Is posting the wrong photo of a criminal suspect actionable defamation?
<p>Sometimes police or others will post an incorrect photo (or name) of a person and mistakenly identify them as a criminal suspect. For example, ATM video cameras do not sync transactions with the video, so <a href="https://www.nj.com/news/2019/03/thou-shall-not-bear-false-witness-nj-pastor-claims-mistake-by-wells-fargo-on-atm-photos-led-to-wrongful-arrest.html" rel="noreferrer">it is easy for banks to get the wrong person's image when they review video from an ATM that was used for a criminal purpose</a>.</p>

<p>So, in the case linked above the bank sent the photo of an innocent person to the police and told them that the person had deposited fraudulent checks. The police then posted the photo to Facebook and identified the person as wanted in a criminal investigation. Obviously this is damaging to a person's reputation, but is it actionable? Does the innocent person have a defamation case against the bank and/or the police?</p>

<p>If the case were brought to a court alleging the facts as presented in the article, the case should be promptly dismissed.</p>

<p>Inaki Viggers' answer correctly notes that the bank's statements enjoy a qualified privilege against a lawsuit, and that the plaintiff would need to prove actual malice to overcome that privilege.</p>

<p>But his answer goes off the rails in applying the actual-malice standard, which requires that the defendant actually believed he was probably not telling the truth. <a href="https://supreme.justia.com/cases/federal/us/491/657/" rel="nofollow noreferrer"><em>Harte-Hanks Communs. v. Connaughton</em>, 491 U.S. 657 (1989)</a> ("The defendant must have made the false publication with a 'high degree of awareness of . . . probable falsity.'") </p>

<p>Whatever they might have done differently, there's nothing in the story that indicates anyone at the bank thought they had identified the wrong person.</p>

<p>Without a subjective belief that their statements were probably false, there is no actual malice. Without actual malice, there is no overcoming the qualified privilege. Without overcoming the privilege, there is no liability for defamation. </p>

defamation