California Common Law

  1. Invasion of Privacy – Appropriation (AKA Right to Publicity)

    1. Introduction

      A victim of the online publication of intimate photos or videos may sue the user of the material if s/he can argue that the user is deriving a commercial benefit from the material’s publication.

    2. Elements of the Claim

      Appropriation (“Right to Publicity”):

      (1) defendant’s use of plaintiff’s name, likeness, or identity without plaintiff’s consent;

      (2) commercial or other advantage to defendant; and

      (3) resulting injury to plaintiff.1

    3. Cases

      1. Michaels v. Internet Entertainment Group , 5 F. Supp. 2d 823 (C.D. Cal. 1998).

        • Procedural Posture: Plaintiff filed a motion for a preliminary injunction to enjoin defendant from disseminating a videotape depicting plaintiff having sex with Pamela Anderson Lee.
        • Law: Copyright infringement, false designation of origin under the Lanham Act, state-law invasion of privacy based on publicity of the tape over Westwood One’s radio affiliates, violation of California common law right of publicity and violation of the California statutory right of publicity under Cal. Civ. Code § 3344.
        • Facts: Approximately three years after plaintiff and Lee made a sex tape, defendant (a corporation that distributes adult entertainment material through a subscription service on the internet) sent plaintiff a letter advising him they had acquired the tape and all rights necessary to publish it. Plaintiff’s lawyer advised defendant that plaintiff had not authorized the distribution of the tape and that publication of the tape would violate plaintiff’s copyright therein. The letter included demand that defendant cease and desist from attempts to disseminate or exploit the tape. In 1998, plaintiff registered the tape with the Register of Copyrights. Plaintiff filed an ex parte motion for a temporary restraining order to prohibit defendant from duplicating, publishing, promoting, marketing or advertising the tape, alleging that defendant said it would publish the tape on ClubLove, its internet subscription service. At a deposition, Revilla, the private investigator who gave the tape to defendant, said that the tape had come from one of plaintiff’s associates who had received it as a gift. Revilla negotiated with defendant and made it clear that he was offering “only the physical Tape, not any intellectual property rights in the expression fixed on the Tape.”
        • Outcome:
          • Preliminary injunction granted.
          • Right to publicity: “A right to publicity claim is not preempted…where the claim contains elements that are different in kind from copyright infringement.” The court rejected the contention that the claims for right to publicity were preempted by the Copyright Act because the defendants used the plaintiffs’ names, likenesses and identifies on the radio, and internet to advertise the imminent distribution of the sex tape. Court concluded that the “plaintiffs have demonstrated a likelihood of success on the merits of their claim for violation of the CA common law and statutory right to publicity.”
          • Injunction: “IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
            1. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of the Michaels/Lee videotape (the “Tape”);
            2. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of still photographs from the Tape, captured images from the Tape displayed on the Internet, and/or any downloaded hard copies of images from the Tape;
            3. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of all advertising, promotional material, or packaging referring to the Tape;
            4. Taking orders for copies of the Tape through the Internet or any other means;
            5. Shipping copies of the Tape to those purchasers who already have placed orders for copies of the Tape, or to anyone else; and
            6. Using Michaels's or Lee's name, likeness or identity in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”
      2. Ferguson v. American Apparel, Inc. No. BC460331 (L.A. Super. Ct. filed Apr. 26, 2011).

        • Procedural Posture: Complaint filed in Los Angeles Superior Court on April 26, 2011. On September 9, 2011, defendants’ motion to compel arbitration and stay proceedings was granted. The granting of defendants’ Petition to Compel Arbitration and Stay Proceedings in Lo, et al v. American Apparel, et al , on July 29, 2011 had collateral estoppel effect on Plaintiff Ferguson and Lubans-Dehaven’s claims as they are parties in the Lo lawsuit. The court severed the confidentiality provision in Plaintiff Morales’s Arbitration Agreement and enforced the remainder of the agreements.
        • Law: Invasion of Privacy – Appropriation of Likeness
        • Facts: Shortly after Plaintiffs Ferguson, Lubans-Dehaven and Morales filed separate lawsuits against defendants, blogs purportedly published by the plaintiffs appeared on the internet containing plaintiffs’ nude photos and stating that their sexual harassment lawsuits against defendants were frivolous and part of an extortion scheme.2 Plaintiffs allege that defendants appropriated their likeness for their own advantage as a way to sway public opinion in their favor in regards to the pending lawsuits.3
        • Outcome: Pending.4
    4. Practice Pointers

      A survey of California case law involving the common law tort of appropriation only revealed appropriation claims based on commercial advantage. The case law does not provide a discussion of “other advantages” in terms of appropriation. It is therefore unclear what types of “other advantages” might be considered by a court in an appropriation claim.

    1. Eastwood v. Superior Court, 198 Cal. Rptr. 342, 346 (Cal. Ct. App. 1983); see also Cal. Civ. Code § 3344. 

    2. Compl. ¶ 46.  

    3. Id. at ¶ 69. 

    4. The status of this case was last checked on November 3, 2011 at the Los Angeles County Superior Court’s website. 

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  2. Invasion of Privacy – False Light in the Public Eye

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring a common law action for false light if s/he can argue that the material makes it seem that s/he is something s/he is not (for example: that s/he aspires to be a porn star or that s/he is an exhibitionist).

    2. Elements of the Claim

      False Light:

      (1) A public disclosure;

      (2) which places the plaintiff in a false light; and

      (3) which is objectionable to a reasonable person.1

    3. Cases

      1. Prince v. Out Publ. Inc. , No. B140475, 2002 Cal. App. Unpub. LEXIS 5189 (Cal. Ct. App. Jan. 3, 2002).

        • Procedural Posture: Appeal from summary judgment in favor of defendants. Summary judgment was granted because plaintiff failed to file timely opposition to the motion. Also ruled that defendants were entitled to summary judgment on the merits.
        • Law: Libel, false light, publication of private facts, unlawful intrusion, common law misappropriation, statutory misappropriation, infliction of emotional distress. [Note: Infliction of emotional distress claim was dropped voluntarily by plaintiff.]
        • Facts: Plaintiff is an actor and model. Photos at issue were taken without plaintiff’s permission while he was at a gay club that forbade cameras and photography of the patrons. Plaintiff alleged that the photos revealed his homosexuality to his family and friends for the first time. He also alleged that the placement of photographs in an article about drug use and unsafe sex practices at gay parties falsely portrayed him as a “drug whore.”
        • Outcome: Affirmed based on the merits and because of late opposition to the motion. Court performed a First Amendment analysis of plaintiff’s tort claims. The test used was “whether the use of plaintiff's likeness means that the Article was 'of and concerning' him, a nexus he must establish.” The court found that in this case, the only aspect that was "of and concerning" the plaintiff was his homosexuality and that he was at a party—both of which were true. The plaintiff failed to establish that the references in the article about unsafe sex and drug use were “of and concerning” him.
      2. Ferguson v. American Apparel, Inc. , No. BC460331 (L.A. Super. Ct. filed Apr. 26, 2011).

        • Procedural Posture: Complaint filed in Los Angeles Superior Court on April 26, 2011. On September 9, 2011, defendants’ motion to compel arbitration and stay proceedings was granted. The granting of defendants’ Petition to Compel Arbitration and Stay Proceedings in Lo, et al v. American Apparel, et al, on July 29, 2011 had collateral estoppel effect on Plaintiff Ferguson and Lubans-Dehaven’s claims as they are parties in the Lo lawsuit. The court severed the confidentiality provision in Plaintiff Morales’s Arbitration Agreement and enforced the remainder of the agreements.
        • Law: Invasion of Privacy - False Light
        • Facts: Shortly after Plaintiffs Ferguson, Lubans-Dehaven and Morales filed separate lawsuits against defendants, blogs purportedly published by the plaintiffs appeared on the internet containing plaintiffs’ nude photos and stating that their sexual harassment lawsuits against defendants were frivolous and part of an extortion scheme.2 Blogs attributed to Plaintiff Ferguson state that Plaintiff Lubans-Dehaven invited her to join an extortion scheme by suing defendants as a means for revenge because defendants refused to hire her.3 Plaintiffs allege that these statements are untrue and that they never created the blogs nor committed any acts of extortion against defendants.4 They also deny ever filing false claims against defendants.5
        • Outcome: Pending.6
    4. Practice Pointer

      The Fifth Circuit affirmed a false light claim under Texas law in Wood v. Hustler Magazine, Inc. after Hustler Magazine published a stolen photo of the plaintiff.7 The false light theory had two components: (1) “[Defendant's] publication falsely represented that [plaintiff] consented to the submission and publication in a coarse and sex-centered magazine of a photograph depicting her in the nude;” and (2) “[T]he publication falsely attributed a lewd fantasy [being raped by bikers] to [plaintiff].”8

      The Sixth Circuit, however, affirmed summary judgment for defendant Hustler Magazine in Ashby v. Hustler Magazine, Inc. , 802 F.2d 856 (6th Cir. 1986). In Ashby , the plaintiff’s nude photos were stolen and submitted to Hustler magazine where they were published. The plaintiff sued defendant for false light, but summary judgment was granted because plaintiff did not present evidence of reckless disregard.9

    1. See Werner v. Times-Mirror Co., 14 Cal. Rptr. 208, 214 (Cal Ct. App.1961); O’Hilderbrandt v. Columbia Broad. Sys., Inc., 114 Cal. Rptr. 826, 833 (Cal. Ct. App.1974); and Gill v. Curtis Publishing Co., 38 Cal. 2d 273, 280 (Cal. 1951). 

    2. Compl. ¶ 46. 

    3. Id. at ¶¶ 4 and 16. 

    4. Id. 

    5. Id. 

    6. The status of this case was last checked on November 10, 2011 at the Los Angeles County Superior Court’s website. 

    7. Wood v. Hustler Magazine, Inc., 736 F. 2d 1084, 1093 (5th Cir. 1984). 

    8. Id. at 1089. 

    9. Ashby v. Hustler Magazine, Inc., 802 F.2d 856 (6th Cir. 1986). 

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  3. Invasion of Privacy – Intrusion

    1. Introduction

      An intrusion claim is particularly appropriate for victims who were filmed or photographed without their knowledge.

    2. Elements of the Claim

      Intrusion:

      (1) Intrusion into a private place, conversation, or matter;

      (2) in a manner highly offensive to a reasonable person.1

    3. Cases

      1. [Names Redacted for Privacy], No. 112CV233490 (Santa Clara Co. Super. Ct. Feb. 18, 2014).

        • Procedural Posture: Complaint filed in Santa Clara County Superior Court on October 3 2011 alleging that defendant 1 failed to safeguard sexually explicit photos of plaintiff and that defendant 2 posted these photos online.

        • Law: Intrusion into Private Affairs (also, but not discussed here: Negligence, Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, Public Disclosure of Private Facts, Impersonation through Internet or Electronic Means (Penal Code § 528.5))

        • Facts: Plaintiff's ex-boyfriend (defendant 1) possessed intimate photos of plaintiff taken consensually during their relationship. Several years later, defendant 1's current girlfriend (defendant 2) obtained the photos of plaintiff and posted them on a new Facebook account created in plaintiff's name. Defendant 2 then sent friend requests to plaintiff's friends, relatives and work associates using this account.

        • Outcome: The jury awarded plaintiff $30,000 in damages against defendant 2 for the Intrusion into Private Affairs claim, in addition to $60,000 in punitive damages. The jury also awarded another $160,000 in damages for the Negligence and Public Disclosure of Private Facts claims, discussed elsewhere.

      2. Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998).

        • Procedural Posture: Plaintiff filed a motion for a preliminary injunction to enjoin defendant from disseminating a videotape depicting plaintiff having sex with Pamela Anderson Lee.
        • Law: Copyright infringement, false designation of origin under the Lanham Act, state-law invasion of privacy based on publicity of the tape over Westwood One’s radio affiliates, violation of California common law right of publicity and violation of the California statutory right of publicity under Cal. Civ. Code § 3344.
        • Facts: Approximately three years after plaintiff and Lee made a sex tape, defendant (a corporation that distributes adult entertainment material through a subscription service on the internet) sent plaintiff a letter advising him they had acquired the tape and all rights necessary to publish it. Plaintiff’s lawyer advised defendant that plaintiff had not authorized the distribution of the tape and that publication of the tape would violate plaintiff’s copyright therein. The letter included demand that defendant cease and desist from attempts to disseminate or exploit the tape. In 1998, plaintiff registered the tape with the Register of Copyrights. Plaintiff filed an ex parte motion for a temporary restraining order to prohibit defendant from duplicating, publishing, promoting, marketing or advertising the tape, alleging that defendant said it would publish the tape on ClubLove, its internet subscription service. At a deposition, Revilla, private investigator who gave the tape to defendant, said that the tape had come from one of plaintiff’s associates who had received it as a gift. Revilla negotiated with defendant and made it clear that he was offering “only the physical Tape, not any intellectual property rights in the expression fixed on the Tape.”
        • Outcome:
          • Preliminary injunction granted.2
          • Intrusion: “For purposes of this motion, the court determines that the plaintiffs are likely to convince the finder of fact that sexual relations are among the most private of private affairs, and that a video recording of two individuals engaged in such relations represents the deepest possible intrusion into such affairs.”
          • Injunction: “IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
            1. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of the Michaels/Lee videotape (the “Tape”);
            2. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of still photographs from the Tape, captured images from the Tape displayed on the Internet, and/or any downloaded hard copies of images from the Tape;
            3. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of all advertising, promotional material, or packaging referring to the Tape;
            4. Taking orders for copies of the Tape through the Internet or any other means;
            5. Shipping copies of the Tape to those purchasers who already have placed orders for copies of the Tape, or to anyone else; and
            6. Using Michaels's or Lee's name, likeness or identity in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”
      3. Lorenzo v. United States, 719 F. Supp. 2d 1208 (S.D. Cal. 2010).

        • Procedural Posture: Border Patrol Agent and his wife sued the Customs and Border Patrol Agency after a video depicting agent shooting illegal immigrant circulated the web. The U.S. filed a motion to dismiss.
        • Law: Violation of Privacy Act, 5 U.S.C. § 552a; Invasion of privacy—Public Disclosure of Private Facts; Invasion of privacy—False Light; Invasion of privacy—Intrusion Into Private Affairs; Negligent Supervision (probably not applicable to our cases); Negligent Infliction of Emotional Distress
        • Facts: Although the situation is different, the harm described in this case is very similar to the harm that results from the online publication of intimate images: “death threats, contempt, ridicule, financial and emotional distress and harm to their reputations.”3 Here, plaintiff shot an illegal immigrant and the Customs and Border Protection Agency released the video of the shooting complete with plaintiff’s name and rank, and the seal of the Department of Homeland Security. The video circulated widely on the internet.
        • Outcome: False light and negligent supervision dismissed because barred by sovereign immunity; public disclosure dismissed because event was newsworthy; intrusion dismissed because event took place in a public setting; wife’s Privacy Act claim dismissed due to lack of standing; negligent infliction of emotional distress not dismissed.
    4. Practice Pointer

      Many of the cases in California Statutory Criminal Law would constitute an intrusion claim.

    1. Shulman v. Group W. Productions, Inc., 74 Cal. Rptr. 2d 843, 863 (Cal. 1998). 

    2. Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823, 841 (C.D. Cal. 1998). 

    3. Lorenzo v. United States, 719 F. Supp. 2d 1208, 1211 (S.D. Cal. 2010). 

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  4. Invasion of Privacy – Public Disclosure of Private Facts

    1. Introduction

      A public disclosure of private facts claim will be useful for virtually any victim of a nonconsensual publication of sexual photos or videos.

    2. Elements of the Claim

      Public Disclosure of Private Facts:

      (1) A public disclosure;

      (2) That concerns private facts;

      (3) The disclosure of which would be offensive and objectionable to a reasonable person of ordinary sensibilities;

      (4) Where the disclosure is not of legitimate public concern.1

    3. Cases

      1. [Names Redacted for Privacy], No. 112CV233490 (Santa Clara Co. Super. Ct. Feb. 18, 2014).

        • Procedural Posture: Complaint filed in Santa Clara County Superior Court on October 3 2011 alleging that defendant 1 failed to safeguard sexually explicit photos of plaintiff and that defendant 2 posted these photos online.

        • Law: Public Disclosure of Private Facts (also, but not discussed here: Negligence, Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, Intrusion into Private Affairs, Public Disclosure of Private Facts, Impersonation through Internet or Electronic Means (Penal Code § 528.5))

        • Facts: Plaintiff's ex-boyfriend (defendant 1) possessed intimate photos of plaintiff taken consensually during their relationship. Several years later, defendant 1's current girlfriend (defendant 2) obtained the photos of plaintiff and posted them on a new Facebook account created in plaintiff's name. Defendant 2 then sent friend requests to plaintiff's friends, relatives and work associates using this account.

        • Outcome: The jury awarded plaintiff $40,000 in damages against defendant 2 for the Public Disclosure of Private Facts claim, in addition to $60,000 in punitive damages. The jury also awarded another $150,000 in damages for the Negligence and Intrusion into Private Affairs claims, discussed elsewhere.

      2. Lorenzo v. United States, 719 F. Supp. 2d 1208 (S.D. Cal. 2010).

        • Procedural Posture: Border Patrol Agent and his wife sued the Customs and Border Patrol Agency after a video depicting agent shooting illegal immigrant circulated the web. The U.S. filed a motion to dismiss.
        • Law: Violation of Privacy Act, 5 U.S.C. § 552a; Invasion of privacy—Public Disclosure of Private Facts; Invasion of privacy—False Light; Invasion of privacy—Intrusion Into Private Affairs; Negligent Supervision (probably not applicable to our cases); Negligent Infliction of Emotional Distress
        • Facts: Although the situation is different, the harm described in this case is somewhat similar to the harm that results from the online publication of intimate images: “death threats, contempt, ridicule, financial and emotional distress and harm to their reputations.”2 Here a border patrol agent shot an illegal immigrant and the Customs and Border Protection Agency released to video of the shooting complete with agent’s name and rank, and the seal of the Department of Homeland Security. The video circulated widely on the internet.
        • Outcome: False light and negligent supervision dismissed because barred by sovereign immunity; public disclosure dismissed because event was newsworthy; intrusion dismissed because event took place in a public setting; wife’s Privacy Act claim dismissed due to lack of standing; negligent infliction of emotional distress not dismissed.
      3. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300 (Cal. Ct. App. 2009).

        • Procedural Posture: Arbitration that found in favor of school and awarded expenses to school, was appealed by parents who had sued the school after their son was the target of online hate speech due to his perceived sexual orientation.
        • Law: Negligence was one of 11 counts, but was dropped by plaintiffs.
        • Facts: “Several students at Harvard-Westlake, using its computers, went to the Web site and posted death threats against plaintiffs' son and made derogatory comments about him. One post read, “I'm going to pound your head in with an ice pick.” Another said, “Faggot, I'm going to kill you.” A third stated, “You are an oversized faggot.... I just want to hit you in the neck-hard.... [G]o to the 405 [freeway] bridge and jump.” A fourth read, “I hate fags.... You need to be stopped.” One student wrote, “I am looking forward to your death.” Another commented, “Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive.” One post read, “I want to rip out your fucking heart and feed it to you.” Several other posts couched threats with references to plaintiffs' son's misperceived sexual orientation as a homosexual.”3
        • Outcome: Judgment was reversed, ordered trial court to make sure that plaintiffs did not pay attorneys’ fees barred by hate crime statutes.4
        • Practice Pointers: It is very important to find out if any statutes could pin unsuccessful plaintiffs with defendants’ attorneys fees. Also, initials used in this case, but full name of parents used in the district court: Caplin v. Harvard-Westlake School .5 Note that this case does not involve publication of sexual photos, but does illustrate prevalence of sexualized violence online.
        • Subsequent cases: Parents/son also sued one of the students and his parents for hate crime, defamation, and intentional infliction of emotional distress in D.C. v. R.R. 6
      4. Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998).

        • Procedural Posture: Plaintiff filed a motion for a preliminary injunction to enjoin defendant from disseminating a videotape depicting plaintiff having sex with Pamela Anderson Lee.
        • Law: Copyright infringement, false designation of origin under the Lanham Act, state-law invasion of privacy based on publicity of the tape over Westwood One’s radio affiliates, violation of California common law right of publicity and violation of the California statutory right of publicity under Cal. Civ. Code § 3344.
        • Facts: Approximately three years after plaintiff and Lee made a sex tape, defendant (a corporation that distributes adult entertainment material through a subscription service on the internet) sent plaintiff a letter advising him they had acquired the tape and all rights necessary to publish it. Plaintiff’s lawyer advised defendant that plaintiff had not authorized the distribution of the tape and that publication of the tape would violate plaintiff’s copyright therein. The letter included demand that defendant cease and desist from attempts to disseminate or exploit the tape. In 1998, plaintiff registered the tape with the Register of Copyrights. Plaintiff filed an ex parte motion for a temporary restraining order to prohibit defendant from duplicating, publishing, promoting, marketing or advertising the tape, alleging that defendant said it would publish the tape on ClubLove, its internet subscription service. At a deposition, Revilla, private investigator who gave the tape to defendant, said that the tape had come from one of plaintiff’s associates who had received it as a gift. Revilla negotiated with defendant and made it clear that he was offering “only the physical Tape, not any intellectual property rights in the expression fixed on the Tape.”
        • Outcome:
          • Preliminary injunction granted.
          • Public Disclosure of Private Facts: Court found that plaintiffs had established a likelihood of success for this claim because the content of the tapes was private and its disclosure would be objectionable to a reasonable person.
          • Injunction: “IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
            1. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of the Michaels/Lee videotape (the “Tape”);
            2. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of still photographs from the Tape, captured images from the Tape displayed on the Internet, and/or any downloaded hard copies of images from the Tape;
            3. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of all advertising, promotional material, or packaging referring to the Tape;
            4. Taking orders for copies of the Tape through the Internet or any other means;
            5. Shipping copies of the Tape to those purchasers who already have placed orders for copies of the Tape, or to anyone else; and
            6. Using Michaels's or Lee's name, likeness or identity in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”
    1. Lorenzo v. United States, 719 F. Supp. 2d 1208, 1215 (S.D. Cal. 2010). 

    2. Lorenzo v. United States, 719 F. Supp. 2d 1208, 1211 (S.D. Cal. 2010). 

    3. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300, 304 (Cal. Ct. App. 2009). 

    4. See Cal. Civ. Code §§ 52(b)(3), 52.1. 

    5. Caplin v. Harvard-Westlake School, No. BC 332 406, 2007 Westlaw 5659331 (Cal. Super. Ct. Aug. 14, 2009). 

    6. D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Cal. Ct. App. 2010). 

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  5. Trespass

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring an action against the person who published the material if the perpetrator obtained the image by trespassing into the victim’s home or personal property (such as the victim’s computer).

    2. Elements of the Claim

      “[A]n unlawful interference with possession of property”1

    3. Cases

      1. Bedolla v. Aglony , No. H032125, 2009 Cal. App. Unpub. LEXIS 755 (Cal. Ct. App. Jan. 28, 2009).

        • Procedural Posture: Jury found for plaintiff and awarded her compensatory damages for past and future emotional distress. The jury also awarded her punitive damages. Defendant moved for a new trial claiming that the evidence was insufficient to support the finding that he had spied on the plaintiff and that the amount awarded for future emotional distress was excessive. He also claimed that the award of punitive damages was excessive and improper. Plaintiff moved to triple her general damages award pursuant to Civ. Code 1708.8(d). Both defendant’s and plaintiff’s motions were denied.

        • Law: Civil – common law invasion of privacy and statutory invasion of privacy under Cal. Civ. Code § 1708.8; (trespass is an element of the statutory tort under Section 1708.8)

        • Facts: Defendant, plaintiff’s neighbor, made a hole in the wall of plaintiff’s bedroom through which he spied on her. The police found evidence that the defendant owned a video surveillance camera, through which he was able to view inside the plaintiff’s bedroom. When plaintiff discovered the hole in her bedroom wall, she called the police and moved in with her mother. The plaintiff was seven months pregnant at the time. Upon finding out that her neighbor had been spying on her, plaintiff said she felt ‘[m]ad, scared, embarrassed, humiliated, a lot things.” She testified that she would regularly stand in front of the mirror nude after showering. The plaintiff received counseling for six months afterwards and claimed to still be reliving the experience and thinking about it each day.

        • Outcome: Affirmed. The court found that the award of future damages was adequately supported by the evidence and that a jury could reasonably infer that the plaintiff would continue to suffer fear and embarrassment. The court also concluded that the damages awarded were reasonable and that the jury’s award had not been the result of “undue passion or prejudice.” The use of a video camera to spy on the plaintiff merited a higher award per Cal. Civ. Code § 1708.8, which requires the use of an audio or video recording device in contrast to the common law invasion of privacy tort. The court noted that Cal. Civ. Code § 1708.8 does not solely apply to paparazzi situations.

      2. Ault v. Hustler Magazine , 860 F.2d 877 (9th Cir. 1988).

        • Procedural Posture: Trial court dismissed appellant’s claims for libel and intentional infliction of emotional distress because the statute of limitations had run out. The trespass claim was also dismissed for failure to state a claim.

        • Law: Invasion of privacy, libel, intentional infliction of emotional distress, trespass and conversion

        • Facts: Defendant Hustler Magazine published an article featuring plaintiff Ault as “Asshole of the Month.” Plaintiff is the founder of Citizens in Action, which organizes opposition to adult video stores. She also lobbies the legislature to enact anti-pornography laws as part of Citizens for Legislation Against Decadence. In the Hustler article, a small picture of plaintiff was superimposed on the rear-end of a bent-over nude male.

        • Outcome:

          • Intentional Infliction of Emotional Distress: Affirmed. Defendant’s publication of the photo was constitutionally protected speech (“privileged opinion”). Plaintiff’s claim for intentional infliction of emotional distress therefore cannot be supported whether plaintiff is a public figure or private person for First Amendment purposes.
          • Trespass: Affirmed. Trespass is an invasion of a possessor’s interest in land.
    4. Practice Pointers

      Note that trespass is an element of a claim under Cal. Civ. Code § 1708.8 (the Anti-Paparazzi Act).

      For claims of both conversion and trespass against chattels, the tangibility of the data obtained may be an issue. California courts have not come to a clear decision concerning the application of property torts to intangible goods. See Olschewski v. Hudson , 87 Cal. App. 282 (1927) (Newspaper route was intangible so could not be the basis of a conversion claim); Payne v. Elliot , 54 Cal. 339 (1880) (Shares of stock could be the subject of a conversion claim); Thrifty-Tel, Inc. v. Bezenek , 46 Cal. App. 4th 1559, 1566 (1996)(Stating, “Whether the intangible computer access code, which was never reduced to paper or reflected on a computer disk [. . .] could be the subjects of conversion presents an issue of first impression in California,” but then declining to decide the issue and finding the defendants liable for trespass instead); and, eBay, Inc. v. Bidder’s Edge, Inc. , 100 F. Supp. 2d 1058, 1069 (N.D. Cal. 2000) (finding it “likely that the electronic signals sent by [Bidder’s Edge] to retrieve information from eBay’s computer system are . . . sufficiently tangible to support a trespass cause of action”).

    1. County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313, 332 (Cal. Ct. App. 2006). 

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  6. Conversion

    1. Introduction

      It may be possible for a victim to argue that the online publication of sex videos/photos constitutes conversion, but this argument expands the traditional view of conversion. Because of the digital nature of photographs and videos online, the defendant’s publication of the material would not interfere with the victim’s possession of it. However, the publication does seem to affect other property rights the victim may have, such as the right of exclusion. A victim has a clearer conversion claim if the perpetrator took the images from the victim in such a way that the victim no longer had access to the images, for example if the perpetrator copied the image from the victim’s computer, and then deleted the image from his/her computer.

    2. Elements of the Claim

      Conversion is “any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.”1 The elements of conversion are (1) plaintiff’s ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiff’s property rights; and (3) damages.2

    3. Cases

      1. Rossi v. Photoglou, No. G048206, 2014 WL 4831971 (Cal. Ct. App. Sept. 29, 2014).

        • Procedural Posture: Defendant appeals a general verdict awarding plaintiff $500,000 in compensatory damages and $23,250 in punitive damages.

        • Law: Conversion (also, but not discussed here: Battery, Assault, Stalking, Intentional Infliction of Emotional Distress, Intentional Interference with Contractual Relations, Intentional Interference with Prospective Economic Advantage)

        • Facts: Defendant allegedly circulated numerous private and semi-nude photos of plaintiff—a reality television star—to several websites and newspapers. Some of these photos were allegedly stolen from a memory card in plaintiff’s camera.

        • Outcome: The court held that there was substantial evidence to support an award on plaintiff’s conversion claim where defendant’s own bankruptcy petition, which was signed under penalty of perjury, assigned an estimate value of $20,000 to $30,000 to “[d]igital form graphic photographs of [plaintiff], [defendant], and [plaintiff] with [defendant].”

      2. Shade v. Gorman, No. C 08-3471 SI, 2009 Westlaw 196400 (N.D. Cal. Jan. 28, 2009).

        • Procedural Posture: Defendant documentary maker filed motion to dismiss plaintiff photographer’s claims.
        • Law: Copyright Infringement, Computer Fraud and Abuse Act (18 U.S.C. § 1030), conversion
        • Facts: Plaintiff took photographs of Afghanistan and other Middle Eastern countries post-9/11. Plaintiff came to defendant filmmaker to create short films using the photos. Plaintiff and defendant were unable to agree on how to create the films and thus ended their business relationship. Plaintiff found out some time later that defendant had not returned all of plaintiff’s photos and had produced a film using those photos.
        • Outcome:
          • Conversion—Return of actual tangible goods (photographs) is not preempted by federal copyright law, but plaintiff needs to amend complaint;
          • Copyright Infringement—Motion to dismiss denied;
          • CFAA—Motion to dismiss denied.
          • “While conversion is generally immune from preemption because it involves tangible property, conversion actions seeking only damages for reproduction of the property-not return of tangible property-are preempted by the Copyright Act.”3
    4. Practice Pointers

      Damages for emotional distress as a result of conversion are also recoverable.4

      There are several scenarios that involve the online publication of intimate images that involve the invasion of property rights. First, the acquisition or access of the intimate images may involve an invasion of personal property. For example, a perpetrator may access a victim’s computer without authorization to obtain images, either through activating the computer’s web camera, or by accessing data files with the images.5 In this scenario, the victim may have a cause of action under the Computer Fraud and Abuse Act (18 U.S.C. § 1030(a)(2)), California Penal Code § 502, and perhaps common law claims of conversion and trespass. Note that in California, a claim of trespass against chattels must involve damage or impairment to a computer system, and cannot consist of electronic communications that do not damage or impair the computer’s functioning.6
      For claims of both conversion and trespass, the tangibility of the data obtained may be an issue. California courts have not come to a clear decision concerning the application of property torts to intangible goods.7

      In Kremer v. Cohen, 337 F.3d 1024, 1031 (9th Cir. 2002), the Ninth Circuit asked the California supreme court to address the issue of whether California law requires the intangible property to be “merged with” a document in order for intangible property rights to be recognized, but the California court declined. The Ninth Circuit did not decide the issue concretely, but did hold that a domain name is connected enough to a document, the Document Name System, that the domain name could be the property at the center of a conversion claim.8 Thus, it may be more effective for a plaintiff who has a clear statutory claim to use the statue rather than a common law trespass or conversion claim.

      There are also scenarios where the acquisition of intimate images involves an invasion of real property, such as when images are recorded by a physical trespass into the victim’s home, or by the use of a visual or auditory enhancing device.9 In this situation, a victim could state a claim under California’s Anti-Paparazzi Act (Cal. Civ. Code § 1708.8).

      Finally, the online publication of intimate images may involve the invasion of a property right in the image itself if the victim holds the image’s copyright. In this scenario, the victim could bring a claim under the Federal Copyright Act (17 U.S.C. § 501).10

    1. Hartford Financial Corp. v. Burns, 96 Cal. App. 3d 591, 598 (1979). 

    2. Id. 

    3. Shade v. Gorman, No. C 08-3471 SI, 2009 Westlaw 196400, *5 (N.D. Cal. Jan. 28, 2009). 

    4. See Gonzales v. Personal Storage, Inc., 65 Cal. Rptr. 2s 473, 481 (1997). 

    5. See, e.g., U.S. v. Feigin, 365 Fed. Appx. 180 (11th Cir. 2010). 

    6. See Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1347 (2003)(finding that trespass did not exist where an ex-employee sent an email message on six occasions to thousands of current Intel employees criticizing Intel’s employment practices). 

    7. See Olschewski v. Hudson, 87 Cal. App. 282 (1927)(Newspaper route was intangible so could not be the basis of a conversion claim); Payne v. Elliot, 54 Cal. 339 (1880)(Shares of stock could be the subject of a conversion claim); Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566 (1996)(Stating, “Whether the intangible computer access code, which was never reduced to paper or reflected on a computer disk [. . .] could be the subjects of conversion presents an issue of first impression in California,” but then declining to decide the issue and finding the defendants liable for trespass instead); and eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1069 (N.D. Cal. 2000)(finding it “likely that the electronic signals sent by [Bidder’s Edge] to retrieve information from eBay’s computer system are . . . sufficiently tangible to support a trespass cause of action”). 

    8. Id. at 1033-34. 

    9. See, e.g., Bedolla v. Aglony, 2009 Cal. App. Unpub. LEXIS 755 (Cal. Ct. App. 6th Dist. 2009) (perpetrator made a hole in the wall of victim’s bedroom through which he recorded her). 

    10. See, e.g., Doe v. Fortuny, 08-c-1050 (N.D. Ill. 2009). 

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  7. Promissory Estoppel

    1. Introduction

      A promissory estoppel claim is similar to the claims of deceit and fraud in making a contract. However, a promissory estoppel claim does not require a specific intent to break the promise, but instead only requires that reliance on the promise was reasonable and foreseeable. This claim is useful to victims who relied on a promise that the sex photos/videos would be kept private or deleted.

    2. Elements of the Claim

      “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”1

    3. Cases

      1. Limandri v. Wildman, Harrold, Allen & Dixon, LLP, No. 2013 WL 2451322 (Cal. Ct. App. June 6, 2013)

        • Procedural Posture: Appeals from judgments of the lower court stemming from litigation bought by Attorney Charles LiMandri, based on his allegations that defendants improperly revealed to the media private matters encompassed by two confidentiality agreements the parties signed while settling litigation between his client, former Miss California USA, Carrie Prejean, and the defendants, the pageant’s executive directors.

        • Law: Breach of contract/promissory estoppel.2

        • Relevant Facts: When Prejean was a contestant in the Miss USA pageant in April 2009, she made statements about how she believes in traditional marriage, and did not support same-sex marriage. After she made her statements, defendants, the pageant executive directors, made several public statements about Prejean’s views, and one of them resigned when Donald Trump refused to strip Prejean of her crown because of her statements. Prejean began negotiations with a publisher to write a book about her experience as Miss California, and in June 2009, she was abruptly terminated. Thereafter, with her attorney, plaintiff LiMandri, she sued the defendants for defamation, public disclosure of private facts, religious discrimination and emotional distress. One of the defendants cross-complained for breach of contract, claiming that Prejean had violated her contractual obligation to abide by high ethical and moral standards, her promise that she has never been photographed in a lewd, compromising or sexually suggestive manner, her duty to appear at Miss California events, and her promise to repay a loan. The parties settled the litigation in November 2009, and all parties (including attorneys) signed confidentiality provisions, which included a promise that any compromising material would be destroyed, and that Prejean or her attorney could seek damages for any violation of the non-disclosure.3 After the settlement, however, TMZ leaked a story about a home-made sex tape that defendants had presented during the settlement discussions to jettison the deal. The only people who had seen or were aware of the video had been at the settlement. Accordingly, LiMandri alleged that defendants must have violated the non-disclosure by leaking it. Moreover, the court denied the defendants’ anti-SLAPP motion because “[s]igning a confidentiality provision waives First Amendment rights, preventing a party from disclosing the circumstances surrounding a settlement agreement.”4 Thus, the defendants’ actions were not protected activities.5

        • Outcome: The court affirmed the judgments, and the parties bore their own costs of appeal.

      2. Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).

        • Procedural Posture: The District Court dismissed plaintiff’s case against Yahoo. Plaintiff appealed.

        • Law: Negligent undertaking/provision of services (barred by CDA § 230); and promissory estoppel as breach of contract (Oregon state law controlling)

        • Relevant Facts: Plaintiff sued Yahoo after her ex-boyfriend posted a profile impersonating her that contained nude photographs that were taken without her knowledge. As a result, strange men began showing up at her workplace expecting sex. Although section 230 of the Communications Decency Act barred plaintiff’s negligent undertaking claim, the Ninth Circuit reversed the dismissal of the promissory estoppel claim (based in a contract theory). Several times, plaintiff followed the instructions on Yahoo’s profile site, and submitted written requests to have the profile removed. Yahoo never responded. Plaintiff later called Yahoo and spoke with a representative who promised to take the profile down.

        • Outcome: Case remanded to District Court, where the motion to dismiss as to the estoppel claim was denied.6

    4. Practice Pointer

      Barnes v. Yahoo!, is a rare case. In most cases, the online intermediary is immune from liability pursuant to the Communications Decency Act, Section 230 (47 U.S.C. § 230).

    1. Aceves v. U.S. Bank, N.A.120 Cal. Rptr. 3d 507, 519 (Cal. Ct. App. 2011)(quoting Advanced Choices, Inc. v. State Dept. of Health Servs ., 107 Cal. Rptr. 3d 470, 479 (2010)(internal quotation marks omitted)). 

    2. In this case, because the parties had actually signed agreements, breach of contract applies, but the analysis is relevant to a promissory estoppel claim as well. 

    3. Limandri v. Wildman, Harrold, Allen & Dixon, LLP, No. 2013 WL 2451322, at *2 (Cal. Ct. App. June 6, 2013). 

    4. Id. at *5. 

    5. Id. at *7. 

    6. Barnes v. Yahoo!, Civil No. 05-926-AA, 2009 WL 4823840, (D. Or. Dec. 11,  2009). 

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  8. Intentional Infliction of Emotional Distress

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may sue under the common law tort of intentional infliction of emotional distress in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of the Claim

      This tort requires:

      (1) outrageous conduct by the defendant;

      (2) intention to cause or reckless disregard of the probability of causing emotional distress;

      (3) severe or extreme emotional distress; and

      (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.1

    3. Cases

      1. Rossi v. Photoglou, No. G048206, 2014 WL 4831971 (Cal. Ct. App. Sept. 29, 2014).

        • Procedural Posture: Defendant appeals a general verdict awarding plaintiff $500,000 in compensatory damages and $23,250 in punitive damages.

        • Law: Intentional Infliction of Emotional Distress (also, but not discussed here: Battery, Assault, Stalking, Conversion, Intentional Interference with Contractual Relations, Intentional Interference with Prospective Economic Advantage) 

        • Facts: Plaintiff—a reality television star—maintained a friendship with defendant through the time plaintiff’s show aired. Plaintiff contended that she and the defendant were merely friends; whereas defendant alleges that he was the plaintiff’s “secret boyfriend” from January 2008 until February 2009. After a falling out between plaintiff and defendant, plaintiff alleged that defendant stole photographs (including several semi-nude and intimate images) from a memory card in plaintiff’s camera, contacted numerous websites and newspapers claiming that he had been plaintiff’s boyfriend while she was engaged to another man, released stolen photographs to various websites, threatened to kill plaintiff and her dogs, threatened to burn down plaintiff’s house, assaulted plaintiff on numerous occasions and sent copies of the stolen photos and tabloid articles to plaintiff’s potential employers.

        • Outcome: The court upheld the jury award of $500,000 in compensatory damages and $23,250 in punitive damages. The jury did not specify the amount awarded for past or future damages, economic or noneconomic damages, or each of the six causes of action on which plaintiff prevailed and defendant failed to request a special verdict.

      2. [Names Redacted for Privacy], No. 112CV233490 (Santa Clara Co. Super. Ct. Feb. 18, 2014).

        • Procedural Posture: Complaint filed in Santa Clara County Superior Court on October 3 2011 alleging that defendant 1 failed to safeguard sexually explicit photos of plaintiff and that defendant 2 posted these photos online.

        • Law: Intentional Infliction of Emotional Distress (also, but not discussed here: Negligence, Negligent Infliction of Emotional Distress, Intrusion into Private Affairs, Public Disclosure of Private Facts, Impersonation through Internet or Electronic Means (Penal Code § 528.5))

        • Facts: Plaintiff's ex-boyfriend (defendant 1) possessed intimate photos of plaintiff taken consensually during their relationship. Several years later, defendant 1's current girlfriend (defendant 2) obtained the photos of plaintiff and posted them on a new Facebook account created in plaintiff's name. Defendant 2 then sent friend requests to plaintiff's friends, relatives and work associates using this account.

        • Outcome: Plaintiff's Intentional Infliction of Emotion Distress claim was unsuccessful, but plaintiff was awarded a total of $190,000 for her Negligence, Intrusion into Private Affairs and Public Disclosure of Private Facts claims and another $60,000 in punitive damages.

      3. Backlund v. Stone, Unpub., No. B235173, 2012 WL 3800883 (Cal. Ct. App. 2nd Dist. Div. 2, Sept. 4, 2012)

        • Procedural Posture: Defendant Stone brought counter-suit for defamation against plaintiff Backlund, who sued him based on his alleged “sextortion” of her; court considered her pleading as a Strategic Lawsuit Against Public Participation (“SLAPP”).

        • Law: Defamation; anti-SLAPP laws

        • Facts: The facts are complex, but in summary, Stone, an aspiring lawyer in his 30s, operated a website for teenagers on which he posted lewd photographs and other salacious material. He presented himself in the mainstream media as an expert on the topic of “sextortion,” a form of blackmail characterized by threats to humiliate a person by posting nude photos on the Internet. In 2009, Stone posted a lewd image of a minor female with commentary that the image appeared to depict the subject masturbating next to an infant, and “such an act, in addition to being morally repugnant, probably violates several statutes pertaining to exposing children to obscenity.”2 Stone published Backlund’s personal contact information with the image, which was viewed by thousands of people, and commented on with outrage and disgust. Backlund was not the person depicted in the image. Accordingly, Backlund brought claims for defamation and false light against him. In February 2010, Stone obtained a topless photograph of Backlund and sent her a publicly viewable “tweet” threatening to “spam” a seminude photograph of her. The tweet and the photograph were accessible to anyone on the Internet, and Backlund did not consent to disclose the photo. She asserted a cause of action for public disclosure of private facts based on Stone’s threat to spam the compromising photograph of her. Backlund was subsequently interviewed by an investigative reporter from Gawker.com for an article about Stone’s threat to publicly humiliate her. Stone then counter-sued her for defamation. He claimed that Backlund’s statements to the Gawker journalist were false, unprivileged, injured his business, and charged him with immoral and criminal activity. He also sought money damages for emotional distress. Backlund brought a motion to strike Stone’s cross-complaint under the anti-SLAPP statute, arguing that the Gawker.com article concerns a public controversy since Stone holds himself out as an expert on sextortion, and has “inserted” himself into the public eye.

        • Outcome: The court denied Backlund’s motion to strike because he had inserted himself into the public eye and Backlund’s comments were “public comments about a publicly disseminated threats against her made by public figure Stone,” and the issue of sextortion was a “matter of grave public concern.”3 The court explained: “In November 2009, by his own admission, Stone published an image of an underage masturbating girl on StickyDrama[.com], along with plaintiff’s contact information, on a notorious website he operated. In February 2010, Stone admittedly tweeted a threat to spam a topless photograph of plaintiff. In July 2010, Stone appeared on Fox News to discuss ‘the scary new phenomenon’ of publishing compromising photographs of teenagers. He has also been featured in The New York Times and on CNN.”4

      4. United States of America v. Ledgard, No. CR 08-00982 (B) DDP, 2012 WL 3996855 (C.D. Cal. Sept. 12, 2012)

        • Procedural Posture: Defendant appealed from his conviction on several counts arising from his continued stalking and harassment of his former girlfriend, F.G.

        • Law: Among other things, this case involves false personation, identity theft, and intentional infliction of emotional distress.

        • Facts: The facts of this case are also long and complex. While Defendant and F.G. were dating, he took nude photos of her, and although he told her he had deleted them, he had not. After they broke up, Defendant began a “campaign” to “destroy her life.” Among other things, he created a Powerpoint digital slideshow containing the sexually explicit photos of F.G. with derogatory captions, and circulated it to several people, including F.G.’s own father. He knew that the distribution of the photos would be particularly upsetting to F.G. because of her conservative family and Armenian culture, which believes that women should not have pre-marital sex. He also hacked into her email to order thousands of dollars of goods on Amazon.com, and messed with her bank accounts, knowing full well that she was not financially stable. F.G.’s severe emotional distress that resulted has lasted for years.

        • Outcome: The court affirmed the convictions as to all counts except the bank fraud. As to the IIED claims, the court found that the government proved beyond a reasonable doubt that Defendant’s offenses were all part of an “orchestrated, relentless, and continuing campaign to destroy every facet of F.G.’s life, including, among other things: (1) to disrupt her financial affairs by taking away her ability to use her Bank of America accounts and her Citibank credit card account; (2) ruin her relationship with her family by emailing graphic sexual photos of F.G. to her father, along with multiple email messages disparaging F.G.; (3) to interfere with her future career by sabotaging her chances for admission to attend the graduate program at Alliant University where Defendant knew she was applying [by sending the nude photos to the admissions office]; and (4) to destroy her chance for a future romantic relationship”5 with another man by sending he and his friends the Powerpoint. He continued with the campaign even after the police informed him they were investigating the emails and activity on F.G.’s account. The court concluded that “not only was Defendant’s conduct a substantial factor in causing F.G.’s severe emotional distress, it was the only factor.”6 Accordingly, the court applied the “felony enhancement” to what were otherwise misdemeanor charges.

      5. Bedolla v. Aglony, No. H032125, 2009 Cal. App. Unpub. LEXIS 755 (Cal. Ct. App. Jan. 28, 2009)

        • Procedural Posture: Jury found for plaintiff and awarded her compensatory damages for past and future emotional distress. The jury also awarded her punitive damages. Defendant moved for a new trial claiming that the evidence was insufficient to support the finding that he had spied on the plaintiff and that the amount awarded for future emotional distress was excessive. He also claimed that the award of punitive damages was excessive and improper. Plaintiff moved to triple her general damages award pursuant to Civ. Code 1708.8(d). Both defendant’s and plaintiff’s motions were denied.

        • Law: Emotional distress (While not directly claimed as a cause of action by the plaintiff, the jury awarded her a monetary award for past and future emotional distress. The defendant contested the award for future emotional distress).

        • Facts: Defendant, plaintiff’s neighbor, made a hole in the wall of plaintiff’s bedroom through which he spied on her. The police found evidence that the defendant owned a video surveillance camera, through which he was able to view inside the plaintiff’s bedroom. When plaintiff discovered the hole in her bedroom wall, she called the police and moved in with her mother. She testified that she would regularly stand in front of the mirror nude after showering.

        • Outcome: Affirmed. “To recover for future emotional distress, a plaintiff must prove that his or her mental suffering is reasonably certain to occur in the future.” The court held that in this case, the jury could reasonably infer that the plaintiff would continue to suffer from fear and embarrassment based on the uncontroverted evidence.

      6. Smith v. Hance, No. D047471, 2007 Cal. App. Unpub. LEXIS 3630 (Cal. Ct. App. May 4, 2007)

        • Procedural Posture: Steven and Gregory Smith appeal from an order issuing an injunction against harassment under CA Code of Civ. Pro. § 527.6. in favor of Hance. The restraining order prohibited the Smiths from taking photographs or videos of the Hance’s home, driveway, garage, yard or vehicles. Smith’s argue that their photographing is communicative and constitutionally protected.

        • Law: Cal. Code of Civ. Pro. § 527.6 — temporary restraining order and injunction prohibiting harassment. [NOTE: Hance had brought an action against the Smiths claiming emotional distress, assault and private and public nuisance. The court of appeals reviewed the trial court’s decision based on Cal. Code of Civ. Pro. § 527.6 and did not discuss the trial court’s finding on the assault claim].

        • Facts: Hance and Smiths are neighbors and have been involved in long standing disputes over various matters. The Smiths constantly took pictures of the Hances, the Hance residence and their vehicles on the premise that they were recording Municipal Code violations.

        • Outcome: Both the trial court and the court of appeals found that the Hances had suffered substantial emotional distress as a result of the Smiths’ conduct, thus establishing the substantial emotional distress element necessary for the granting of a Cal. Code of Civ. Pro. § 527.6 injunction to prevent harassment.

      7. Lester v. Silk, No. C 04-4690 SI, 2005 U.S. Dist. LEXIS 2609 (N.D. Cal. Feb. 18, 2005)

        • Procedural Posture: Defendants removed the case and moved to dismiss state law claims. Plaintiff moved to remand and for award of fees and costs.

        • Law: invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress.

        • Facts: All parties were employees of the Federal Aviation Administration (“FAA”) at Oakland Air Route Traffic Control Center. Defendant Silk brought nude photos to work and said that they were of plaintiff. He copied the photos onto a disk and gave them to Defendant Pruitt. After viewing the photos, Pruitt returned the disk to Silk and told him to dispose of the photos. According to Plaintiff, various other FAA employees also viewed the photographs, disseminated them and commented upon them.

        • Outcome: Denied motion to dismiss; granted motion to remand to state court (Superior Court of Alameda County). “A coworker bringing nude photographs allegedly of the plaintiff to work and then viewing, disseminating and discussing those photos could certainly be a highly personal violation beyond a claim of employment discrimination.” Therefore, motion to dismiss was denied.

        • Attorneys' Fees: Denied. “Given that there was a non-trivial issue concerning Title VII preemption of the state tort law claims against the individual defendants and that this case is related to appending federal case, it was not unreasonable for defendants to remove.”

    4. Practice Pointers

      In California, a separate tort of outrage does not exist. A plaintiff can recover for outrageous conduct by bringing a claim for intentional infliction of emotional distress.7 The relationship between plaintiff and defendant, including whether there was a relationship of trust or friendship, is an important factor in determining whether a defendant’s conduct is so outrageous that it is actionable.8

      Although the U.S. Supreme Court recently found in Snyder v. Phelps , that offensive speech was protected by the First Amendment, plaintiffs who have suffered harm due to nonconsensual online publication of explicit images will likely not be affected by the ruling in Phelps .9 The court in Phelps found the distinction between speech concerning private matters and public matters to be of central importance, and gave as an example of private speech the sex video that was at issue in City of San Diego v. Roe .10 In Phelps , members of the Westboro Baptist Church protested a funeral, and the court found the speech to be of public concern because it related to matters of U.S. conduct and military policy, the actions of U.S. citizens, and sexual abuse in the Catholic church.11 Thus, the speech in Phelps was protected by the First Amendment. Because the speech at the core of situations where a harasser posts the private, intimate photos of the victim is of a patently private nature, the Phelps ruling should not prevent plaintiffs from bringing successful intentional infliction of emotional distress claims.

      In Phelps , the father of deceased Marine Lance Corporal Matthew Snyder sued protestors who picketed his son’s funeral.12 A jury in federal court found defendants liable for millions of dollars in compensatory ($2.9 million) and punitive damages ($8 million which the judge reduced to $2.1 million).13 The appellate court reversed the decision, finding that defendants’ statements were protected by the First Amendment because they were: 1) “matters of public concern,” 2) “not provably false,” and 3) “expressed solely through hyberbolic rhetoric.”.14 The Supreme Court affirmed that the speech in this case was protected by the First Amendment.

      The Free Speech Clause of the First Amendment is a defense to tort claims.15 “Whether the First Amendment prohibits holding [the protestors] liable for [their] speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case.”16 Speech that concerns public affairs “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”17 “Matters of purely private significance” are not entitled to equal protection under the First Amendment.18 Instead, “protections are often less rigorous” for these private matters.19

      Although the public concern test does not yield entirely predictable results, there are several guiding principles.20 Speech concerns the public, regardless of how “inappropriate or controversial” its nature when: (1) it is “fairly considered as relating to any matter of political, social, or other concern to the community;” or (2) it “is a subject of legitimate new interest; that is a subject of general interest and of value and concern to the public.”21 Speech is private when: (1) it is “solely in the individual interest of the speaker and its specific business audience” (for example, an individual’s credit report); or (2) it “[does] nothing to inform the public” about the function or operation of a public entity (for example, a sex video depicting an employee of the entity).22 To decide whether speech is public or private, courts must consider the whole record’s showing of the “content, form, and context” of speech, with no factor being dispositive.23

      In Phelps, the speech consisted of the funeral protestors standing on public land about 1000 feet from the funeral and holding signs that read: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don't Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You're Going to Hell,” and “God Hates You.”24 The Court found that the context of the funeral was not enough to transform the public nature of the speech into a private matter.25 The Court was “not concerned in this case that [the protestors’] speech on public matters was in any way contrived to insulate speech on a private matter from liability” because, among other reasons, “[t]here was no pre-existing relationship between [the protestors] and Snyder.”26 The Court also placed importance on the location of the speech, which was a public setting.27

      The online publication of a sexually explicit image, without the consent of the person portrayed in the image, can be distinguished from the Phelps case primarily because the sexual image is not of “political, social or other concern to the community.”28 In addition, if a pre-existing relationship existed between the publisher of a sexual image and the victim of the publication, that factor would indicate that the matter was private rather than public.29

      In addition to the future harm argument made in Bedolla v. Aglony , No. H032125, 2009 Cal. App. Unpub. LEXIS 755 (Cal. Ct. App. Jan. 28, 2009), victims of online publication of intimate images may point out that there will be an untold amount of future harm suffered by the victim because of the online distribution medium. Online publication of victims’ intimate images creates the possibility that future contacts will come across the intimate images while doing an online search for the victim’s name. The court in United States v. Feigin , 365 Fed. Appx. 180, 182 (11th Cir. 2010) recognized the particular harm that arises when images are posted online stating that it is a crime that “just keeps on giving.”

    1. Trerice v. Blue Cross of Cal., 257 Cal. Rptr. 338, 340 (Cal. Ct. App. 1989). 

    2. Backlund v. Stone, Unpub., No. B235173, 2012 WL 3800883, at *1 (Cal. Ct. App. 2nd Dist. Div. 2, Sept. 4, 2012). 

    3. Id. at *5. 

    4. Id. 

    5. United States of America v. Ledgard, No. CR 08-00982 (B) DDP, 2012 WL 3996855, at *13 (C.D. Cal. Sept. 12, 2012). 

    6. Id. 

    7. Id. 

    8. See, e.g. Delia S. v. Torres, 184 Cal. Rptr. 787, 794 (Cal. Ct. App. 1982). 

    9. Snyder v. Phelps, 131 S. Ct. 1207 (2011). 

    10. City of San Diego v. Roe, 543 U.S. 77, 78 (2004) involved the dismissal of a police officer who sold online explicit videos of himself masturbating after undressing from his police uniform. 

    11. Snyder<, 131 S. Ct. at 1217. 

    12. Id. at 1213-14. 

    13. Id. at 1214. 

    14. Id. 

    15. Id. at 1215. 

    16. Id. 

    17. Id. (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). 

    18. Id. 

    19. Id. 

    20. Id. at 1216. 

    21. Id. 

    22. Id. 

    23. Id. 

    24. Id. at 1213, 1218. 

    25. Id. at 1217. 

    26. Id. 

    27. Id. at 1218-19. 

    28. See Id. at 1216. 

    29. See Id. at 1217. 

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  9. Intentional Interference With Prospective Economic Advantage

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may bring a claim under the common law tort of intentional interference with prospective economic advantage in situations where the material’s publication has interfered with the victim’s employment or ability to earn a living.

    2. Elements of the Claim

      The elements of intentional interference with prospective economic advantage are: “(1) an economic relationship between [plaintiff] and some third party, with the probability of future economic benefit to the [plaintiff]; (2) the [defendant’s] knowledge of the relationship; (3) intentional acts on the part of the [defendant] designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to [plaintiff] proximately caused by the acts of the defendant.”1 The interference must also violate another law or legal standard2 and the relationship between the plaintiff and the third party must have already existed (cannot merely expect a beneficial relationship to arise).3

    3. Cases

      1. Rossi v. Photoglou, No. G048206, 2014 WL 4831971 (Cal. Ct. App. Sept. 29, 2014).

        • Procedural Posture: Defendant appeals a general verdict awarding plaintiff $500,000 in compensatory damages and $23,250 in punitive damages. With regard to the intentional interference with prospective economic advantage claim, defendant contends that the trials court erred in denying a directed verdict motion.

        • Law: Intentional Interference with Prospective Economic Advantage (also, but not discussed here: Battery, Assault, Stalking, Intentional Infliction of Emotional Distress, Conversion, Intentional Interference with Contractual Relations)

        • Facts: Plaintiff—a reality television star—maintained a friendship with defendant through the time plaintiff’s show aired. Plaintiff contended that she and the defendant were merely friends; whereas defendant alleges that he was the plaintiff’s “secret boyfriend” from January 2008 until February 2009. After a falling out between plaintiff and defendant, plaintiff alleged that defendant stole photographs (including several semi-nude and intimate images) from a memory card in plaintiff’s camera, contacted numerous websites and newspapers claiming that he had been plaintiff’s boyfriend while she was engaged to another man, released stolen photographs to various websites, threatened to kill plaintiff and her dogs, threatened to burn down plaintiff’s house, assaulted plaintiff on numerous occasions and sent copies of the stolen photos and tabloid articles to plaintiff’s potential employers. Plaintiff also presented evidence that companies that had contracted with plaintiff or were negotiating contracts with her pulled out of their contracts or negotiations after receiving anonymous packages with pictures of plaintiff as well as viewing numerous photographs posted online.

        • Outcome: The court upheld the jury award of $500,000 in compensatory damages and $23,250 in punitive damages. The jury did not specify the amount awarded for past or future damages, economic or noneconomic damages, or each of the six causes of action on which plaintiff prevailed and defendant failed to request a special verdict. The court also held that the trial court correctly denied defendant’s directed verdict motion with regard to the intentional interference with prospective economic advantage claimbecause plaintiff presented substantial evidence to support the essential elements of her claim, including that (1) companies did pull out of contracts or negotiations due to images of the plaintiff that were sent to or viewed online by these companies; and (2) defendant provided the photos to numerous websites.

    1. Korea Supply Co. v. Lockheed Martin Corp. , 131 Cal. Rptr. 2d 29, 44-45 (Cal. 2003) (internal citations omitted). 

    2. Id . at 49. 

    3. See Sole Energy Co. v. Petrominerals Corp. , 26 Cal. Rptr. 3d 798, 821 (Cal. Ct. App. 2005). 

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  10. Negligence/Gross Negligence

    1. Introduction

      In cases involving nonconsensual publication of sex photos or videos, negligence claims seem to be employed against third parties. For example, if the material was posted from a school or employer’s computer, the suit may include a negligence claim against the school or employer.

    2. Elements of the Claim

      “The elements of a cause of action for negligence are: (1) the existence of a duty on the part of the actor toward another to take action to protect against risk; (2) the failure on the part of the actor to conform to a required standard of conduct in light of the duty imposed; (3) a reasonably close connection between the conduct and the resulting injury, commonly called “proximate cause”; and (4) actual loss or damage resulting from such injury.”1

    3. Cases

      1. [Names Redacted for Privacy], No. 112CV233490 (Santa Clara Co. Super. Ct. Feb. 18, 2014).

        • Procedural Posture: Complaint filed in Santa Clara County Superior Court on October 3, 2011 alleging that defendant 1 was negligent in safeguarding sexually explicit photos of plaintiff and that defendant 2 posted these photos online.

        • Law: Negligence and Negligent Infliction of Emotional Distress (also, but not discussed here: Intentional Infliction of Emotional Distress, Intrusion into Private Affairs, Public Disclosure of Private Facts, Impersonation through Internet or Electronic Means (Penal Code § 528.5)) 

        • Facts: Plaintiff's ex-boyfriend (defendant 1) possessed intimate photos of plaintiff taken consensually during their relationship. Several years later, defendant 1's current girlfriend (defendant 2) obtained the photos of plaintiff and posted them on a new Facebook account created in plaintiff's name. Defendant 2 then sent friend requests to plaintiff's friends, relatives and work associates using this account.

        • Outcome: The jury awarded plaintiff $100,000 in damages against defendant 1 and $20,0000 in damages against defendant 2 for negligence, in addition to $60,000 in punitive damages against defendant 2. The jury also awarded another $70,000 in damages for the  Intrusion into Privacy Affairs and Public Disclosure of Private Facts claims, discussed elsewhere.

      2. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300 (Cal. Ct. App. 2009).

        • Procedural Posture: Arbitration that found in favor of school and awarded expenses to school, was appealed by parents who had sued the school after their son was the target of online hate speech due to his perceived sexual orientation.

        • Law: Negligence was one of 11 counts, but was dropped by plaintiffs.

        • Facts: “Several students at Harvard-Westlake, using its computers, went to the Web site and posted death threats against plaintiff son and made derogatory comments about him. One post read, “I'm going to pound your head in with an ice pick.” Another said, “Faggot, I'm going to kill you.” A third stated, “You are an oversized faggot.... I just want to hit you in the neck-hard.... [G]o to the 405 [freeway] bridge and jump.” A fourth read, “I hate fags.... You need to be stopped.” One student wrote, “I am looking forward to your death.” Another commented, “Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive.” One post read, “I want to rip out your fucking heart and feed it to you.” Several other posts couched threats with references to plaintiff son's misperceived sexual orientation as a homosexual.”2

        • Outcome: Judgment was reversed, ordered trial court to make sure that plaintiffs did not pay attorneys’ fees barred by hate crime statutes.3

        • Practice Pointers: It could be worthwhile to find out if any statutes could pin unsuccessful plaintiffs with defendants’ attorneys fees. Also, initials used in this case, but full name of parents used in the district court: Caplin v. Harvard-Westlake School .4 Note that this case does not involve publication of sexual photos, but does illustrate prevalence of sexualized violence online.

        • Subsequent cases: Plaintiffs also sued one of the students and his parents for hate crime, defamation, and intentional infliction of emotional distress in D.C. v. R.R .5

      3. Lorenzo v. United States, 719 F. Supp. 2d 1208 (S.D. Cal. 2010).

        • Procedural Posture: Border Patrol Agent and his wife sued the Customs and Border Patrol Agency after a video of agent shooting illegal immigrant circulated the web. The U.S. filed a motion to dismiss.

        • Law: Violation of Privacy Act, 5 U.S.C. § 552a; Invasion of privacy—Public Disclosure of Private Facts; Invasion of privacy—False Light; Invasion of privacy—Intrusion Into Private Affairs; Negligent Supervision; Negligent Infliction of Emotional Distress

        • Facts: Although the situation is different, the harm described in this case is somewhat similar to the harm that results from the online publication of intimate images: “death threats, contempt, ridicule, financial and emotional distress and harm to their reputations.”6 Here a border patrol agent shot an illegal immigrant and the Customs and Border Protection Agency released to video of the shooting complete with agent’s name and rank, and the seal of the Department of Homeland Security. The video circulated widely on the internet.

        • Outcome: False light and negligent supervision dismissed because barred by sovereign immunity; Public disclosure dismissed because event was newsworthy; Intrusion dismissed because event took place in a public setting; Wife’s Privacy Act claim dismissed due to lack of standing; Negligent Infliction of Emotional Distress not dismissed.

    4. Practice Pointers

      California courts do not recognize a cause of action for “gross negligence.”7 Similarly, in California, “negligent infliction of emotional distress” is covered under the tort of negligence.8

    1. Koepke v. Loo, 23 Cal. Rptr. 2d 34, 36 (Cal. Ct. App. 1993). 

    2. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300, 304 (Cal. Ct. App. 2009). 

    3. See Cal. Civ. Code §§ 52(b)(3), 52.1. 

    4. Caplin v. Harvard-Westlake School, No. BC 332 406, 2007 Westlaw 5659331 (Cal. Super. Ct. Aug. 14, 2009). 

    5. D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Cal. Ct. App. 2010). 

    6. Lorenzo v. United States, 719 F. Supp. 2d 1208, 1211 (S.D. Cal. 2010). 

    7. Continental Ins. Co. v. American Protection Industries, 242 Cal. Rptr. 784, 789 n. 7 (Cal. Ct. Ap.1987) (Heading states:  “Do Our Courts Recognize a Cause of Action for ‘Gross Negligence’? No.”). 

    8. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 257 Cal. Rptr. 98, 102 (Cal. 1989). 

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  11. Intentional Interference with Contractual Relations

    1. Introduction

      The victim of nonconsensual publication of intimate photographs or videos may bring a claim under the common law tort of intentional interference with contractual relations in situations where the publication has interfered with the victim’s ability to contract and damage has been realized.

    2. Elements

      The elements for the tort of intentional interference with contractual relations are: “(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.”1

    3. Cases

      1. Rossi v. Photoglou, No. G048206, 2014 WL 4831971 (Cal. Ct. App. Sept. 29, 2014).

        • Procedural Posture: Defendant appeals a general verdict awarding plaintiff $500,000 in compensatory damages and $23,250 in punitive damages. With regard to the intentional interference with contractual relations claim, defendant contends that the trials court erred in denying a directed verdict motion.

        • Law: Intentional Interference with Contractual Relations (also, but not discussed here: Battery, Assault, Stalking, Intentional Infliction of Emotional Distress, Conversion, Intentional Interference with Prospective Economic Advantage) 

        • Facts: Plaintiff—a reality television star—maintained a friendship with defendant through the time plaintiff’s show aired. Plaintiff contended that she and the defendant were merely friends; whereas defendant alleges that he was the plaintiff’s “secret boyfriend” from January 2008 until February 2009. After a falling out between plaintiff and defendant, plaintiff alleged that defendant stole photographs (including several semi-nude and intimate images) from a memory card in plaintiff’s camera, contacted numerous websites and newspapers claiming that he had been plaintiff’s boyfriend while she was engaged to another man, released stolen photographs to various websites, threatened to kill plaintiff and her dogs, threatened to burn down plaintiff’s house, assaulted plaintiff on numerous occasions and sent copies of the stolen photos and tabloid articles to plaintiff’s potential employers. Plaintiff also presented evidence that companies that had contracted with plaintiff or were negotiating contracts with her pulled out  of their contracts or negotiations after receiving anonymous packages with pictures of plaintiff as well as viewing numerous photographs posted online.

        • Outcome: The court upheld the jury award of $500,000 in compensatory damages and $23,250 in punitive damages. The jury did not specify the amount awarded for past or future damages, economic or noneconomic damages, or each of the six causes of action on which plaintiff prevailed and defendant failed to request a special verdict. The court also held that the trial court correctly denied defendant’s directed verdict motion with regard to the intentional interference with contractual relations claimbecause plaintiff presented substantial evidence to support the essential elements of her claim, including that (1) companies did pull out of contracts or negotiations due to images of the plaintiff that were sent to or viewed online by these companies; and (2) defendant provided the photos to numerous websites.

    4. Practice Pointers

    1. United Nat'l Maint., Inc. v. San Diego Convention Ctr., Inc., 766 F.3d 1002, 1006 (9th Cir.2014) (citing Pac. Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 270 Cal.Rptr. 1, 791 P.2d 587, 589–90 (1990)). 

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