Florida Common Law

  1. Breach of Contract/Promissory Estoppel

    1. Introduction

      In a situation where parties have a contract involving consent to use an image of the plaintiff (be it for advertising purposes or otherwise), the release would likely bar plaintiff’s claim. However, in a situation where two parties agree to make private images of plaintiff on the condition that such images are kept private (and there is no release), then the plaintiff may have a claim for breach of contract/promissory estoppel.

    2. Elements

      1) A valid contract,1

      2) A material breach; and

      3) Damages.2

    3. Cases

      1. Doe v. Univision Television Group, Inc., d/b/a WLTV-Channel 23, 717 So. 2d 63 (Fla. Dist. Ct. App. 1998)

        • Procedural Posture: On appeal from lower court’s dismissal of claims arising from allegations that defendant news channel violated her right to privacy, and other state laws.

        • Law: Invasion of privacy; Breach of contract and promissory estoppel

        • Facts: Plaintiff received plastic surgery abroad in Costa Rica and was badly scarred on her ears, though she kept it hidden. When news channel did a story on the dangers of obtaining plastic surgery abroad, plaintiff agreed to speak for the story, but she did so with the expectation that the defendant would hide her face and disguise her voice. The defendant did a poor job of both, and several people had recognized the plaintiff. She asserted that her ex-husband was among those who recognized her, and he had used the incident to ridicule her.

        • Outcome: The court reversed the dismissal of the claims. First, the court held that the plaintiff had a legitimate right to claim for invasion of privacy. The court held that it would remand for reinstatement of the claims.3 The court explained that plaintiff had relied on the defendant’s promise to hide her face/disguise her voice in agreeing to disclose her story about her scarring plastic surgery, and that she had been damaged by its inability to properly do so.

    4. Practice Pointers

      If the plaintiff relied on the defendant’s promise to keep private the images, or keep private the plaintiff’s identity, then the plaintiff may have a claim for breach of contract/promissory estoppel if the defendant fails to do so.

    1. If plaintiff claims promissory estoppel rather than breach of contract, the requisites of contract not yet met, but the promise should be enforced to avoid injustice.  Univision Television Group., Inc., 717 So. 2d at 65.  

    2. Schiffman v. Schiffman, 47 So .3d 925, 927 (Fla. Dist. Ct. App. 2010). 

    3. Univision Television Group, 717 So.2d at 65. 

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  2. Conspiracy

    1. Introduction

      If a sexual photo or video is published online, it may have been published by several people, rather than just one. Moreover, although one person does the actual posting of an image, several other individuals may be making comments or taking actions that intensify the situation. For instance, although one person posts an image, another co-conspirator may add sound. In such cases, a plaintiff could try to make out a claim of conspiracy along with its other allegations.

    2. Elements

      1) An agreement between two or more parties;

      2) To do an unlawful act or do a lawful act by unlawful means;

      3) The doing of some overt act in pursuance of the conspiracy; and

      4) Damage to plaintiff as a result of the acts done under the conspiracy.1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      There are no relevant practice pointers to add at this time.

    1. Rey v. Philip Morris, Inc., 75 So. 3d 378, 381 (Fla. Dist. Ct. App. 2011). 

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  3. Conversion

    1. Introduction

      A WMC victim could sue to recover property or damages. For instance, if an individual publishes an online photograph of the victim without her consent, she could try to sue him for conversion to reclaim the goods and/or obtain other equitable relief.

    2. Elements

      “Act of dominion wrongfully asserted over another’s property,” which is “inconsistent with his own ownership therein.”1 Moreover, conversion can be an “appropriate cause of action even if the specific property ‘converted’ has no actual value.”2 The essential element in a claim for conversion is “an unauthorized act which deprives another of his property.”3

    3. Cases

      1. Warshall v. Price, 629 So. 2d 903 (Fla. Dist. Ct. App. 1994)

        • Procedural Posture: On appeal from a lower court decision directing verdict in favor of defendant on plaintiff’s claim for conversion of patient list.

        • Law: Conversion

        • Facts: Plaintiff was a cardiologist who started a private practice in Palm Beach in 1978. He hired defendant on as another cardiologist in 1984, and the two signed agreements documenting the terms of defendant’s employment. Defendant notified plaintiff that he was terminating the relationship early, and defendant obtained a list of patients’ names, addresses, phone numbers, insurance information, and last date of treatment from plaintiff’s office. He used that list to send letters to recruit patients when he opened his own practice. Plaintiff brought a claim for conversion.

        • Outcome: Affirming in part and reversing in part. The court held that the plaintiff could maintain an action for conversion even though plaintiff himself still maintained a copy of the list that was taken: “It is not necessary for a person to deprive another of exclusive possession of their property in order to be liable for conversion.”4

        • Special Notes: The court recognized that the patient list could be of greater value if “it was used to solicit [plaintiff’s] patients. That would indicate that the patient list does have value in the sense that without the list, fees from those patients could not be obtained. Viewed in that light, the list should be capable of conversion even under the trial court’s interpretation of this cause of action.”5

    4. Practice Pointers

      Because Florida recognizes that conversion can occur even if the plaintiff himself still maintains a copy of the converted item, a WMC can pursue a claim for relief even if his or she still has his or her own copies of the offending material in dispute.

    1. Warshall v. Price, 629 So. 2d 903, 904 (Fla. Dist. Ct. App. 1994) (citing 12 Fla. Jur. 2d, Conversion and Replevin § 1 (1979)). 

    2. Id. at 904. 

    3. E.J. Strickland Constr., Inc. v. Dep’t of Ag. & Consumer Servs. of Florida, 515 So. 2d 1331, 1336 (Fla. Dist. Ct. App. 1987). 

    4. Warshall, 629 So. 2d at 904. 

    5. Id. at 905. 

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  4. Defamation

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim. However, it seems less likely that the statements would be oral than written statements (libel), e.g., comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or has had abortions.

    2. Elements

      1) Publication;

      2) Falsity;

      3) Actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person;

      4) Actual damages; and

      5) Statement must be defamatory.1

    3. Cases

      1. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)

        • Procedural Posture: Stepmother of employee of plaintiff religious organization sued the defendant organization following publication of article in newsletter and on website stating that stepmother (who was Jewish), had accepted Christian beliefs. Jews for Jesus petitioned for review of lower court’s decision certifying a question, affirming in part and reversing/remanding in part.

        • Law: Defamation; False light invasion of privacy; Intentional infliction of emotional distress; Negligent training and supervision

        • Facts: Employee of Jews for Jesus published statements that his Jewish stepmother had joined Jews for Jesus when his father died. She explained that her friends and family members read the untrue statements online, and she sued for relief for emotional distress and other common law claims.

        • Outcome: The Florida Supreme Court held that it recognizes a cause of action for defamation by implication, but it expressly chose not to recognize a claim for false light invasion of privacy. The court also noted that a communication can be considered defamatory if it prejudices the plaintiff in the eyes of a substantial and respectable minority of the community. The court explained that defamation already recognized the concepts at issue under false light invasion of privacy claims, and there was “no meaningful distinction” between the two to justify recognizing “false light” as a separate tort.2

        • Special Notes: The court specifically noted that First Amendment rights would be negatively affected by recognizing a false light tort because the “highly offensive to a reasonable person” standard employed is so vague and unclear.3

      2. Cape Publ’n, Inc. v. Reakes, 840 So. 2d 277 (Fla. Dist. Ct. App. 2003)

        • Procedural Posture: Defendants appealed from jury verdict for former newspaper reporter in defamation claim against his former employer when the newspaper fired him for allegedly trespassing on property. The jury ruled in plaintiff’s favor, awarding substantial damages.

        • Law: Defamation; Conversion

        • Facts: Plaintiff was conducting a murder investigation, and he and a partner went to the alleged murderer’s house for background investigation material. When the reporters arrived at the house, they saw that it had already been ransacked, and they took a list of phone numbers off of the floor. They were later fired for “trespassing.” The incident received national attention, and there were articles published about the reporters “stealing” the phone numbers. After plaintiff and his partner were terminated, plaintiff sued the defendant newspaper, the newspaper editor, and an officer of the newspaper for damages arising from the incident. The plaintiff claimed that he could not find employment following the incident because of the defamatory statements the newspaper had published about him.

        • Outcome: The court affirmed in part and reversed in part, affirming $10,000 conversion claim, but reversing as to plaintiff’s defamation claims because the statements made were “true statements” made against plaintiff, and were not made maliciously. Moreover, the plaintiff failed to show that the statements proximately caused her damages. The court explained, “if the statements made by [defendants] were substantially true, the defamation verdicts are reversible,” and the damages appeared to arise as a result of plaintiff’s firing, not defendants’ allegedly “defamatory” statements.4

      3. Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299 (M.D. Fla. 2010)

        • Procedural Posture: Following entry of default judgment for plaintiff against the company, the plaintiff moved for a default final judgment of liability

        • Law: Defamation by implication; Copyright Infringement; Fla. Stat. § 540.08; Invasion of Privacy (misappropriation); Intentional infliction of emotional distress

        • Facts: Plaintiff, an amateur photographer, sued defendants for damages arising from company’s unauthorized use of her self-portrait from age 14 on packaging of a pornographic movie. The company claimed they took the photo from an authorized website. The plaintiff and the defendant company engaged in several heated email exchanges after which the company discontinued the use of the photograph, but plaintiff claims that she was entitled to damages including a lost licensing fee, the company’s profits, and punitive damages arising from the emotional distress the incident caused.

        • Outcome: The court granted plaintiff’s motion for a default final judgment of liability against the company and awarded plaintiff damages of $129,173.20 with interest for her damages. The amount was based on her copyright infringement fees, disgorgement of defendant’s profits, harm to her professional reputation, and her statutory misappropriation claim. The court denied her request for punitive damages because she failed to show that the defendant had acted willfully, and it also denied her request for emotional distress damages because it found that she failed to put forth a claim of IIED where there was no evidence that the defendants had knowingly acted “outrageously”: “[T]he defendants’ conduct, in its totality, was morally wrong and tortious. However, the misconduct still does not ‘go beyond all bounds of decency and . . . [cause] an average member of the community . . . to exclaim, ‘Outrageous.’”5

        • Special Notes: The court awarded plaintiff $100,000 based specifically on the harm caused to her professional reputation, since she alleged that the video had caused her to lose potential jobs, etc.

    4. Practice Pointers

      In addition to being immune through a common law privilege, the Communications Decency Act also may provide an ISP with immunity from a defamation claim. Section 230 of the Communications Decency Act of 1996, is a landmark piece of Internet legislation, which provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.6

      To be immune under the CDA, a defendant must satisfy each of the following prongs: (1) the defendant must be a “provider or user” of an “interactive computer service”; (2) the cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue; and (3) the information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

      Section 230 is controversial because several courts have interpreted the Act as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. This rule effectively protects online entities, including user-generated content websites that qualify as a “provider or user” of an “interactive computer service.” Although the Florida Supreme Court has adopted this view,7 the Eleventh Circuit has not weighed in.8

      However, defendant websites are not immune from intellectual property claims or federal criminal liability. There is a split of authority on whether defendant websites are vulnerable to state intellectual property claims in addition to federal intellectual property claims. If this note is of interest to you, you should consider conducting additional research on whether the Florida right of publicity claim (a state intellectual property claim) is barred by Section 230, or not.

      Moreover, defendant websites forfeit all immunity – not just from intellectual property claims or criminal liability – when they become the information content providers. What conduct qualifies a website as a “content provider” is a legal gray area, and the subject of much litigation.

    1. Id. 

    2. Id. at 1108. 

    3. Id. at 1111. 

    4. Cape Publ’n, Inc. v. Reakes, 840 So. 2d 277, 280-81 (Fla. Dist. Ct. App. 2003). 

    5. Coton v. Televised Visual X-Zoography, Inc., 740 F. Supp. 2d 1299, 1316 (M.D. Fla. 2010). 

    6. 47 U.S.C. § 230. 

    7. See Doe v. Am. Online, Inc., 783 So. 2d 1010, 1018 (Fla. 2001) (finding that the CDA preempted mother’s suit against AOL for negligence arising from the distribution of pornographic photographs of her son in AOL chat rooms). 

    8. Almeida, 456 F.3d at 1324 (finding it unnecessary to decide the preemption issue). 

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  5. Injurious Falsehood

    1. Introduction

      A WMC victim may bring a claim for injurious falsehood when the claim arises in the context of defendant’s alleged false statements about plaintiff’s business that cause economic damages; however, the allegedly false statements in such cases are not aimed at the plaintiff him or herself, but to third parties.

    2. Elements

      1) Falsehoods published about plaintiff about the manner in which they conducted business;

      2) Falsehoods published/communicated to third parties;

      3) Defendants knew the falsehoods might influence third parties; and

      4) The falsehoods played a material and substantial part in inducing others not to invest in plaintiff’s business.1

    3. Cases

      Research is ongoing. A search of Florida cases citing this law did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      An action for injurious falsehood resembles one for defamation because both involve “the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff,” but the two torts protect different interests.2 While defamation protects an injured party’s personal reputation, an action for injurious falsehood protects his or her economic interests against pecuniary loss.3

    An essential element of injurious falsehood is that it caused the victim special damages.4 Thus, where the victim’s proof cannot eliminate the possibility that a loss of future expectations can be explained by other factors, no injurious falsehood claim may lie.

    1. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381, 388 (Fla. Dist. Ct. App. 1999). 

    2. Callaway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So. 2d 204, 209 (Fla. Dist. Ct. App. 2002). 

    3. Id. (citing Restatement (Second) of Torts § 623A (1977)). 

    4. Donald M. Paterson v. Bonda, 425 So. 2d 206, 208 (Fla. Dist. Ct. App. 1983) (failure to produce evidence of any damage). 

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  6. Intentional Infliction of Emotional Distress (“IIED”)/“Outrage”

    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 or outrage in situations where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements

      1) Deliberate or reckless infliction of mental suffering;

      2) Outrageous conduct;

      3) The conduct caused the emotional distress; and

      4) The distress was severe.

      5) The conduct must be so outrageous in character and so extreme in degree that it is considered atrocious, and utterly intolerable in a civilized community.1

    3. Cases

      1. Liberti v. Walt Disney World Co., 912 F. Supp. 1494 (M.D. Fla. 1995)

        • Procedural Posture: On defendants’ motion for summary judgment arising from allegations that defendants failed to appropriately respond to defendants' secret videotaping and dissemination of videos of plaintiffs taken in Disney facilities while they were changing, without the plaintiffs’ knowledge or consent.

        • Law: Intentional infliction of emotional distress; Invasion of privacy; Unlawful interception of oral communications; Negligent supervision of employees; Negligent retention of employees; Sexual harassment

        • Facts: Plaintiffs were female employees of Walt Disney who changed their clothes to costumes/uniforms in Disney’s facilities. Disney had drilled holes in the walls to help combat previous thefts, and one Disney employee devised a system to try to use those holes to videotape and tape-record the plaintiffs without their knowledge and consent. Disney knew about the misconduct three months before putting a stop to its employee’s bad behavior, and a jury could find that its lack of action “crossed the bounds of decency and could lead the average member of the community to exclaim ‘outrageous!’”2

        • Outcome: The court partially denied and partially granted summary judgment for the defendants.

        • Special Notes: The court left open the question of whether Disney was entitled to use the female employees (“Kids”) as bait: “However, this court is not prepared to rule on the record before it that the Defendant did not exceed the bounds of propriety in using the female Kids as ‘bait’ in the sting operation without their prior knowledge or consent, particularly in consideration of the contractual agreement between several of the Plaintiffs and the Defendant regarding a secure dressing environment. Defendant has not established that the use of the female Kids as bait to catch the peeping tom was a ‘permissible way’ of pursuing its legal rights of investigation.”3

      2. Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985)

        • Procedural Posture: Certified question before the Florida Supreme Court because of conflicting decisions by two lower courts regarding the issue

        • Law: Intentional infliction of emotional distress

        • Facts: Defendant McCarson was issued a group insurance policy by Metropolitan Life, which covered employees of his paint and body shop, including his wife. McCarson’s wife soon became incapacitated by Alzheimer’s, and the insurer stopped payment of benefits, claiming that the condition had been preexisting and that coverage was void because McCarson had failed to properly disclose it upon applying for the policy. The insurer discontinued McCarson’s 24-hour nursing care after requesting (and not receiving) proof of ineligibility for Medicare, and after Mrs. McCarson died of a heart attack, her surviving husband sued for wrongful death on the theory that insurer had failed to fulfill the contract terms and had intentionally inflicted emotional distress on Mrs. McCarson, causing her death.

        • Outcome: The court partly affirmed and partly quashed the lower court opinion and remanding to trial court for entry of judgment in favor of insurer. First, no intentional infliction of emotional distress claim could lie because the insurer was not acting “outrageously”—although the insurer’s demand and the “withholding of further benefits had tragic results, and although we must assume from the jury’s verdict that it found Metropolitan was in reckless disregard of the potential for such tragedy, Metropolitan did no more than assert legal rights in a permissible way,” making its actions “privileged.”4 Thus, the court quashed the portion of the lower court decision holding that McCarson’s wife had a cause of action for IIED that could support her surviving husband’s suit for wrongful death.5

        • Special Notes: The court also held that McCarson’s wife was “at best an incidental third-party beneficiary of the contract,” and, therefore, could not have maintained cause of action either for breach of contract of for bad faith dealing on the contract.”6

      3. Armstrong v. H&C Commc’n, Inc., 575 So. 2d 280 (Fla. Dist. Ct. App. 1991)

        • Procedural Posture: Appeal from lower court order dismissing complaint for tort action arising from broadcast of information regarding the discovery of plaintiffs’ child’s remains.

        • Law: Outrage7; Invasion of privacy

        • Facts: Plaintiffs were the parents of an abducted child, whose remains were found after several months. The defendant news channel obtained video footage of the decedent child’s skull and later broadcast that footage without reviewing or editing the film, and without first notifying plaintiffs, who were watching the news at the time of the segment. The plaintiffs sued for damages, and the defendants admitted that the close-up of the skull was not newsworthy, was wrongfully aired, and would not have been aired had the footage been properly reviewed beforehand.

        • Outcome: The court affirmed the dismissal of the invasion of privacy claim, but reversed and reinstated plaintiff’s claim for outrage. The court explained that the independent tort of outrage is recognized in Florida, and that it had “no difficulty in concluding that reasonable persons in the community could find that the alleged conduct of Channel 2 was outrageous in character and exceeded the bounds of decency so as to be intolerable in a civilized community. An average member of the community might well exclaim, ‘Outrageous!’”8

        • Special Notes: The court affirmed dismissal of the invasion of privacy claim because the discovery of the child’s remains, and their possession by the police were “legitimate matters of public concern.”9

      4. Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299 (M.D. Fla. 2010)

        • Procedural Posture: Following entry of default judgment for plaintiff against the company, the plaintiff moved for a default final judgment of liability

        • Law: Defamation by implication; Copyright Infringement; Fla. Stat. § 540.08; Invasion of Privacy (misappropriation); Intentional infliction of emotional distress

        • Facts: Plaintiff, an amateur photographer, sued defendants for damages arising from company’s unauthorized use of her self-portrait from age fourteen on packaging of a pornographic movie. The company claimed they got the photo from an authorized website. The plaintiff and the defendant company engaged in several heated email exchanges after which the company discontinued the use of the photograph, but plaintiff claimed that she was entitled to damages including a lost licensing fee, the company’s profits, and punitive damages arising from the emotional distress the incident caused.

        • Outcome: The court granted plaintiff’s motion for a default final judgment of liability against the company and awarded plaintiff damages of $129,173.20 with interest for her damages. The amount was based on her copyright infringement fees, disgorgement of defendant’s profits, harm to her professional reputation, and statutory misappropriation. The court denied her request for punitive damages because she failed to show the defendant had acted willfully, and it also denied her request for emotional distress damages because it found that she failed to put forth a claim of IIED where there was no evidence that the defendants had knowingly acted “outrageously”: “[T]he defendants’ conduct, in its totality, was morally wrong and tortious. However, the misconduct still does not ‘go beyond all bounds of decency and . . . [cause] an average member of the community . . . to exclaim, ‘Outrageous.’”10

        • Special Notes: The bulk of the damages ($100,000) were awarded to plaintiff for the harm to her professional reputation, since she alleged that the video had caused her to lose potential jobs, etc.

    4. Practice Pointers

      Florida has adopted the Restatement’s view “that the other [person] is peculiarly susceptible to emotional distress,” the actor’s “conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge.”11 Thus, a WMC victim’s personal characteristics should be accounted for in analyzing the viability of his or her IIED claim.

    1. Thomas v. Hosp. Bd. of Dir. of Lee County, 41 So. 3d 246, 256 (Fla. Dist. Ct. App. 2010). 

    2. Liberti v. Walt Disney World Co., 912 F. Supp. 1494, 1507-08 (M.D. Fla. 1995) (denying summary judgment to defendants on their assertion of protection under the doctrine of respondeat superior). 

    3. Id. at 1507. 

    4. Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 279 (Fla. 1985). 

    5. Id

    6. Id. at 279-80. 

    7. In Florida, the tort of outrage is synonymous with intentional infliction of emotional distress.  Baker v. Florida Nat’l Bank, 559 So. 2d 284, 287 (Fla. Dist. Ct. App. 1990) (recognizing that the “tort of outrageous conduct” and the tort of intentional infliction of emotional distress are the same claim). 

    8. Armstrong v. H&C Commc’n, Inc., 575 So. 2d 280, 282 (Fla. Dist. Ct. App. 1991). 

    9. Id. at 283. 

    10. Coton, 740 F. Supp. 2d at 1316. 

    11. Thomas v. Hosp. Bd. of Dir. of Lee County, 41 So. 3d 246, 256 (Fla. Ct. App. 2010) (quoting Restatement (Second) of Torts § 46 cmt. f (1965)). 

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  7. Invasion of Privacy – General

    1. Introduction

      Until 2008, Florida observed the four general categories of “invasion of privacy” recognized by Prosser in the Law of Torts (4th ed. 1971): (1) Intrusion, i.e., invading plaintiffs’ physical solitude or seclusion; (2) Public Disclosure of Private Facts; (3) False Light in the Public Eye, i.e., a privacy theory analogous to the law of defamation; and (4) Appropriation, i.e., commercial exploitation of the property value of one’s name.1 However, in 2008, the Florida Supreme Court held that it would no longer recognize a false light privacy tort because such claims substantially overlapped with defamation and defamation by implication, and provided too loose and objective a standard of analysis to determine whether a defendant’s action was “highly offensive.”2 Through Fla. Stat.§540.08, Florida’s legislature “amplified the remedies available for . . . commercial exploitation of the property value of a person’s name or personality.”3 Thus, in Florida, a WMC plaintiff could bring a claim for three types of invasion of privacy, depending on the circumstances, but the relative of a deceased WMC plaintiff will have more limited rights to relief on behalf of the decedent.4 A WMC victim could potentially use the three remaining theories of invasion of privacy to obtain relief for intentional and unwanted intrusions on their person/home/time that caused him or her damages (including emotional damages).

      1. Intrusion

        In Florida, the tort of intrusion has three elements: (1) there must be a private quarter; (2) there must be some physical or electronic intrusion into that private quarter; and (3) the intrusion must be highly offensive to a reasonable person.5 In considering the third prong, Florida courts have looked to claims of intentional infliction of emotional distress.6 Thus, to support a claim for intrusion, the underlying conduct must be “so outrageous in character,” and “so extreme in danger,” as to “go beyond all possible bounds of decency.” Id. Courts have therefore considered this the threshold question in an intrusion claim.7

      2. Publication of private facts

        In Florida, the elements of a publication of private facts claim are: (1) the publication; (2) of private facts; (3) that are offensive; and (4) are not of public concern.8

      3. False light in the public eye

        Before the Florida Supreme Court abolished the tort in 2008, the two essential elements were that: (1) the false light must be “highly offensive to a reasonable person”; and (2) the defendant must have either acted knowingly or in “reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”9 However, in Florida, a plaintiff with a claim fitting the above description should now proceed with a defamation action.10

      4. Misappropriation

        The elements of a common law misappropriation claim in Florida are substantially identical to a claim under Fla. Stat. § 540.08—namely, misappropriation and commercial exploitation of one’s likeness for monetary gain.11 Moreover, a plaintiff may assert both claims in the same action without abridging the types of remedies available under the common law.12

    2. Cases

      1. Cape Publ’n, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989)

        • Procedural Posture: On review from lower court order granting partial summary judgment on liability issue for parents’ claim against defendant newspaper and reporter for alleged invasion of privacy. The court certified the following issue for review: Can a newspaper be held liable under a private-facts tort theory “for publishing lawfully obtained, confidential child abuse information in a story on a related child abuse trial.”13

        • Law: Invasion of privacy (Publication of private facts)

        • Facts: Respondents were charged with aggravated child abuse after allegedly maliciously punishing their child by scrubbing her bottom with steel wool. When the defendant reporter covering the trial for a local newspaper went to the court for further information, he interviewed the prosecutor, and the case file, which included an HRS report, a sheriff’s case report, and a typed interview with the child. The secretary did not comment on the confidentiality of anything in the file, and the reporter subsequently published a story that asserted statements made by the child during the trial that her parents also forced her to eat hot peppers, etc.14 Fla. Stat. § 119.07 states that access to reports re: child reports is limited.

        • Outcome: The court affirmed the dismissal of plaintiffs’ claims because the information was lawfully obtained and was of legitimate public concern since the article was intended to “scrutinize the judicial function,” and defendant Cape was “printing what it believed to be facts brought out at trial in an effort to hold up to the public what it considered to be a questionable judicial determination. It was not attempting to sensationalize a private nongovernment matter.”15

      2. Cape Publ’n, Inc. v. Bridges, 387 So. 2d 436 (Fla. Dist. Ct. App. 1980)

        • Procedural Posture: Defendants appealed from trial court order compelling them to answer questions inquiring into the editorial process and state of mind of those responsible for the publication of a report involving the plaintiff on “60 Minutes,” and in a later Atlantic Monthly article.

        • Law: Invasion of privacy; Trespass; Intentional infliction of emotional distress

        • Facts: Plaintiff sued petitioners for compensatory and punitive damages arising from claims of invasion of privacy, trespass, and intentional infliction of emotional distress. She alleged that after she was abducted at gunpoint by her husband, who later committed suicide, she was photographed in a state of nudity and distress, and those photos were published by “60 Minutes” and Atlantic Monthly without her permission. The trial court ordered defendants to produce state of mind evidence regarding the editorial process.

        • Outcome: The appeals court affirmed the trial court’s order that defendants produce specific state of mind evidence. The court explained that “[w]e do not perceive any reason to exclude actions for invasion of privacy, trespass or intentional infliction of emotional distress from the above recited principles when the issue of punitive damages is pending before the trial court.”16 The court explained that it would consider such evidence in analyzing the claim for punitive damages and that the admission of such direct/indirect state of mind evidence applied to the press just as it applies to other defendants.17

      3. Cason v. Baskin, 20 So. 2d 243 (Fla. 1944)

        • Procedural Posture: Plaintiff appealed from judgment for defendants sustaining demurrers to each of the four counts to recover damages for an alleged invasion of plaintiff’s right to privacy arising from the writing and publication of defendant’s book.

        • Law: Invasion of privacy

        • Facts: Plaintiff sued for invasion of privacy for character in defendant’s book, Cross Creek, allegedly portraying her without her permission. The vivid portrayal included the use of profanity, but generally portrayed plaintiff positively. Plaintiff sought $100K damages from defendant, who was a good friend at the time.

        • Outcome: The court held that the plaintiff could bring a viable claim for a violation of her right to privacy, but that only nominal damages would be available: “Our conclusion is that, in spite of the fact that the publication complained of, considered as a whole, portrays the plaintiff as a fine and attractive personality, it is nevertheless a rather vivid and intimate character sketch, and the allegations of count two taken as a whole if proven to be true would make out a prima facie case of an invasion of the right of privacy such as would authorize the recovery of at least nominal damages, unless this case falls within one of the recognized exceptions to or limitations upon that right.”18

        • Special Notes: Although the court determined that an invasion of privacy action was supported by the facts of the case, plaintiff had suffered no actual damages: “Furthermore, while legally permissible perhaps, it is inconsistent for plaintiff to sue the defendant for one hundred thousand dollars damages for publishing this short biographical sketch, as constituting an invasion of her right to privacy, and in the same suit claim one hundred thousand dollars damages upon the theory that she is entitled to a share in the proceeds of the sale of the book.”19

      4. Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156 (Fla. 2003)

        • Procedural Posture: On consideration of certified question from the Eleventh Circuit regarding whether plaintiffs’ allegations constituted an invasion of privacy and whether such invasions would be covered by defendant’s insurance.

        • Law: Invasion of privacy (Intrusion)

        • Facts: Plaintiff, a former secretary, sued defendant, her direct supervisor, for unwelcome touching and unwelcome comments constituting sexual harassment, as well as “invasion of privacy” through defendant’s alleged intrusion into plaintiff’s solitude in a manner that would cause mental distress and injury to a reasonable person.

        • Outcome: The court dismissed because plaintiff’s allegations that defendants’ actions “intruded” on her solitude were insufficient to amount to a claim of invasion of privacy because “[t]he intrusion to which [Florida law] refers is into a ‘place’ in which there is a reasonable expectation of privacy and [does] not refer[] to a body part. . . [T]his is a tort in which the focus is the right of a private person to be free from public gaze.”20

        • Special Notes: The court noted that there were four separate categories of invasion of privacy in Florida: “(1) appropriation-the unauthorized use of a person’s name or likeness to obtain some benefit; (2) intrusion-physically or electronically intruding into one’s private quarters; (3) public disclosure of private facts-the dissemination of truthful private information which a reasonable person would find objectionable; and (4) false light in the public eye-publication of facts which place a person in a false light even though the facts themselves may not be defamatory.”21 However, in Jews for Jesus, Inc. v. Rapp,22 the court revisited this issue and determined that Florida would no longer observe a false light invasion of privacy tort.23

      5. Heath v. Playboy Enter., Inc., 732 F. Supp. 1145 (S.D. Fla. 1990)

        • Procedural Posture: Before the court on defendant’s motion for summary judgment for invasion of privacy claim arising out of defendant’s publication of child’s photograph with an account of her paternity in “The Year in Sex” issue of Playboy. The child was the daughter of an aspiring actress, who had reportedly been fathered by Johnny Carson’s oldest son.

        • Law: Invasion of privacy (Publication of private facts)

        • Facts: Plaintiff was the guardian ad litem of Jane Doe, a minor child, suing defendant for invasion of privacy for its publication of plaintiff’s photograph with an account of her paternity in Playboy feature. Plaintiff argued that the publication constituted an invasion of privacy and stigmatized the child. Plaintiff also argued that the publication had exploited the child.

        • Outcome: The court granted summary judgment for defendant, and gave plaintiff ten days to show cause as to why he should not grant sanctions. The court explained that because the facts published in the article were not private, the photograph of the plaintiff was taken in a public place, and all information was obtained legitimately, “plaintiff has failed to state a claim for invasion of privacy based on the theory of publication of private facts,” and the court did not need to consider plaintiff’s consent or the other elements of the claim.

        • Special Notes: The court laid out the elements of a claim for “publication of private facts,” setting forth four elements based on the Restatement’s test, under which a plaintiff must prove: “(1) the disclosure was public; (2) private facts were disclosed; (3) the matter publicized was highly offensive to a reasonable person; and (4) the matter is not a legitimate concern to the public.”24 Here, because the photograph and information accompanying it were public information, there was no claim.

      6. Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 (5th Cir. 1962) (applying FL law)

        • Procedural Posture: On appeal from lower court decision dismissing plaintiff’s claim for invasion of his right to privacy claiming more than $10,000 as punitive damages for defendant’s alleged improper actions.

        • Law: Invasion of privacy

        • Facts: Plaintiff was a waiter at a country club, and he parked there while he was at work. He had previously purchased tires/tubes from defendant Goodyear on the installment plan, and though he was current on his payments, Goodyear came unannounced to his place of business and removed the tires/tubes from his car, leaving it standing on its rims in full view of plaintiff’s colleagues and superiors. Plaintiff claimed that he had 2 sleepless nights, and that the action by defendant was malicious. He also alleged damages to recover for the humiliation and embarrassment of his wife and son.

        • Outcome: The court affirmed in part and reversed in part, determining that plaintiff stated a cause of action in tort for invasion of privacy, while also holding that the court should not consider the allegations of damage to plaintiff’s family because, as in libel cases, “[t]o hold otherwise could lead to a double recovery.”25

      7. Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996)(applying FL law)

        • Procedural Posture: Before the court on plaintiffs’ motion for preliminary injunction

        • Law: Invasion of privacy

        • Facts: The family of health insurer’s chief executive officer sued television reporters from Inside Edition trying to gather video and audio footage on family for a story on the allegedly inflated salaries of the company’s executives. They sought to enjoin the defendants from placing their home under surveillance and from otherwise harassing them after the reporters had consistently followed them from Pennsylvania to Florida in an effort to gather footage.

        • Outcome: The court held that the plaintiffs had shown a likelihood of prevailing on the merits of a claim for invasion of privacy under both Florida and Pennsylvania law. Plaintiffs offered evidence showing that while they would be irreparably emotionally damaged, the defendant photographers would not be irreparably harmed, because they would still be able to pursue the story, and the public would still be able to hear a story on the health insurer company’s high salaries—it would simply be pursued differently. The court explained that “[t]he evidence show[ed] that the Wolfsons’ exceptionally well-trained security force was gravely concerned about Mr. Wilson’s and Mr. Lewis’s actions. The security guards reasonably interpreted their conduct as posing a threat to the safety and well-being of the Wolfson family. Although [the plaintiff’s security guard] did not use his ‘semi-automatic’ weapon, all parties should be grateful that no greater violence ensued.”26

        • Special Notes: Florida adopted the claim of “intrusion upon seclusion,” from the Restatement (Second) of Torts, § 652B, which states that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”27 The comments to the Restatement note that “(a) The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man. (b) The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. . . The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.”28

      8. Jacova v. S. Radio & Television Co., 83 So. 2d 34 (Fla. 1955)

        • Procedural Posture: On appeal from lower court decision granting summary judgment in favor of defendant where plaintiff sued for an alleged violation of his right to privacy and for being identified as a gambler by a canned film telecast of a gambling raid made on a cigar store.

        • Law: Invasion of privacy

        • Facts: Plaintiff was an innocent customer filmed during a gambling raid on a Florida cigar store. He later brought a right of privacy action to recover on a claim of invasion of privacy, which he alleged had led to damages and injuries to both his person and his business. The lower court granted summary judgment for the defendant.

        • Outcome: The court affirmed and held that the showing of “plaintiff’s picture on the telecast in the manner in which it appeared was not an unreasonable or unwarranted invasion of his privacy, as a matter of law,”29 because plaintiff was “in a public place and present at a scene where news was in the making.”30

        • Special Notes: The court explained that plaintiff was not tagged as a gambler, and his name was not mentioned; “The most that can be said is that his presence at the scene was under ambiguous and perhaps, suspicious circumstances. But certainly those of his friends and acquaintances who saw his picture on the screen would know there was nothing sinister about his presence there.”31

      9. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002)

        • Procedural Posture: On cross-motions for summary judgment on plaintiff’s claims arising from her feature in a Girls Gone Wild video.

        • Law: False light Invasion of Privacy; Fla. Stat. § 540.08; Commercial misappropriation of likeness

        • Facts: Plaintiff, a minor (only seventeen when videos were shot) was videotaped on the streets of Panama City, Florida with another female friend, and they exposed themselves in exchange for plastic beads. Plaintiff sued defendants, the filmer/distributors of Girls Gone Wild video featuring her and her companion, claiming they violated her rights.

        • Outcome: The court affirmed summary judgment for the defendants on all claims. The court rejected the statutory claim because it deemed the video an “expressive work,” which was not the type of commercial depiction that was contemplated by the statute—the fact that the video had sold for a profit was irrelevant to that analysis.32 Moreover, the court determined that plaintiff’s minor status did not undermine her ability to consent because the statute in question did not explicitly discuss disability of a minor, unlike several other state laws.33 The court affirmed summary judgment to defendants on false light privacy because the publicity at issue was “an accurate portrayal of the public display,” and was not “unreasonable and false.”34 The court showed little compassion for the plaintiff, writing: “[T]his is not a case where Lane was videotaped at a private pool removing her clothing, only to have her image later interspliced with videotapes of other women removing their clothing in public, giving the false impression that Lane had engaged in such debauchery. Rather, Girls Gone Wild video depicts Lane accurately as exchanging nude photographs for beads on a street in Panama City, just as dozens of other women in the video are doing.”35 Moreover, the marketing of the video was irrelevant because there was nothing connecting the plaintiff with the more explicit sexual content.36

        • Special Notes: This case is a direct contrast to Gritzke v. M.R.A. Holdings, LLC,37 in which the court denied the defendants’ motion to dismiss plaintiff’s common law and statutory invasion of privacy claims for publishing her photograph on the package and advertisements of a Girls Gone Wild video. In Gritzke, however, the defendants specifically used plaintiff’s image to market the video without her consent to disseminate the video, let alone use her image on the packaging. In Lane, however, plaintiff’s image was not used for marketing purposes; rather, plaintiff was merely depicted as one of the many women participating in the public escapades that defendant had captured on film.

      10. Gritzke v. M.R.A. Holdings, LLC, No. 4:01CV495-RH, 2002 WL 32107540 (N.D. Fla. Mar. 15, 2002)

        • Procedural Posture: On defendant’s motion to dismiss plaintiffs’ statutory and common law claims arising from use of her image on Girls Gone Wild video

        • Law: Fla. Stat. § 540.08; Invasion of Privacy (Misappropriation); Florida Unfair and Deceptive Trade Practices Act

        • Facts: While she was a Florida college student, plaintiff was photographed and videotaped exposing her breasts at Mardi Gras in Louisiana, and her photograph was later used to market Girls Gone Wild videos on the defendant’s video packaging and web site without her permission. She sued for damages.

        • Outcome: Denying motion to dismiss all claims, and rejecting defendant’s First Amendment defense because “[t]he First Amendment provides no right to make an unconsenting individual the poster-person for a commercial product, as plaintiff alleges defendant has done.”38

        • Special Notes: The key to the holding in this case was the fact that the plaintiff was featured in the actual advertising of the video, unlike other plaintiff’s with similar claims against the Girls Gone Wild producers, who were simply depicted flashing the camera but were not featured in defendant’s marketing materials.

      11. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)

        • Procedural Posture: Stepmother of employee of plaintiff religious organization sued the defendant organization following publication of article in newsletter and on website stating that stepmother (who was Jewish), had accepted Christian beliefs. Jews for Jesus petitioned for review of lower court’s decision certifying a question, affirming in part and reversing/remanding in part.

        • Law: Defamation; False light invasion of privacy; Intentional infliction of emotional distress; Negligent training and supervision

        • Facts: Employee of Jews for Jesus published statements that his Jewish stepmother had joined Jews for Jesus when his father died. She explained that the untrue statements were read online by friends, and she sued for relief.

        • Outcome: The Florida Supreme Court held that although it would recognize a cause of action for defamation by implication, it would no longer recognize a common law claim for false light invasion of privacy. The court explained that defamation already recognized the concepts at issue under false light invasion of privacy claims, and there was “no meaningful distinction” between the two to justify recognizing “false light” as a separate tort.39

        • Special Notes: The court found that First Amendment rights would be negatively affected by recognizing a false light tort because the “highly offensive to a reasonable person” standard employed is so vague and unclear.40 The court noted that “because the benefit of recognizing the tort, which only offers a distinct remedy in relatively few unique situations, is outweighed by the danger of unreasonably impeding constitutionally protected speech, we decline to recognize a cause of action for false light invasion of privacy.”41

    3. Practice Pointers

      Florida law does not impose liability for the publication of facts that are of “legitimate public concern.” The Florida Supreme Court has recognized that this “newsworthiness” exception is a “formidable obstacle” for a plaintiff bringing an invasion of privacy suit.42 The exception covers things such as current events of public significance, and information about actors participating in them, as well as “soft news” and human interest portrayals.However, courts in Florida recognize that individuals maintain a zone of privacy about certain sensitive personal matters.43 In Jews for Jesus,44 the Florida Supreme Court held that it would no longer recognize a claim for “false light invasion of privacy,” since defamation and other statutory/common law claims already cover the issue.45

    1. See Loft v. Fuller, 408 So. 2d 619, 622 (Fla. Dist. Ct. App. 1981). 

    2. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1114 (Fla. 2008) (holding that Florida would no longer observe a false light invasion of privacy claim despite the fact that several other states had gone the other way on the issue). 

    3. Id

    4. See id. at 623 (“[T]he majority view, as represented by the Restatement of Torts, is that the deceased’s relatives may not maintain an action for invasion of privacy, either based on their own privacy interests or as a representative for the deceased where the alleged invasion was directed, as was the case here, primarily at the deceased.”). 

    5. Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D. Fla. 2010). 

    6. Stoddard v. Wohlfahrt, , 573 So. 2d 1060, 1062-63 (Fla. Dist. Ct. App. 1991) (applying the standard for intentional infliction of emotional distress to evaluate the offensiveness of conduct in an intrusion claim). 

    7. See, e.g., Stasiak v. Kingswood Co-op, Inc., No. 8:11-cv-1828-T-33MAP, 2012 WL 527537, at *2 (M.D. Fla. Feb. 17, 2012). 

    8. Cape Publ’n, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989). 

    9. Harris v. District Bd. of Trustees of Polk Cmty. Coll., 9 F. Supp. 2d 1319, 1329 (M.D. Fla. 1998). 

    10. Jews for Jesus, 997 So. 2d at 1114 (Fla. 2008) (abolishing the tort of false light invasion of privacy). 

    11. Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299, 1313 (M.D. Fla. 2010) (noting that under Florida law, the elements of common law misappropriation and statutory misappropriation are substantially identical).  See supra at 6-10 (discussion of Fla. Stat. § 540.08). 

    12. Coton, 740 F. Supp.2d at 1313 (citing Almeida, 456 F.3d at 1325). 

    13. Hitchner, 549 So.2d. at 1375. 

    14. Id. at 1376. 

    15. Id. at 1378. 

    16. Cape Publ’n v. Bridges, 387 So. 2d 436, 440 (Fla. Dist. Ct. App. 1980). 

    17. Id. at 339-40. 

    18. Cason v. Baskin, 20 So. 2d 243, 247 (Fla. 1944) 

    19. Id. at 254. 

    20. Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162-63 (Fla. 2003) 

    21. Id. at 162. 

    22. 997 So. 2d at 1098. 

    23. See supra at 18. 

    24. Heath v. Playboy Enter., Inc., 732 F. Supp. 1145, 1148 (S.D. Fla.   1990) (citing Restatement (Second) of Torts § 652D (1977)). 

    25. Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 ,13 (5th Cir. 1962). 

    26. Wolfson v. Lewis, 924 F. Supp. 1413, 1435 (E.D. Pa. 1996) (applying Florida law). 

    27. Restatement (Second) Torts § 652(B). 

    28. Id. at cmts. a & b. 

    29. Jacova v. S. Radio & Television Co., 83 So. 2d 34, 40 (Fla. 1955). 

    30. Id

    31. Id

    32. Lane, 242 F. Supp.2d at 1215. 

    33. Id. at 1217. 

    34. Id. at 1222. 

    35. Id

    36. Id. at 1223. 

    37. See Gritzke v. M.R.A. Holdings, LLC, No. 4:01CV495-RH, 2002 WL 32107540, at *2-4 (N.D. Fla. Mar. 15, 2002). 

    38. Id. at *4. 

    39. Jews for Jesus, Inc., 997 So. 2d at 1108. 

    40. Id. at 1111. 

    41. Id. at 1114. 

    42. Hitchner, 549 So. 2d at 1377. 

    43. See, e.g., Univision, 717 So. 2d at 65 (rejecting defendant’s argument that the interview of plaintiff about her botched plastic surgery was newsworthy because “while the topic of the broadcast was of legitimate public concern, the plaintiff’s identity was not”). 

    44. 997 So. 2d at 1105-06. 

    45. Id. 

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  8. Misappropriation of Name

    1. Introduction

      Misappropriation of his or her name is a separate claim that could be tied to the improper use of his or her image.

    2. Elements

      Deprivation of right to control the use of one’s name. Importantly, a plaintiff need not prove monetary loss to recover damages, though credible evidence like expert testimony of others with experience in the field should be offered if plaintiff seeks to recover more than nominal damages.1

    3. Cases

      1. Zim v. W. Publ’g Co., 573 F.2d 1318 (5th Cir. 1978) (applying FL law)

        • Procedural Posture: Appeal from order of lower court finding in favor of a publisher in an author’s suit seeking an accounting of royalties from defendant publisher under a contract and seeking damages for an alleged unauthorized and wrongful appropriation of his name

        • Law: Invasion of privacy (misappropriation)

        • Facts: The plaintiff sued the defendant publisher for royalties arising from their publication of a book. The parties had a signed contract for royalties. The court found that the parties had a valid agreement for the payment of royalties.

        • Outcome: The court affirmed in part, reversed in part, and remanded. The court held that the publisher’s use of the author’s name in connection with the book had been tortious and unauthorized, where the parties had contracted only for defendant to use plaintiff’s name in one book. The court explained that plaintiff should be awarded nominal damages even though he could not prove that the publication had caused him any actual damages.

    4. Practice Pointers

      Nothing relevant at this time.

    1. Zima v. W. Publ’g Co., 573 F.2d 1318, 1327 (5th Cir. 1978) (applying Florida law). 

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  9. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

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

    2. Elements

      1) The plaintiff must suffer a physical injury;

      2) The plaintiff’s physical injury must be the result of psychological trauma;

      3) The plaintiff must be involved in some way in the event causing the negligent injury to another; and

      4) The plaintiff must have a close personal relationship to the directly injured person.1

    3. Cases

      1. Badillo v. Playboy Entm’t Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707 (M.D. Fla. Mar. 28, 2006)

        • Procedural Posture: On defendants’ motion for summary judgment on all claims

        • Law: NIED; 18 U.S.C. §§ 2251, 2252, 2252A (“Sexual Exploitation of Children”); Fla. Stat. § 540.08; Invasion of Privacy (“Misappropriation” and “False Light”); Negligent Supervision; Premises Liability; Florida Deceptive and Unfair Trade Practices Act; Civil Conspiracy; Aiding and Abetting

        • Facts: Plaintiffs, seventeen and eighteen-year-old girls who had travelled to Florida together for spring break, participated in a wet T-shirt contest at a local hotel. They consumer Budweiser products behind the stage, and affixed temporary tattoos containing the “Bud Light” insignia on their arms, back, and breasts. Once on stage, Plaintiffs danced provocatively, exposing their breasts, and one of the two plaintiffs exposed her genital area. The plaintiffs never asked to withdraw from the competition. The contest was photographed and recorded on videotape by employees or agents of co-defendant production companies, and footage of plaintiffs was subsequently incorporated into commercial video products sold at several retail stores and broadcast over cable networks. The products were not related to defendant Anheuser Busch. Plaintiffs sued under various federal and state laws to claim damages for the dissemination of the footage, claiming that they had been wrongfully induced to enter the wet t-shirt contest and had not consented to the use of their image by defendants.

        • Outcome: The court granted summary judgment for the defendant Anheuser Busch on all claims because plaintiffs produced no evidence that defendant had induced them to participate in the contest, and had failed to show that defendant was even aware of the video, let alone knew that the videos were being published to “directly promote” defendant’s products. The court explained that “[a]t most, [plaintiffs’] images on the video are expressive works used solely for the purpose of entertaining the viewer.”2 Moreover, “[t]hat Plaintiffs in hindsight regret their decision to participate in the contest does not negate the fact that they willingly and voluntarily participated and willfully and voluntarily engaged in the conduct that is shown on the video tape. Plaintiffs have . . . presented no substantive evidence to sustain their claim.”3 In regards to the NIED claim, the court dismissed because plaintiffs failed to show that defendant owed them any duty. Plaintiffs alleged that defendant had a duty to “inquire as to Plaintiffs’ ages, obtain proof of identification, and obtain consents prior to allowing Plaintiffs to participate in the wet t-shirt contest,” but “Defendant controlled neither the contest nor the stage on which the contest was held,” thus it could not be said to have “created or controlled the risk of harm [p]laintiffs are alleging.”4

    4. Practice Pointers

      Florida recognizes an “impact rule,” in which the emotional distress must be accompanied by a “physical impairment” within a short period of time.5 A WMC victim would have to satisfy the physical injury requirement.

      Moreover, a WMC victim is also unlikely to bring an NIED claim because in most cases, he or she is being affected by someone’s intentional (rather than negligent) actions. On the other hand, one can imagine a situation where the offender lost or gave away a computer that stored the images that were subsequently made public, and this could provide the basis for an NIED claim.

    1. Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 873 (Fla. 2007). 

    2. Badillo v. Playboy Entm’t Group, Inc., No. 8:04CV591T30TBM, 2006 WL 785707, at *4 (M.D. Fla. Mar. 28, 2006). 

    3. Id. 

    4. Id. 

    5. Zell v. Meek, 665 So. 2d 1048, 1053-54 (Fla. 1995). 

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  10. Tortious interference with Business Relations

    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

      1) Existence of a business relationship (not necessarily evidenced by an enforceable contract);

      2) Knowledge of the relationship on the part of the defendant;

      3) An intentional and unjustified interference with that relationship by the defendant; and

      4) Damage to the plaintiff as a result of the breach of the relationship.1

    3. Cases

      1. Animal Rights Found. of Florida, Inc. v. Siegel, 867 So. 2d 451 (Fla. Dist. Ct. App. 2004)

        • Procedural Posture: Appeal from lower court decision issuing temporary injunction against animal rights activist group against a developer of a timeshare development who wanted to use animal shows to attract potential buyers.

        • Law: Tortious interference with business relations; Invasion of privacy; Slander; and libel

        • Facts: Plaintiff owned a condo development and wanted assistance in obtaining temporary injunction against defendants, an animal rights group. The lower court granted the injunction.

        • Outcome: On appeal, the court reversed, holding that the scope of the injunction was far too broad, and that tortious interference did not warrant an injunction because the prohibited speech at issue was pure commercial speech.2

    4. Practice Pointers

      Nothing relevant at this time.

    1. Kenniasty v. Bionetics Corp., 82 So. 3d 1071, 1074 (Fla. Dist. Ct. App. 2011). 

    2. Animal Rights Found. of Florida, Inc. v. Siegel, 867 So. 2d 451 (Fla. Dist. Ct. App. 2004). 

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