Nevada Common Law

  1. Conversion

    1. Introduction

      A victim may be able to argue that the online publication of private, intimate images constitutes conversion, but this argument expands the traditional view of conversion. A foreseeable issue with this argument is that due to the digital nature of online images, the defendant’s publication of the material would not necessarily interfere with the victim’s possession of it. If the victim is the author of the image(s), however, the harasser would be interfering with the victim’s exclusive copyright rights, thus providing a stronger case for conversion. If a victim is not the author of the images, s/he would have a more compelling conversion claim if a harasser took the images in a way that would restrict the victim’s access to them, for example if a harasser copied the material from a victim’s computer or cell phone and subsequently deleted the material from the computer or cell phone.

    2. Elements of a Claim

      Conversion is defined as ‘a distinct act of dominion wrongfully exerted over another’s personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.’1 In addition, it “is an act of general intent, which does not require wrongful intent and is not excused by care, good faith or lack of knowledge.”2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      It is not clear whether private electronic images would be considered tangible personal property for the purposes of a conversion action; however, the Nevada Supreme Court has recognized that in certain instances, personal property need not be tangible in order to form the basis of a conversion claim. In M.C. Multi-Family Dev., L.L.C., the Court adopted the three-part test set out by the Ninth Circuit in Kremen v. Cohen3 to determine whether intangible property may be the subject of a conversion claim.4 Under the Kremen test, the following three requirements must be met: “(1) there is an interest capable of precise definition, (2) the interest is capable of exclusive possession or control, and (3) the putative owner has established a legitimate claim to exclusivity.”5 In the case of the nonconsensual publication of private, intimate images, it may be difficult for a plaintiff/victim to meet these requirements unless s/he owns the copyright to the images. Owning the copyright to the images provides the plaintiff with the exclusive right to control their distribution. If the plaintiff does not own the copyright to the images, it may be more effective for him/her to pursue a statutory claim, for instance, for computer crime instead of a common law conversion or trespass to chattels claim.6

    1. M.C. Multi-Family Dev. v. Crestdale Assocs., Ltd., 193 P.3d 536 at 542 (Nev. 2008)(emphasis in the original)(citing Evans v. Dean Witter Reynolds, Inc., 5 P.3d 1043 (Nev. 2000)). 

    2. Id. at 1048. 

    3. Kremen v. Cohen, 337 F. 3d 1024 (9th Cir. 2003). 

    4. M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 193 P.3d 536, 543 (Nev. 2008)(At issue was whether a contractor’s license could be converted). 

    5. Id. 

    6. See Nevada - Computer Crime section. 

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  2. Defamation - Libel

    1. Introduction

      A victim whose private, intimate photographs or videos were nonconsensually published online may bring a libel claim against the person who published the material if the publication makes libelous statements about the victim, such as stating that the victim is infected with a sexually transmitted disease, is a sex worker, or acts in pornographic films. Note, that even without a specific statement, the images may constitute libel per se because the images imply a fact that is untrue. For example, a New York trial court found that posting pornographic pictures of a plaintiff linked to plaintiff’s name and photographs on other websites “allegedly falsely impl[ied] that [s]he [was] sexually lustful and promiscuous” and stated a cause of action for libel per se.1

    2. Text of the Statute and Elements of a Claim

      In Nevada, libel is defined as:

      “[A] malicious defamation, expressed by printing, writing, signs, pictures or the like, tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person or persons , or community of persons, or association of persons, and thereby expose them to public hatred, contempt or ridicule.”2

      A libel claim requires the elements for defamation, which consist of:

      “(1) a false and defamatory statement, (2) unprivileged publication to a third person, (3) fault, amounting to at least negligence, and (4) actual or presumed damages.”3

      In cases of defamation per se, however, no proof of damages is required. False statements imputing the following are considered defamatory per se: 1) a crime; 2) a loathsome disease; 3) “a person’s lack of fitness for trade, business, or profession;” and 4) “serious sexual misconduct.”4

      Additionally, “To prevail on a claim of libel, a party must show publication of a false statement of fact, as opposed to opinion.”5 “[I]f a statement could have different meanings, one of which is defamatory, the ambiguity must be resolved by the trier of fact.6

    3. Cases

      1. People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995)(overruled on unrelated grounds by City of Las Vegas Downtown Redev. Agency v. Hecht, 940 P.2d 134, 138 (Nev. 1997)).

        • Procedural Posture: Defendants appealed from a monetary judgment for Plaintiff based on his claims for defamation (and invasion of privacy).

        • Law: Defamation – libel (as well as invasion of privacy – intrusion upon seclusion and appropriation of name or likeness)

        • Relevant Facts: Defendant Gesmundo secretly videotaped Plaintiff abusing his show animals over the course of several days.7 Defendant subsequently showed the video footage to various persons, some of whom commented publicly that Plaintiff beat his animals and abused them.8 Plaintiff maintained “that his actions depicted on the tape were a ‘proper’ and ‘necessary’ manner of treating these animals.”9

        • Outcome: Reversed because Defendants did not issue a false or defamatory statement of Plaintiff and Defendants’ statements constituted mere opinions protected by the First Amendment. In terms of whether Defendants were liable to Plaintiff for defamation “by reason of distributing and showing the [ ] videotape,” the court held that Defendants were not liable since the video itself was not falsified and contained a true depiction of actual events.10

    4. Practice Pointers

      A plaintiff bringing a libel claim must plead with particularity and include both legal authority and factual evidence supporting his/her claims.11

      While the Nevada Supreme Court has yet to address whether the single publication rule applies to libelous statements published on the internet, it will likely follow Ninth Circuit precedent and conclude that the rule should apply to internet postings.12 Under the single publication rule, a cause of action exists per edition of a magazine or newspaper that publishes the defamatory material, rather than per each individual magazine or newspaper distributed.13 In Oja v. U.S. Army Corps of Eng’rs, the Ninth Circuit found that internet postings available to the general public are the “functional equivalent of traditional print media” because “[o]nce information has been published on a website or print media, there is no further act required by the publisher to make the information available to the public.”14 Therefore, a single posting on the internet, although accessible by numerous people at countless points in time, nevertheless constitutes a single publication. Note, however, that the single publication rule does not apply in cases where access to the defamatory information is limited because it is stored in a data bank and only supplied to those specifically requesting the information.15

    1. See Leser v. Penido, 879 N.Y.S.2d 107 (N.Y. Sup. Ct. 2009). 

    2. Nev. Rev. Stat. Ann. § 200.510(1) (LexisNexis 2011). 

    3. Lambey v. State, ex. Rel. Dep’t of Health & Human Servs., 2008 U.S. Dist. LEXIS 51155, *11 (D. Nev. July 3, 2008)(citing Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005)). 

    4. K-Mart Corp. v. Washington, 866 P.2d 274, 282 (Nev. 1993)(overruled on other grounds). 

    5. Wellman v. Fox, 825 P.2d 208 (Nev. 1992). 

    6. Flowers v. Carville, 112 F. Supp. 2d 1202, 1210 (D. Nev. 2000)(citing Posadas v. City of Reno, 851 P.2d 438, 442 (Nev. 1993). 

    7. Id. at 1272. 

    8. Id. at 1274. 

    9. Id. at 1272. 

    10. Id. at 1272 and 1274. 

    11. Wintice Group, Inc. v. Longleg, 2010 U.S. Dist. LEXIS 92261, *19-20 (D. Nev. Sept. 3, 2010). 

    12. See Williams v. Univ. Med. Ctr. Of S. Nev., 2010 U.S. Dist. LEXIS 76995, *10-12 (D. Nev. July 28, 2010). 

    13. Id. at *11. 

    14. Id. at *12-13 (citing Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130-31 (9th Cir. 2006). 

    15. Id. at *15-16 (citing Oja at 1133). 

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  3. Defamation – Slander

    1. Introduction

      A victim may sue the person who nonconsensually published his/her private, intimate images for slander if the images were accompanied by defamatory oral statements. This cause of action would be applicable if the online images were posted along with an oral commentary about the victim. If the statements are not slanderous per se, then the victim must show special damages (for example, the loss of his/her job and wages).

    2. Elements of a Claim

      A claim for slander includes the elements for defamation, which are:

      “(1) a false and defamatory statement, (2) unprivileged publication to a third person, (3) fault, amounting to at least negligence, and (4) actual or presumed damages.”1

      Additionally, the defamatory statement must be made orally.2 Unless the defamatory statement constitutes slander per se, a claim for slander must also show special damages.3 “A statement is slanderous per se if it (1) imputes commission of a crime; (2) injures the plaintiff’s trade, business or office; (3) imputes contraction of a loathsome disease; or (4) imputes unchastity in a woman.”4 In cases involving media defendants and public figures, actual malice must be pleaded and proved.5

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      In Nev. Indep. Broadcasting Corp. v. Allen6, respondent successfully sued appellant for slanderous comments aired over a live television broadcast. It is unclear, however, if this case would apply to the online publication of a video, especially if the video is not a live broadcast.

      Medinah Mining v. Amunategui7 involved alleged slander over the internet but the Complaint was ultimately dismissed for lack of personal jurisdiction and failure to prosecute. The court did not reach the merits of the slander claim.8

    1. Lambey v. State, ex. Rel. Dep’t of Health & Human Servs., 2008 U.S. Dist. LEXIS 51155, *11 (D. Nev. July 3, 2008)(citing Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005)). 

    2. See Williams v. Univ. Med. Ctr. of S. Nev., 688 F. Supp. 2d 1134, 1146 n. 2 (D. Nev. 2010)(citing Bongiovi v. Sullivan, 138 P.3d 433, 448 (Nev. 2006)). 

    3. Branda v. Sanford, 637 P.2d 1223, 1225 (Nev. 1981). 

    4. Id. 

    5. Nev. Indep. Broadcasting Corp. v. Allen, 664 P.2d 337, 344 (Nev. 1983). 

    6. *Nev. Indep. Broadcasting Corp. v. Allen*, 664 P.2d 337 (Nev. 1983) 

    7. Medinah Mining v. Amunategui, 237 F. Sup. 2d 1132 (D. Nev. 2002) 

    8. The Complaint is available for review at http://www.citmedialaw.org/threats/medinah-mining-v-ingram

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  4. Fraud in the Inducement

    1. Introduction

      This claim is particular to situations involving a contract. A victim who received consideration for the creation of sexual photos/videos under a contract that involved a promise of confidentiality or deletion, may have a claim under this cause of action if the material was later published online.

    2. Elements of a Claim

      “Under Nevada law, a claim of fraud in the inducement requires the plaintiff to establish each of the following elements: (1) a false representation; (2) knowledge or belief that the representation was false (or knowledge that the defendant's basis for making the representation was insufficient); (3) intent to induce the plaintiff to consent to the contract's formation; (4) justifiable reliance upon the misrepresentation; and (5) damage resulting from such reliance.”1

    3. Cases

      Research is ongoing

    4. Practice Pointers

      The remedy for this cause of action would be damages under the contract.

    1. Sexton v. Indymac Bank FSB, 2011 U.S. Dist. LEXIS 117182 at *13 (citing J.A. Jones Constr. Co. v. Lehrer McGovern Bovis, Inc., 89 P.3d 1009, 1087 (Nev. 2004). 

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  5. Gross Negligence

    1. Introduction

      A claim for gross negligence would also be applicable in cases involving the breach of duty of care owed to the victim by a third party. In a gross negligence case, the third party would need to know or have reason to know that a high probability exists that his/her conduct will result in substantial harm to the victim/plaintiff. For example, this claim may be appropriate if a school was informed that a student secretly videotaped another student’s sexual encounters but failed to do anything about it, and subsequently, the harasser used a school computer to nonconsensually publish a sex tape involving the victim. Alternatively, the school might have knowledge that a student is harassing another student by publishing sex ads in the other student’s name, but fail to take steps to remedy the situation. The harasser might then use a school computer to publish an online ad in the victim’s name, containing the victim’s intimate images to solicit sexual encounters, resulting in the victim’s rape by a person answering the ad.

    2. Elements of a Claim

      In Nevada, “‘gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a prudent man’…and the difference between ordinary negligence and gross negligence is that they ‘differ in the degree of intention.’”1 “Gross negligence is substantially higher in magnitude than ordinary negligence…and is manifested by the absence of even slight diligence or want of even scant care, or a heedless and palpable violation of legal duty respecting the rights of others.”2 “‘A party is “grossly negligent” if he acts or fails to act when he knows or has reason to know facts which could lead a reasonable person to realize that his conduct not only creates unreasonable risk of bodily harm to others but also involves high probability that substantial harm will result.’”3

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Below are examples of what has been found to constitute gross negligence in Nevada:

      • In Solen v. Va., a case in which Plaintiff was badly injured when the tender of Defendant’s engine knocked him down as he walked along the railroad tracks, the Court found that moving “locomotives or cars through the streets at night, or on dark, stormy and windy days, without giving any signal, would be gross negligence.”4

      • In Reed v. Brackbill, a case involving Plaintiff prisoner with Hepatitis C, prison officials were not found to be grossly negligent for failing to provide Plaintiff with treatment because they regularly monitored his bilirubin levels and it was the opinion of various medical doctors that Plaintiff did not need to be treated.5

      • In Batt v. State, the Court found Defendant was not grossly negligent in an arson case where his girlfriend unilaterally ignited a firework in his presence that subsequently burned down part of a forest.6

    1. Batt v. State, 901 P.2d 664, 667 n.5 (Nev. 1995)(quoting Hart v. Kline, 116 P.2d 672, 674 (Nev. 1941)). 

    2. Id. (citing Town of Big Stone Gap v. Johnson, 35 S.E.2d 71, 73 (Va. 1945)). 

    3. Id. (citing Walls v. Ariz. Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct. App. 1991)). 

    4. Solen v. Va.  & Truckee R.R. Co., 13 Nev. 106, 122 (Nev. 1878)(emphasis in the original). 

    5. Reed v. Brackbill, 2008 U.S. Dist. LEXIS 83245 (D. Nev. July 2, 2008). 

    6. Batt v. State, 901 P.2d 664 (Nev. 1995). 

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  6. Intentional Infliction of Emotional Distress

    1. Introduction

      A victim may sue the person who nonconsensually published his/her private, intimate images for intentional infliction of emotional distress in a situation where the material’s publication caused the victim to suffer severe emotional distress.

    2. Elements of a Claim

      Intentional infliction of emotional distress requires:

      “(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation.”1 “Extreme and outrageous conduct is that which is ‘outside all possible bounds of decency and is regarded as utterly intolerable in a civilized community.’"2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      In cases where no physical impact to the plaintiff occurred, the Court generally requires evidence of physical injury or illness resulting from the alleged emotional distress.3

      Nevada does not recognize outrage as a separate tort.4

    1. Olivero v. Lowe, 995 P.2d 1023, 1026 (Nev. 2000)(citing Star v. Rabello, 625 P.2d 90, 91-92 (Nev. 1981)(citations omitted)). 

    2. Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998). 

    3. Settlemyers v. Play LV Gaming Operations, LLC, 2011 U.S. Dist. LEXIS 28393, *14-15(D. Nev. March 18, 2011)(citing Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998)). 

    4. Blankenship v. Cox, 2007 U.S. Dist. LEXIS 19425, *37 (D. Nev. March 19, 2007). 

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  7. Intentional Interference with Prospective Economic Advantage

    1. Introduction

      A victim may sue a person who published the victim’s private, intimate images without the victim’s consent for intentional interference with prospective economic advantage if the publication of the images resulted in the victim’s loss of employment or interfered with the victim’s ability to earn a living. For example, this tort may apply in a situation where a person purposely sent the images to the victim’s employer with the intention that the victim be fired from his/her job because of the content of the images, and actual harm resulted.

    2. Elements of a Claim

      “In order to prove intentional interference with prospective economic advantage…, the plaintiff must show ‘(1) a prospective contractual relationship between the plaintiff and a third party; (2) knowledge by the defendant of the prospective relationship; (3) intent to harm the plaintiff by preventing the relationship; (4) the absence of privilege or justification by the defendant; and (5) actual harm to the plaintiff as a result of the defendant's conduct.’"1

    3. Cases

      Research is ongoing.

    1. Roche v. Audio Visual Servs. Group, 2011 U.S. Dist. LEXIS 79256, *13-14 (D. Nev. July 20, 2011)(citing Wichinsky v. Mosa, 847 P.2d 727, 729-30 (Nev. 1993)). 

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

    1. Introduction

      A victim of the nonconsensual publication of his/her private, intimate images may bring a suit for invasion of privacy – false light in the public eye against the person who published the images if the material places the victim in a false light (for example a sex tape that falsely presents the victim as a porn star).

    2. Elements of a Claim

      “To plead false light invasion of privacy, a plaintiff must allege: (1) the defendant gave publicity to a matter concerning the plaintiff that placed the plaintiff before the public in a false light; (2) the false light would be highly offensive to a reasonable person; and (3) the defendant had knowledge of, or acted in reckless disregard as to, the falsity of the publicized matter and the false light in which the plaintiff would be placed.”1 Furthermore,”[f]alse light…requires at least an implicit false statement of objective fact.”2 Additionally, a claim for false light requires a showing of actual malice.3

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Unlike in a defamation suit, where the plaintiff must plead injury to his/her reputation to have a viable claim, a claim for false light in Nevada merely requires that the plaintiff suffer emotional harm.4 In People for the Ethical Treatment of Animals v. Berosini, the Court noted the difference between false light and defamation: “The false light privacy action differs from a defamation action in that the injury in privacy actions is a mental distress from having been exposed to public view, while the injury in defamation actions is damage to reputation.”5

      The Fifth Circuit affirmed a false light claim under Texas law in Wood v. Hustler Magazine, Inc. after Hustler magazine published a stolen photo of the plaintiff.6 The false light theory had two components: (1) “[Defendant’s] publication falsely represented that [plaintiff] consented to the submission and publication in a coarse and sex-centered magazine of a photograph depicting her in the nude;” and (2) “[T]he publication falsely attributed a lewd fantasy [being raped by bikers] to [plaintiff].7

      The Sixth Circuit, however, affirmed summary judgment for defendant Hustler Magazine in Ashby v. Hustler Magazine, Inc.8 In Ashby, the plaintiff’s nude photos were stolen and submitted to Hustler Magazine where they were published. The plaintiff sued defendant for false light, but summary judgment was granted because plaintiff did not present evidence of reckless disregard.9

    1. Vail v. Pioneer Mut. Life. Ins. Co., 2010 U.S. Dist. LEXIS 107994, *5-6 (D. Nev. July 20, 2011) Dist. LEXIS 107994, *5-6 (citing Restatement (Second) of Torts § 652E). 

    2. Id. (citing Flowers v. Carville, 310 F.3d 118, 1132 (9th Cir. 2002)). 

    3. Flowers v. Carville, 266 F. Supp. 2d 1245, 1252 (D. Nev. 2003). 

    4. Flowers v. Carville, 310 F.3d 1118, 1132 (9th Cir. 2002). 

    5. People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269, 1273 (Nev. 1995)(overruled on other grounds)(quoting Rinsley v. Brandt, 700 F. 2d 1304, 1307 (10th Cir. 1983)). 

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

    7. Id. at 1089. 

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

    9. Id. 

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  9. Invasion of Privacy – Intrusion

    1. Introduction

      An intrusion claim is particularly appropriate for a victim of the nonconsensual publication of private intimate images if those images were captured without the victim’s knowledge. This claim would be appropriate, for example, in a situation where the victim was secretly filmed in her home.

    2. Elements of a Claim

      “Under Nevada law, to recover for the tort of intrusion, a plaintiff must allege ‘1) an intentional intrusion (physical or otherwise); 2) on the solitude or seclusion of another; 3) that would be highly offensive to a reasonable person.’”1

      The following factors should be considered to determine whether a specific action is “highly offensive”: “the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.”2

    3. Cases

      1. People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995)(overruled on unrelated grounds by City of Las Vegas Downtown Redev. Agency v. Hecht, 940 P.2d 134, 138 (Nev. 1997)).

        • Procedural Posture: Defendants appealed from a monetary judgment for Plaintiff based on his claims for invasion of privacy (and defamation).

        • Law: Invasion of privacy – intrusion upon seclusion (as well as defamation – libel and appropriation of name or likeness)

        • Relevant Facts: Defendant Gesmundo secretly videotaped Plaintiff abusing his show animals over the course of several days.3

        • Outcome: Reversed. The Court found that Defendant’s videotaping of Plaintiff’s interactions with his animals backstage did not constitute an actionable case of intrusion. The Court noted that Plaintiff’s concern was not that others would see him or hear him while he prepared backstage, thus invading his seclusion. In fact, various individuals were able to hear and see into Plaintiff’s ‘private area.’4 Instead, Plaintiff’s main concern was that he be free “from distracting intrusion and interference with his animals and pre-act disciplinary procedures.”5 Thus, Plaintiff did not have a reasonable expectation of privacy in his interactions with the animals backstage. The Court also dealt with the issue of whether Defendant’s camera was highly offensive to a reasonable person, which was a question of first impression in Nevada. After considering the factors listed in Miller v. Nat’l Broad Co. to determine whether Defendant’s camera would be highly offensive to a reasonable person,6 the Court concluded that “[Defendant’s] camera was not ‘highly offensive to a reasonable person’ because of the nonintrusive nature of the taping process, the context in which the taping took place and [Defendant’s] well-intentioned…motive.”7

    4. Practice Pointers

      The Nevada Supreme Court has recognized that being photographed in a public place does not constitute tortious intrusion.8 It is also not intrusion for, “police, acting within their powers, to photograph and fingerprint a suspect.”9

      The following are places that the Nevada Supreme Court has recognized as “traditionally associated with a legitimate expectation of privacy”: a private bedroom, hospital room, restroom, and a “young ladies’ dressing room.”10

    1. Flynn v. Liner, 2011 U.S. Dist. LEXIS 77217, *12-13(D. Nev. July 15, 2011)(quoting People for the Ethical Treatment of Animals v. Berosini, 895 P.2d 1269, 1279 (Nev. 1995)). 

    2. Id. at 1282 (citing Miller v. Nat’l Broad. Co., 232 Cal. Rptr. 668, 678 (Cal. Ct. App. 1986). 

    3. Id. at 1272. By secretly placing a video camera backstage to capture Plaintiff’s interactions with his animals, Plaintiff claims that Defendant “intruded upon his ‘seclusion.’”Id. at 1279. 

    4. Id. at 1280 n.18. 

    5. Id. at 1281. 

    6. Miller v. Nat’l Broadcasting Co., 232 Cal. Rptr. 668, 678 (Cal. Ct. App. 1986). 

    7. Id. at 1283. 

    8. Id. at 1279 (citing Gill v. Hearst Publishing Co., 253 P.2d 441 (Cal. 1953)). 

    9. Id. (citing Norman v. City of Las Vegas, 177 P.2d 442 (Nev. 1947)). 

    10. Id. at 1282. 

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  10. Invasion of Privacy – Public Disclosure of Private Facts

    1. Introduction

      A public disclosure of private facts claim may be useful for virtually any victim of a nonconsensual publication of private, intimate images.

    2. Elements of a Claim

      “‘To maintain a cause of action for public disclosure of private facts one must prove that a public disclosure of private facts has occurred which would be offensive and objectionable to a reasonable person of ordinary sensibilities.’”1

    3. Cases

      Research is ongoing.

    1. State v. 8th J. Dist. Ct., 42 P.3d 233, 240 (Nev. 2002)(quoting Montesano v. Donrey Media Group, 668 P.2d 1081, 1084 (Nev. 1983)). 

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  11. Negligence

    1. Introduction

      A claim of negligence may be useful in cases involving a third party who owed a duty of care to the victim, such as an employer or a school. For example, if the nonconsensually published intimate images were posted from a school or employer’s computer, the suit may include a negligence claim against the school or employer.

    2. Elements of a Claim

      “To prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.”1

    3. Cases

      Research is ongoing.

    1. Klasch v. Walgreen Co., 2011 Nev. LEXIS 93, *9 (Nev. Nov. 23, 2011)(citing Sanchez v. Wal-Mart Stores, 221 P.3d 1276, 1280 (Nev. 2009)). 

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  12. Promissory Estoppel

    1. Introduction

      A promissory estoppel claim is similar to a claim of fraud in the inducement. A promissory estoppel claim, however, does not require justifiable reliance on the misrepresentation, but instead only requires “that the party asserting estoppel be ignorant of the true state of facts.”1 This claim is useful to victims who relied on a promise that their sexual photos/videos would be kept private or deleted.

    2. Elements of a Claim

      “’To establish promissory estoppel four elements must exist: (1) the party to be estopped must be apprised of the true facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel has the right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; (4) he must have relied to his detriment on the conduct of the party to be estopped.’”2

    3. Cases

      Research is ongoing.

    1. Pink v. Busch, 691 P.2d 456, 459 (Nev. 1984)(quoting Cheqer, Inc. v. Painters & Decorators Joint Comm., 655 P.2d 996, 998-999 (Nev. 1982)). 

    2. Id. at 456, 459-60. 

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  13. Trespass (Real Property)

    1. Introduction

      A claim for trespass would be applicable if the person who posted the victim’s private, intimate images without the victim’s consent, obtained the material by trespassing into the victim’s home or onto victim’s private property.

    2. Elements of a Claim

      “’To sustain a trespass action, a property right must be shown to have been invaded.’"1

    3. Cases

      Research is ongoing.

    1. Dayton Valley Investors, LLC v. Union Pac. R.R. Co., 664 F. Supp. 2d 1174, 1190 (D. Nev. 2009)(quoting Lied v. Clark County, 579 P.2d 171, 173-74 (Nev. 1978)). 

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  14. Trespass to Chattels

    1. Introduction

      A claim for trespass to chattels may be applicable if the person who nonconsensually posted the victim’s private, intimate images obtained the material by trespassing into the victim’s personal property (such as the victim’s computer or cell phone).

    2. Elements of a Claim

      “Trespass to chattels occurs when a person intentionally uses or intermeddles with a chattel in possession of another. A person will be liable to the possessor of the chattel only if: ‘(a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to some person or thing in which the possessor has a legally protected interest.’”1

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      While a Nevada district court has recognized the illegal downloading of software as an actionable trespass to chattels, it is not clear whether trespass to chattels would also apply to the taking or use of a plaintiff’s personal computer data. In Oracle v. Rimini St., Inc., Plaintiffs sued Defendants for trespass to chattels for “illegally download[ing] [Plaintiff’s] software and support materials.”2 The court found that “Plaintiffs…sufficiently asserted a cause of action for trespass to chattels because they alleged facts indicating that Defendants’ conduct, including use of search crawlers, impaired the ability of [Plaintiff] Oracle America’s network systems and information databases to function properly.”3

      As in the case of conversion, the tangibility of electronically stored images may also be an issue in a trespass to chattels action. For a further discussion on tangibility as it relates to conversion and trespass to chattels, see the “Practice Pointers” section under Nevada – Conversion.

    1. Oracle USA, Inc. v. Rimini St., Inc., 2010 U.S. Dist. LEXIS 84254, (D. Nev. Aug. 13, 2010)(quoting Restatement (Second) of Torts §218). 

    2. Id. at *4. 

    3. Id. at *16. 

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