to the extent the posted images are cropped to focus on the genitalia, which concentration can be an element of prosecutable child pornography. 

But there is a tort cause of action called false light in the public eye that might be used in a civil lawsuit for damages by a person whose photo was posted in a context implying his (or her) knowing and willing appearance in a highly eroticized context—especially when leading to the plaintiff’s personal humiliation, embarrassment and shock.  A case summarized by the Florida State Bar makes the point.

In Braun v. Flynt, 726 F.2d 245 (5th Cir.), cert. denied, 469 U.S. 883 (1984), plaintiff sued Chic, a hard-core men’s pornographic magazine, for false light invasion of privacy. Plaintiff was an amusement park employee who performed a novelty act with Ralph, the Diving Pig. The amusement park sold a postcard depicting Ralph diving toward the plaintiff, who was shown in the pool extending a bottle to the pig. Chic had obtained the consent of the amusement park’s management to use of the photograph by misrepresenting the true nature of the magazine. Plaintiff successfully contended that the ordinary reader automatically would form an unfavorable opinion about the character of a woman whose picture appeared in Chic. Even if, as Chic contended, no reader would assume the plaintiff to be unchaste or promiscuous on the basis of her picture’s publication, the court noted that the jury could have found that the publication of the picture implied the plaintiff’s consent to the publication or her approval of the opinions expressed in Chic. In affirming the liability verdict against the magazine, the court noted that either finding would support the verdict that the publication placed the plaintiff in a false light highly offensive to a reasonable person. Further, the appellate court found the trial court correct in admitting the entire magazine into evidence rather than just the photograph so that the jury could be placed in the position of the ordinary reader in evaluating whether the publication placed the plaintiff in "false light."

In other words, while I have to accept the risk of being photographed wearing (or not) a particular garment in public, I also have the right to object if, without my knowledge and consent, that photo is published in a context that implies something so false and demeaning about my character that I, like most people, would suffer deep humiliation as a consequence.