Privilege Doesn’t Shield Post as to ‘Bag Men’ Story

(CN) - The New York Post must face libel claims from the pair it labeled as "Bag Men" in the aftermath of the Boston Marathon bombings, a judge ruled.

After three people died and more than 260 were injured when two bombs exploded near the finish line of the Boston Marathon on April 15, 2013, media outlets reported on the suspicion that the devices had been transported in backpacks or duffel bags.

Law enforcement asked the public for photos and videos, which began to circulate via social media and soon led to the hunt for suspects Tamerlan and Dzokhar Tsarnaev.

Salaheddin Barhoum and Yassine Zaimi, then 16 and 24, respectively, went to the police two days after the bombing when photos depicting them at the marathon cropped up.

On the day of the marathon, Barhoum and Zaimi had watched the runners cross the finish line. Each carried his own running gear, one in a duffel bag and one in a backpack. They left the area more than two hours before the bombings.

The morning after police cleared the pair of wrongdoing, the New York Post ran a photo of them along with the headline "BAG MEN" in nine-inch letters. The subheadline read: "Feds seek this duo pictured at the Boston Marathon."

Zaimi said he saw the Post cover when he arrived at work and immediately began shaking. Barhoum arrived home from a track meet to find reporters interviewing his parents. He said reporters showed him the Post coverage and that he began to shake and sweat.

They sued the newspaper two months later in Suffolk County Superior Court for defamation, invasion of privacy and infliction of emotional distress.

The Post sought dismissal by claiming that the article was a privileged reporting of the news that did not contain false, defamatory information.

Justice Judith Fabricant disagreed last week in a ruling posted online by the Washington Post.

"A reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify the plaintiffs, but also to find them, and as implying that the plaintiffs were the bombers, or at least that investigators so suspected," she wrote.

While Barhoum and Zaimi will proceed with their claims of defamation and infliction of emotional distress, the court dismissed their claims for invasion of privacy.

"The facts alleged here involve no publicizing of private conduct; the photographs show the plaintiffs attending a public event in a public place," Fabricant wrote.

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