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FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.
Tiger Woods has disappeared from the golfing scene while there has been a media feeding frenzy. Numerous women have come out of the woodwork claiming sexual relationships with the megastar. And while Tiger has sought respect for his privacy in this delicate time for his family, his attorneys have taken a more aggressive approach in court to protect their client. But can this approach work, especially in the Internet era?
As previously written about in FindLaw's Celebrity Justice blog, Mr. Woods' attorneys apparently have gained an injunction from an English judge that bars the publication of photos of Tiger Woods nude. The sweeping UK injunction reportedly prohibits the dissemination of any photos, video or images of Tiger while naked, any naked parts of his body, or showing him in any sexual activity. The order apparently threatens imprisonment, fines and the potential seizure of assets for violations.
In connection with the UK injunction, Mr. Woods' attorneys reportedly have taken the position that they and their client are not aware of any naked or sexual photos, videos or images of Tiger, they state that Mr. Woods would not have consented to such photos, videos or images and their public distribution, and they express concern for fabricated or manipulated materials.
While not voicing support for the public dissemination of actual or altered images of Tiger Woods nude, it is worth pointing out that the injunction granted in the United Kingdom likely would not have been entered under these circumstances here in the United States. Moreover, its effectiveness is doubtful when any potential photos could be posted on the World Wide Web from many places outside of the jurisdictional scope of the court in England.
Generally speaking, to obtain an injunction prior to trial in the United States, the applicant must show an imminent threat, a likelihood of irreparable harm, and the probability of ultimate success at trial. These standards are not currently satisfied by Tiger Woods based on what little we know about him and his scandal.
First, there is no clear imminent threat. Mr. Woods' attorneys and their client take the position that they are not aware of actual naked or sexual images of their client. Thus, there does not appear to be any immediate contemplated dissemination that needs to be blocked.
Next, for the same reason, they cannot show a likelihood of irreparable harm. If they cannot point to anyone about to release actual or fabricated naked or sexual images of Mr. Woods, they cannot prove that he will be harmed - it is purely speculative. For this reason also, they cannot prove that Tiger likely would prevail at trial.
And as to the harm element, even if his attorneys could show that someone might be about to release offensive images, an argument could be made that with all of the negativity about Mr. Woods in the press currently, and with him already having dropped out of the golf tour and with his advertising sponsors dumping him, the addition of a few images might not cause enough extra harm to be irreparable. Of course, that may depend on the images, which might be of a very different quality than the current public discourse. However, if Mr. Woods consented to the taking of any photos, that might cut against him.
Another problem with the reported order is it scope. To whom does it apply? Does it apply only to people within the UK jurisdiction of the court? And would it only apply to people there who actually have demonstrated some sort of an intent to distribute naked or sexual images of Tiger Woods? Assuming the order is confined by jurisdiction, how can it be truly effective when there are others all around the world outside that jurisdiction who could do what the UK injunction forbids?
In the Internet age, geographic boundaries are becoming less and less relevant. Even if a court order in England bars certain conduct, such as the dissemination of particular images, such images could be posted online from other locations and then could be viewable on the Internet potentially from any computer, even those within England.
To the extent the order truly bars the dissemination of "any naked parts" of Mr. Woods' body, does that even make sense? Would that mean that even those folks within the UK jurisdictional reach of the court could not distribute photos or videos showing those public naked parts of Mr. Woods' body not covered by his clothes, such as his face, neck and arms?
While Mr. Woods is in a mess, and certainly wants to take measures to protect himself, the order his attorneys obtained in the UK likely would not fly here in the US, and it also does not appear effective in the online world.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at firstname.lastname@example.org. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.