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Firefighter's sex scandal defamation suit reinstated

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A federal appeals court has reinstated defamation and privacy charges filed by a Philadelphia firefighter whose photo illustrated an article on the Philadelphia Daily News' website about a sex scandal in which he was not involved.

On Jan. 29, 2015, the Philadelphia Daily News published an article on its website entitled, “Heated Sex Scandal Surrounds Philadelphia Fire Department — It's Bad Stuff”, about a sex scandal within the Philadelphia Fire Department, according to Tuesday's ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Francis X. Cheney II v. Daily News L.P.

One of the photos that ran side by side with the article showed Mr. Cheney and was captioned, “Philadelphia firefighter Francis Cheney holds a flag at a 9/11 ceremony in 2006.” While the photo focused on Mr. Cheney's arm patch, his face, although out of focus, is visible, according to the ruling.

Mr. Cheney, however, “had no part in the scandal described the article.” He said after it appeared he was flooded with messages from fire department colleagues, family, friends and strangers.

Mr. Cheney filed suit against the newspaper, claiming defamation, “false light invasion of privacy” and intentional infliction of emotional distress. The U.S. District Court in Philadelphia granted the newspaper's motion dismissing the case, and the 3rd circuit initially upheld that ruling.

But Mr. Cheney field a petition for a rehearing after which the appeals court heard oral arguments in the case and then issued a new opinion.

“Because we hold that a reasonable person could understand that the Daily News article concerned Cheney, the District Court erred in dismissing Cheney's defamation claim on that basis,” said a unanimous three-judge panel.

“The District Court dismissed Cheney's false light invasion of privacy claim on the same erroneous basis for which it dismissed his defamation claim.

“Because we find that a reasonable reader could understand the article to be 'of and concerning' Cheney, we hold that the District Court also erred in dismissing Cheney's false light invasion of privacy claim,” said the ruling.

The panel affirmed dismissal of the emotional distress claim, however, holding that the article did not rise to the level of being “extreme and outrageous.”

Last month a federal appeals court has set aside a $1.35 million award for unjust enrichment to former Minnesota Gov. Jesse Ventura in connection with an anecdote in a former U.S. Navy Seal's book that said he had lost a bar brawl with the Seal, and ordered a new trial on $500,000 awarded on a defamation claim.