Georgia Common Law

  1. Invasion of Privacy (Public Disclosure, Appropriation, Intrusion, False Light)

    1. Introduction

      In addition to statutory privacy protections under Georgia criminal law, Georgia has adopted the four forms of invasion of privacy set forth in Restatement (Second) of Torts § 652A (1977). There is also a right to privacy in the Georgia Constitution, under Chapter 1, Article 1, which states “no person shall be deprived of life, liberty, or property except by due process of law.”1 Although the courts have held that the right of privacy guaranteed by the Georgia Constitution is far more extensive than that protected by the United States Constitution, the constitutional right has applied mostly in the context of allegedly unlawful searches and seizures (with or without a warrant) and improper subpoenas.2 This constitutional right is not relevant as an independent cause of action for victims.

      However, depending on the circumstances of a particular case, a WMC victim could potentially allege four types of common law invasions of privacy (appropriation, intrusion, publicity, or false light). There is limited Georgia case law on these types of claims that are relevant to WMC victims, but a few cases have addressed invasion of privacy claims involving harassment, and are useful guides to use for claim construction.

    2. Elements

        (1) Appropriation of Likeness

          (a) An appropriation of plaintiff’s likeness or image without his or her consent;

          (b) Resulting harm to the plaintiff; and

          Resulting benefit to the defendant.3

        (2) Intrusion on Seclusion

          (a) A substantial interference with plaintiff’s solitude - either as to her person or as to her private affairs or concerns; and

          (b) The interference would be highly offensive to a reasonable person.4

        (3) Public Disclosure of Private Life

          (a) Public disclosure;

          (b) Facts are private, secluded or secret facts and not public ones; and

          (c) The interference would be highly offensive to a reasonable person or ordinary sensibilities under the circumstances.5

        (4) False Light

          (a) Defendant publicizes a matter concerning plaintiff that places plaintiff in a false light;

          (b) Defendant acts with reckless disregard as to the truth or falsity of the publicized matter, and the false light in which the plaintiff would be placed; and

          (c) The false light in which plaintiff was placed would be highly offensive to a reasonable person.6

    3. Cases

      1. Cabaniss v. Hipsley, 151 S.E.2d 496 (Ga. Ct. App. 1966)
        • Procedural Posture: Defendant appealed from a judgment of liability for invasion of privacy.
        • Law: Invasion of privacy (intrusion upon plaintiff’s seclusion, appropriation, false light, and disclosure of private facts)
        • Facts: Plaintiff brought an action against a magazine after the magazine used photographs taken of her performing her dancing act. The defendant alleged the magazine had obtained a copy of a photograph (depicting her in little clothing) she had taken to send out to exotic dance clubs before performances without her consent and published it in advertisements inviting persons to the Atlanta Playboy club and using a stage name that was not hers. In reality, defendant had not appeared at the Atlanta Playboy club or used that stage name. The jury found in favor of the plaintiff that she had suffered damages from the invasion of privacy and awarded $15,000 in damages. The defendants appealed the verdict.
        • Outcome: The court reversed the judgment after analyzing the various rights of privacy. Under the theories of public disclosure of embarrassing private facts and intrusion into seclusion, the court found that the facts disclosed in the picture were not private, secluded or secret because she had given the photograph to other clubs and her photograph was routinely put on advertising for such clubs.7 Under the theory of false light, the court found that there was no falsity or fiction revealed, except for the fact that she was appearing at the Atlanta Playboy club, which “does not authorize a verdict for general damages for injury to plaintiff’s reputation or to her sensibilities.”8 Finally, the court found that the defendant’s image had been exploited without her consent, but that the damages sought in this case were not what could be awarded under this theory, because there was no proof of the advertising value of the photograph. The damages awarded had all been related to injury to feelings, sensibilities, and reputation under the other theories of privacy, so the court reversed the judgment.9
        • Special Notes: The court here focused on the fact the plaintiff had publicly disclosed the nude images to the public before in refusing to award damages. The court suggests recovery could be available under an “appropriation” theory if a quantifiable commercial benefit to the defendant can be shown.
      2. Troncalli v. Jones, 514 S.E.2d 478 (Ga. Ct. App. 1999)
        • Procedural Posture: Appeal from judgment awarding plaintiff damages.
        • Law: Invasion of privacy (intrusion into seclusion), Stalking (see other sections), IIED (see other sections)
        • Facts: The defendant intentionally brushed up and touched victim’s breasts and then followed her in his car, made threatening gestures, put his mouth on her neck, followed her again, and came to her house and knocked loudly on her door. The plaintiff brought claims for intentional infliction of emotional distress and invasion of privacy. The trial court denied the defendant’s motion for directed verdict.10
        • Outcome: The court affirmed the trial court’s denial of the defendant’s motion for a directed verdict related to privacy. Specifically, the court explained that this type of behavior was “clearly proceeding” under the category of intrusion into the defendant’s private affairs.11 The defendant’s actions were unwanted, uninvited, and unwarranted intrusions upon the plaintiff’s seclusion.12
        • Special Notes: This court notes that there are four loosely related by distinct torts that a court will consider for invasions of privacy. If a WMC victim has had private information disclosed he or she should analyze the elements of each type of invasion of privacy to bring an action against the wrongdoer.
      3. Elmore v. Atlantic Zyre, Inc., 341 S.E.2d 905 (Ga. Ct. App. 1986)
        • Procedural Posture: Plaintiff appealed grant of summary judgment for defendant store owners.
        • Law: Invasion of privacy (seclusion, peeping tom)
        • Facts: An individual arrested and charged with sodomy brought an invasion of privacy action after store owners observed sexual activity occurring behind the door of a closed stall. The plaintiff alleged that the defendants had invaded his privacy by spying on him in a private place. The trial court granted summary judgment for the defendant store owners. Plaintiff appealed.
        • Outcome: The court affirmed the grant of summary judgment. Although it acknowledged that an action for invasion of privacy may be based upon an intrusion into one’s private affairs or seclusion, the court explained that the privacy interests of the individual must be balanced with the interests of store owners to prevent criminal activity. The court stated that “the right of privacy is not absolute, but it must be kept within its proper limits.”13 Here, the toilet stall was a restroom provided by the store for its customers, and the store owners were investigating a customer complaint. The court concluded “plaintiff’s interest in privacy was subordinate to the defendant’s interest in providing crime-free rest rooms for its customers, and there existed sufficient cause for suspicion of criminal activity to justify any intrusion which occurred.”14
      4. Hudson v. Montcalm Publishing Corporation, 379 S.E.2d 572 (Ga. Ct. App. 1989)
        • Procedural Posture: Plaintiff appeals from grant of summary judgment.
        • Law: Invasion of privacy (intrusion upon seclusion)
        • Facts: Plaintiff’s ex-husband submitted a nude photograph of his ex-wife that he had taken during their marriage to defendant publisher for an erotic photo contest. The ex-husband said he was the photographer and listed her personal information on the accompanying entry blank and model release, but plaintiff had not in fact consented to the photo’s publication or release. After obtaining the falsified release from the publisher, plaintiff then sued the magazine and her ex-husband for failing to obtain her permission to disclose the photograph. The action alleged that the photograph and corresponding caption invaded her privacy.15 The trial court denied the defendant’s motion for summary judgment that had argued that the statute of limitation had run. Defendant appealed, alleging that the statute of limitations should be one year rather than two years.
        • Outcome: The court affirmed the judgment, holding that a two year statute of limitation exists under Ga. Code. Ann. § 9-3-33 for injuries to person.16 Defendant had argued that the one-year statute of limitation for injuries to reputation should apply, but the court found that plaintiffs had pled injury in the form of feelings and mental anguish, which is an injury to the “person” under Georgia law.
    4. Practice Pointers

      • All four forms of the invasion of privacy tort (intrusion, appropriation, publicity, and false light) have been addressed in Georgia’s jurisprudence. The cases provided above demonstrate that common law invasion of privacy claims can be brought under a number of overlapping theories.
      • Georgia does not require physical intrusion into a person’s home or private space to establish a claim of invasion of privacy (surveillance of plaintiff is sufficient).17
      • If the injury occurred more than one year prior to suit, take care in pleading the claimed injuries, as reputational injuries are barred after one year, but mental anguish and the like are not.
    1. Ga. Const. Chap. 1, art. 1. 

    2. See King v. State, 535 S.E.2d 492, 494 (Ga. 2000).  

    3. See Cabaniss v. Hipsley, 151 S.E.2d 496, 506 (Ga. Ct. App. 1990). 

    4. Troncalli v. Jones, 514 S.E.2d 478, 482 (Ga. Ct. App. 1999).  

    5. See Cabaniss v. Hipsley, 151 S.E.2d 496, 501 (Ga. Ct. App. 1990). 

    6. Association v. Smith, 549 S.E.2d 454, 459 (Ga. Ct. App. 2001).  

    7. See Cabaniss v. Hipsley, 151 S.E.2d at 501. 

    8. Id. 

    9. Id. at 505.  

    10. Troncalli v. Jones, 514 S.E.2d at 482. 

    11. Id. 

    12. Id. 

    13. Elmore v. Atlantic Zyre, Inc., 341 S.E.2d at 905. 

    14. Id. at 907.[/fn[

    15. Special Notes: The court emphasized that the right of privacy is qualified and “there are some shocks, inconveniences and annoyances which members of society in the nature of things must absorb without the right of redress.”Id. at 906. 
    16. Hudson v. Montcalm Publishing Corporation, 379 S.E.2d at 572. 

    17. Id. at 576 

    18. Anderson v. Mergenhagen, 642 S.E.2d 105, 109-10 (Ga. Ct. App. 2007). 

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  2. Trover/Conversion

    1. Introduction

      A WMC victim may try to bring a claim of trover to recover money damages or equitable relief if a defendant appropriates the victim’s private photos or images or publishes them for his or her own benefit and refuses to return them to the victim despite his or her requests.1

    2. Elements

      The tort of conversion in Georgia is brought in an action of trover, which has the following elements.

        (1) Plaintiff has title to the property or right of possession;

        (2) Actual possession by the defendant;

        (3) Demand for its return; and

        (4) Defendant’s refusal to return.2

    3. Cases

      Research is ongoing. A search of Georgia law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers and Cases

      • Trover is typically the legal action that is initiated by property owner to recover property that has been converted.
      • In actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property if the defendant is in possession when the action is brought.3
      • Additional information about trover has been established by statute, as set forth in Ga. Code Ann. § 44-12-150 et seq.
      • Georgia also establishes a crime for “theft by conversion,” but this statute relates to property obtained by the defendant legally that is subsequently converted in violation of an agreement or legal obligation.4
    1. In many states, a trespass to chattels claim is a lesser version of a conversion claim. However, there are no Georgia cases mentioning a “trespass to chattels” claim, so it does not seem to be viable in Georgia. There also does not appear to be a viable civil trespass claim. 

    2. Thomas Mote Trucking, Inc. v. PCL Constructors, Inc., 540 S.E.2d 261, 267 (Ga. Ct. App. 2000). 

    3. Ga. Code Ann. § 44-12-150. 

    4. Ga. Code Ann. § 16-8-4. 

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  3. Breach of Contract/Promissory Estoppel

    1. Introduction

      A WMC victim could bring a breach of contract/promissory estoppel claim where the parties have a contract involving consent to use an image of the plaintiff (be it for advertising purposes or otherwise), and the use of the image exceeds the relevant restrictions in the contract.

    2. Elements

        (1) Breach (of a promise);

        (2) Resultant damages;

        (3) To the party who has the right to complain about the contract being broken.1

    3. Cases

      Research is ongoing. A search of Georgia law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Nothing relevant at this time.

    1. Dewrell Sacks, LLP v. Chicago Title Ins. Co., 749 S.E.2d 802, 806 (Ga. Ct. App. 2013).  

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  4. Intentional Infliction of Emotional Distress (“IIED”)

    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) Conduct must be intentional or reckless conduct;

        (2) Conduct must be extreme and outrageous;

        (3) There must be a causal connection between the wrongful conduct and the emotional distress; and

        (4) The emotional distress must be severe.1

    3. Cases

      1. Troncalli v. Jones, 514 S.E.2d 478 (Ga. Ct. App. 1999)
        • Procedural Posture: Appeal from judgment awarding plaintiff damages for stalking, intentional infliction of emotional distress (IIED), invasion of privacy, and other alleged torts.
        • Law: IIED (for stalking and invasion of privacy, see other sections)
        • Facts: Defendant intentionally brushed up and touched victim’s breasts and then followed her in his car, made threatening gestures, put his mouth on her neck, followed her, and came to her house and knocked loudly on her door. The plaintiff brought tort claims for stalking, intentional infliction of emotional distress, and invasion of privacy. The trial court denied the defendant’s motion for directed verdict.2
        • Outcome: For the IIED claim, the court evaluated whether the claim rose to the “requisite level of outrageousness and egregiousness, explaining that if the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resulting severe emotional distress, the jury then must find the facts and make its own determination.3 The court found the evidence was sufficient to survive the motion for directed verdict, because the conduct could reasonably be considered outrageous and extreme, rather than rude or insulting.4
        • Special Notes: Where conduct is simply tasteless and rude, the conduct does not support an IIED claim.5
      2. Wolff v. Middlebrooks, 568 S.E.2d 88 (Ga. Ct. App. 2002)
        • Procedural Posture: Appeal from trial jury’s verdict for employee regarding slander per se and intentional infliction of emotional distress.
        • Law: IIED, slander
        • Facts: Plaintiff, a former employee, brought a slander per se, intentional infliction of emotional distress, and negligent infliction of emotional distress suit related to comments the former employer made during an on-air phone call to a radio show. In the comments, the employer referenced the plaintiff by name and said he was saying he was having a gay affair with the employer. The plaintiff was listening to the program and heard the comments. At trial, the jury returned a verdict in favor of the plaintiff and awarded him $30,000 in damages without specifying whether the verdict was based on slander per se or intentional infliction of emotional distress. The jury also awarded $250,000 in punitive damages, finding a specific intent to cause harm. The defendant moved for a judgment notwithstanding the verdict.
        • Outcome: After finding that the trial court properly permitted the slander per se issue to the jury, the appellate court found there was not sufficient evidence to support an intentional infliction of emotional distress claim. In order for a claim to survive, the conduct must be directed “toward the plaintiff.”6 Here, the comments were made during a radio broadcast to thousands of people and were not made directly to the plaintiff. As such, the trial court erred by failing to grant a directed verdict on this claim.7
        • Special Notes: The court also reversed and remanded the award of punitive damages because it could not be determined if the jury based these damages on slander or IIED.8
      3. Trimble v. Circuit City Stores, Inc., 469 S.E.2d 776 (Ga. Ct. App. 1996)
        • Procedural Posture: Plaintiff appealed dismissal of IIED claim against employer.
        • Law: IIED, harassment
        • Facts: Supervisor of employer defendant repeatedly sexually harassed plaintiff, including unwanted touching, lewd comments and gestures, and unwanted hugs, and rubbing up against the defendant’s body. The supervisor also ridiculed the plaintiff in front of other employees, telling them that the plaintiff did not wear underwear. After the behavior continued, the plaintiff filed sexual harassment charges. On the same day of the charges, the supervisor resigned for undisclosed regions. Afterwards, the plaintiff alleged that the store continued harassing her, including making her work long hours with no days off and refusing to compensate her for overtime. She eventually resigned and the next day fainted and had to be taken to a medical facility, where the doctors determined she suffered from dehydration, stress, and exhaustion.
        • Outcome: The court explained that whether the conduct is sufficiently extreme or outrageous “is a question of law for the trial court” and that factors include 1) the existence of a relationship in which one person has control over another; 2) the actor’s awareness of the victim’s particular susceptibility; and 3) the severity of the resultant harm.9 In this case, the court found that the threshold of egregious conduct was satisfied. Specifically, the conduct occurred in a workplace setting with a captive victim who may fear reprisal for complaining.10
        • Special Notes: The court also noted that the “existence of a special relationship between the actor and victim, such as that of employer to employee, may make otherwise non-egregious conduct outrageous.”11
    4. Practice Pointers

      • As noted in the cases above, merely rude and insulting conduct is not sufficient to support a claim, and the conduct must be directed toward plaintiff.
    1. Phinazee v. Interstate Nationalease, Inc., 514 S.E.2d 843, 844-45 (Ga. Ct. App. 1999). 

    2. Troncalli v. Jones, 514 S.E.2d at 482. 

    3. Id. at 482-83.  

    4. Id. at 483. 

    5. Id. 

    6. Wolff v. Middlebrooks, 568 S.E.2d at 90. 

    7. Id. at 91. 

    8. Id. 

    9. Trimble v. Circuit City Stores, Inc., 469 S.E.2d at 776. 

    10. Id. at 778-79. 

    11. Id. at 778. 

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

    1. Introduction

      Although the nonconsensual online publication of intimate photographs or videos may cause emotional distress, this tort is very limited in Georgia. It is primarily available only where the emotional distress occurred as a result witnessing an extraordinary event that severely injures or kills the plaintiff or a close family member (the so-called “impact rule”).1 However, a limited exception exists when the plaintiff suffers pecuniary loss as a result of non-physical losses, which may include reputational injury.

    2. Elements

      Primarily:

        (1) Physical impact on the plaintiff;

        (2) Physical injury to the plaintiff; and

        (3) The physical injury to the plaintiff causes his or her emotional distress.2

      Exception: Recovery is available without physical injury for pecuniary loss resulting from injury to the person, such as injury to reputation or mental injury.3

    3. Cases

      1. Johnson v. Allen, 613 S.E.2d 657, 663 (Ga. Ct. App. 2005).
        • Procedural Posture: Defendants appealing denial of motions for summary judgment.
        • Law: NIED, IIED, fraud, invasion of privacy
        • Facts: The defendant allegedly installed improper video surveillance of a bathroom stall in a women’s bathroom.4 Over 20 women who used the restroom during this period subsequently filed suit against the company and manager of operations. Plaintiffs alleged that they suffered emotional distress and invasion of privacy.
        • Outcome: The court dismissed of the NIED claim, because the plaintiffs suffered no physical impact.5
      2. Nationwide Mut. Fire Ins. Co. v. Lam, 546 S.E.2d 283 (Ga. Ct. App. 2001).
        • Procedural Posture: Defendants appealing denial of motions for summary judgment.
        • Law: NIED
        • Facts: Plaintiff and her husband were involved in an automobile accident with an uninsured motorist that plaintiff claimed aggravated her mental illness and caused a 10-day hospitalization costing over $12,000. She sued Nationwide because they refused compensation under her uninsured motorist coverage. Nationwide argued that she had no legal claim for NIED in the absence of physical injury.
        • Outcome: The court affirmed the trial court’s denial of summary judgment, holding that plaintiff had suffered a pecuniary loss (hospital costs) as a result of a mental injury to the person sustained in the accident. The court reasoned based on precedent that the pecuniary loss exception, where based on provable losses, was consistent with public policy and outside the requirements of the “impact rule.”
        • Special Notes: The court quotes language in prior opinions indicating that a reputational injury would also be an injury to the person that would support an NIED claim, but does not further explore the issue.
    4. Practice Pointers

      • The impact rule is based on public policy seeking to limit the invention of damages where there was no real injury. Accordingly, a plaintiff proceeding on the theory of reputational damage should take care to plead costs directly related to the tortious conduct and resulting reputational injury.
      • As noted above, the reputational basis for these claims has not yet been explored by Georgia courts. The logic by which courts have included reputational injury (that it is an injury “to the person”) is in tension Georgia statutes of limitations, which distinguish between injuries “to the person” and injuries to reputation, with the former limited to two years and the latter to one.6
    1. E.g., Lee et al. v. State Farm Mut. Ins. Co. et al., 533 S.E. 2d 82 (Ga. 2000). 

    2. Johnson v. Allen, 613 S.E.2d at 663.  

    3. Nationwide Mut. Fire Ins. Co. v. Lam, 546 S.E.2d 283 (Ga. Ct. App. 2001). 

    4. Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 425 A.2d 92, 93 (Vt. 1980). 

    5. Id. at 663. 

    6. See Ga. Code. Ann. § 9-3-33, and Hudson v. Montcalm Publishing Corporation, supra. 

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  6. Prima Facie Tort

    1. Introduction

      A WMC victim will not be able to bring a cause of action for prima facie tort in Georgia because Georgia does not recognize the claim. Instead, it would be advisable for a victim making such allegations to bring an IIED claim.

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  7. 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 have planned or contributed to the posting. For instance, although one person posts an image, another co-conspirator may add sound. In such cases, a plaintiff could attempt to make out a claim of conspiracy in conjunction with its other allegations. A conspiracy in and of itself does not create an independent civil cause of action under Georgia law, rather the “the gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.”1 This action, however, could be helpful in obtaining judgment against more individuals that committed wrongdoing.

    2. Elements

        (1) A common goal or design; and

        (2) Interdependence among two or more persons with mutual understanding that they will accomplish the unlawful design.2

    3. Cases

      Research is ongoing. There are no Georgia cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Anyone who joins a conspiracy after it is formed becomes an equal party as if he or she had been an original member.3

    1. Cook v. Robinson, 116 S.E.2d 742, 744-45 (Ga. 1960). 

    2. See Blackstone Indus., Inc. v. Andrew, 208 S.E.2d 815, 816 (Ga. 1974)(finding that express agreement is not required).  

    3. Id. at 716. 

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