Texas Common Law

  1. Break of Contract

    1. Introduction

      A WMC victim could bring a breach of contract claim where the parties have a contract involving consent to use an image of the plaintiff (be it for advertising purposes or otherwise). However, in such instances, there will also likely be a signed release in place to bar the victim’s claims. Thus, it is unlikely that a WMC victim will bring either a breach of contract claim.

    2. Elements
      1. Existence of a valid contract;
      2. Performance or tendered performance by the plaintiff;
      3. Breach of the contract by the defendant; and
      4. Damages sustained by the plaintiff as a result of the breach.1
    3. Cases
      1. Walls v. Klein, No. 04-12-00615-CV, 2013 WL 988179 (Tex. Ct. App. Mar. 13, 2013)
        • Procedural Posture: Accelerated interlocutory appeal of a temporary injunction granted in favor of defendant.
        • Law: Breach of contract; defamation
        • Facts: The parties were in a romantic relationship. After their relationship ended, they began fighting, and eventually, plaintiff’s attorney sent a letter to defendant’s attorney threatening to file suit for damages against him for claims including intentional infliction of emotional distress, fraud, assault, and defamation. The parties subsequently entered into an agreement and settled their disputes, and plaintiff agreed, amongst other things, to release all claims against defendant in exchange for $30,000. The Settlement Agreement and Full and Final Release included a confidentiality and “non-disparagement” clause, stating: “The parties agree and acknowledge that they will not disparage one another. The parties will have no further contact with each other in any form, their respective family members and close friends relating in any way to the Claims or the matters alleged in the Claims Letter.”2 The agreement also included a clause stating “contractual agreement” providing that if the a claim for specific enforcement in a court of law.3 Shortly after the agreement was signed, plaintiff moved for injunctive relief against defendant, alleging that he continued to “stalk, harass, and humiliate her” in violation of the clauses in the agreement. Defendant counterclaimed, seeking his own TRO and asserting breach of contract, invasion of privacy and defamation claims.4 Among other things, defendant claimed that plaintiff was needlessly threatening him over email, and posting negative remarks on her Facebook page that she thought would publicly disparage him by launching a website containing photos she’d taken of him during their relationship. The trial court had denied Walls’ application for an injunction, and granted Klein’s. Walls appealed on an accelerated basis.
        • Outcome: The court held that the TRO “did not constitute a prior restraint on Walls; (2) the TRO was the proper means of maintaining the status quo pending trial, and (3) the trial court did not abuse its discretion in granting the temporary injunction.”5
        • Special Notes: Among other things, defendant alleged that Walls intended to post a website with pictures of him discussing how he was a narcissistic, sex-and-drug-crazed prostitute.6
    4. Practice Pointers

      Where the parties sign a contractual agreement not to defame one another, the court forced them to abide by the terms to which they had agreed.7


    1. Hussong v. Schwan’s Sales Enter., Inc., 896 S.W.2d 320, 326 (Tex. Ct. App. 1995). 

    2. Walls, 2013 WL 988179, at *1. 

    3. Id

    4. Id. at *2. 

    5. Id. at *6. 

    6. Id. at *4. 

    7. Id. at *5-6 (finding that a temporary injunction was the “proper means” to maintain the status quo while enforcing the parties’contractual settlement agreement). 

    ↑ Back to top
  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 actually posts an image, several other individuals may make comments or take actions that intensify the situation. For instance, another co-conspirator who did not post the original image may add sound. In such instances, a WMC victim could try to include a claim of civil conspiracy with his or her other allegations.

    2. Elements
      1. Two or more persons;
      2. An object to be accomplished;
      3. A meeting of the minds on the object or course of action;
      4. One or more unlawful, overt acts; and
      5. Damages as a proximate result.1
    3. Cases
      1. Toups v. GoDaddy.com, No. D-130018-C (Orange County Tex. 2013)
        • Procedural Posture: Plaintiff brought suit against defendants GoDaddy.com, revenge porn site Texxxan.com, and individuals associated with the website, and the litigation is currently ongoing.
        • Law: Invasion of privacy (intrusion; disclosure of private facts; misappropriation; false light); gross negligence; IIED; civil conspiracy
        • Facts: On January 23, 2013, Plaintiff, Holly Toups and 23 other women brought a putative class action suit against GoDaddy.com, revenge porn site Texxxan.com, and various individuals affiliated with the site. Plaintiffs alleged that Texxxan.com hosted intimate photos of women living in Texas submitted without their consent, and that GoDaddy.com was complicit in the web-site’s actions, and allowed the site’s administrators to post the improper content online. GoDaddy moved to dismiss under Section 230 of the Federal Communications Decency Act (“CDA”), which provides immunity for ISPs and companies that host web content created by a third party. Texxxan.com moved to dismiss plaintiff’s motion for a temporary or permanent injunction. The plaintiffs seek actual money damages, including for severe mental anguish and emotional distress, humiliation, fear, and other non-economic and economic damages. They also seek punitive damages for what they allege was “extreme and malicious conduct” on the part of the defendants.
        • Outcome: The suit is ongoing. However, on April 17, 2013, the judge granted the permanent injunction shutting down Texxxan.com, and denied GoDaddy’s motion to dismiss. GoDaddy subsequently moved for interlocutory review of whether it has immunity under the CDA, and the issue is under consideration.
        • Special Notes: Several articles about the ongoing suit are available online.2
    4. Practice Pointers
      • The issue of whether an ISP such as GoDaddy.com that sells domain names and registrations to defendants such as Texxxan.com can be held liable as a co-conspirator is currently before a Texas state court in Toups v. GoDaddy.3
      • However, until the issue is resolved, plaintiffs bringing such claims should not hesitate to try to assert a conspiracy claim involving both parties, especially where there is evidence that the ISP in question did not prohibit the website from committing various torts (including but not limited to invasion of privacy) against the plaintiff class.

    1. Tri v. JTT, 162 S.W.3d 552, 556-57 (Tex. 2005). 

    2. See articles regarding ongoing lawsuit at supra note 20. 

    3. No. D-130018-C (Orange County Tex. 2013). 

    ↑ Back to top
  3. Conversion

    1. Introduction

      A WMC victim could try to bring a conversion claim in an effort 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.

    2. Elements

      Unauthorized and unlawful assumption and exercise of dominion and control over the personal property of another, which is to the exclusion of, or inconsistent with, the owner’s rights.[FOOTNOTE]

    3. Cases

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

    4. Practice Pointers
      • Plaintiff must prove that at the time of the conversion, he owned the property, and either had legal possession of it or was entitled to possession.1
      • Usually, a plaintiff must show that he demanded return of the property, and defendant refused to return it.2 However, this is unnecessary when the possessor’s act manifests a clear repudiation of the plaintiff’s rights.3
      • Texas has “never recognized a cause of action for conversion of intangible property except in cases where the underlying intangible right has been merged into a document and that document has been converted.”4

    1. Lone Star Beer, Inc. v. Republic Nat’l Bank of Dallas, 508 S.W.2d 686, 687 (Tex. Ct. App. 1974). 

    2. Hull v. Freedman, 383 S.W.2d 236, 238 (Tex. Ct. App. 1964). 

    3. Loomis v. Sharp, 519 S.W.2d 955, 958 (Tex. Ct. App. 1975). 

    4. Express One Int’l, Inc., 53 S.W.3d at 901 (determining that plaintiff failed to show that defendant converted any information by posting using the screen name “ExpresONE” on the internet, and refusing to allow plaintiffs to recharacterize a trademark infringement claim as a claim for conversion). 

    ↑ Back to top
  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. The defendant published a statement of fact;
      2. The statement was defamatory;
      3. The statement was false;
      4. The defendant acted negligently in publishing the false and defamatory statement; and
      5. The plaintiff suffered damages as a result.1
    3. Cases
      1. Walls v. Klein, No. 04-12-00615-CV, 2013 WL 988179 (Tex. Ct. App. Mar. 13, 2013)
        • Procedural Posture: Accelerated interlocutory appeal of a temporary injunction granted in favor of defendant.
        • Law: Breach of contract; defamation
        • Facts: The parties were in a romantic relationship. After their relationship ended, they began fighting, and eventually, plaintiff’s attorney sent a letter to defendant’s attorney threatening to file suit for damages against him for claims including intentional infliction of emotional distress, fraud, assault, and defamation. The parties subsequently entered into an agreement and settled their disputes, and plaintiff agreed, amongst other things, to release all claims against defendant in exchange for $30,000. The Settlement Agreement and Full and Final Release included a confidentiality and “non-disparagement” clause, stating: “The parties agree and acknowledge that they will not disparage one another. The parties will have no further contact with each other in any form, their respective family members and close friends relating in any way to the Claims or the matters alleged in the Claims Letter.”2 The agreement also included a clause stating “contractual agreement” providing that if the parties had a dispute about the agreement, the dispute would be enforceable through a claim for specific enforcement in a court of law.3 Shortly after the agreement was signed, plaintiff moved for injunctive relief against defendant, alleging that he continued to “stalk, harass, and humiliate her” in violation of the clauses in the agreement. Defendant counterclaimed, seeking his own TRO and asserting breach of contract, invasion of privacy and defamation claims.4 Among other things, defendant claimed that plaintiff was needlessly threatening him over email, and posting negative remarks on her Facebook page that she thought would publicly disparage him by launching a website containing photos of him she’d taken during their relationship. The trial court had denied Walls’s application for an injunction, and granted Klein’s. Walls appealed on an accelerated basis.
        • Outcome: The court held that the TRO “did not constitute a prior restraint on Walls; (2) the TRO was the proper means of maintaining the status quo pending trial, and (3) the trial court did not abuse its discretion in granting the temporary injunction.”5
        • Special Notes: Among other things, defendant alleged that Walls intended to post a website with pictures of him discussing how he was a narcissistic, sex-and-drug-crazed prostitute.6
    4. Practice Pointers

      The court upheld the injunction preventing the plaintiff from “publishing or attempting to publish on any website, including but not limited to Facebook, any fictional narrative concerning or based, in whole or in part, on [defendant] without his written consent, or without leave of court,” including the publication of photographs, etc.7


    1. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). 

    2. Walls v. Klein, No. 04-12-00615-CV, 2013 WL 988179, at *1 (Tex. Ct. App. Mar. 13, 2013). 

    3. Id

    4. Id. at *2. 

    5. Id. at *6. 

    6. Id. at *4. 

    7. Id. at *2. 

    ↑ Back to top
  5. Intentional Infliction of Emotional Distress

    1. Introduction

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

    2. Elements
      1. Defendant acted intentionally or recklessly;
      2. Defendant’s conduct was “extreme and outrageous”;
      3. The actions of the defendant caused the plaintiff emotional distress; and
      4. The resulting emotional distress was severe.1
    3. Cases
      1. Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993)
        • Procedural Posture: Appeal to consider whether a claim of IIED can be brought in the context of a divorce proceeding.
        • Law: IIED; NIED; divorce
        • Facts: Plaintiff Mrs. Twyman filed suit for divorce and for NIED, alleging that her ex-husband had intentionally and cruelly attempted to engage her in “deviate sexual acts.” Following a bench trial, the court rendered judgment dissolving the marriage, dividing the marital estate, awarding conservatorship of the children to the plaintiff, ordering the defendant to pay child support, and awarding the plaintiff $15,000 plus interest for her claim of emotional distress. Defendant appealed the portion of the judgment based on emotional distress, claiming that interspousal tort immunity precluded his wife’s recovery for NIED. The court of appeals affirmed, holding that plaintiff could recover for her ex-husband’s NIED. While the case was pending, the Texas Supreme Court refused to adopt the tort of NIED.2 Accordingly, the court could not affirm. However, the court then considered affirmance on alternative grounds, querying whether plaintiff’s allegation of a general claim for emotional harm was broad enough to encompass a claim for IIED, and whether the trial court’s judgment may be sustained on that legal theory.
        • Outcome: The court adopted the tort of IIED, and held that such a cause of action may be brought in the context of a divorce proceeding.3 The court noted however, that in this case, plaintiff could not recover based on the findings of fact made by the trial court given that she had pled NIED. Accordingly, the court reversed the court of appeals’ decision and remanded for a new trial based on its determination.4
        • Special Notes: The court noted that “[w]hen a tort action is tried with the divorce. . . it is imperative that the court avoid awarding a double recovery. . . [A] spouse should not be allowed to recover tort damages and a disproportionate division of the community estate based on the same conduct. . . the fact finder should consider the damages awarded in the tort action when dividing the parties’ property.”5 One justice issued a separate opinion concurring and dissenting in part, opining that he did not believe that the Court should extend the tort of IIED to divorce because “[o]f all the courts which have endorsed the general proposition [that some IIED should be actionable], only two have ever applied it to allow an action for intentional or reckless infliction of emotional distress between spouses, and two have refused to do so. To the extent we should be guided by the decisions of other courts, they counsel against the Court’s holding in this case. . . A new cause of action . . . should not be adopted simply because it is not as ill advised as other actions which can be imagined.”6
      2. Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307 (Tex. Ct. App. 2001)
        • Procedural Posture: Defendants appealed from the lower court judgment in favor of plaintiff on her claim of intentional infliction of emotional distress (“IIED”), and the trial court’s denial of defendants’ motion for directed verdict
        • Law: IIED
        • Facts: Plaintiff Chason was the subject of racy photographs her husband had taken using a city-owned digital camera. In some of the photos she was wearing lingerie, and in one photo she was topless, though you could not see her face. Chason’s husband was participating in a three-day hearing held at the town’s public library to appeal his termination by the City. One of the subjects that arose at the hearing was her husband’s use of the City’s digital camera to take deeply personal provocative photographs of his wife. Defendant Springer represented the City, and she enlarged one of the photographs of Chason to poster size to use during the administrative hearing. Chason testified that at the end of the day, after using the poster at the hearing, Springer intentionally taunted her with the uncovered photograph and caused her emotional distress. She also testified that Springer had humiliated and degraded her by joking about the photographs of Chason with a local newspaper reporter in front of Chason. The jury found for Chason, and granted her damages. Defendant appealed, claiming that the facts alleged did not amount to an IIED claim.
        • Outcome: The court reversed and held that the trial court should have granted defendants’ motion for directed verdict because the conduct at issue did not rise to the level of extreme and outrageous conduct necessary to satisfy this required element of the tort of IIED. The court explained that although the defendants’ actions were hurtful and embarrassing, “[t]he case. . .[did] not contain the sort of flagrant or heinous facts, as described above, that led the various courts to determine the defendants there involved had indeed engaged in extreme and outrageous conduct. Springer made no indecent propositions to Chason. Springer did not engage in vulgar or obscene behavior. Springer did not attempt to deceive Chason in order to further a personal interest. Other than perhaps some temporary mental anguish, Springer’s acts carried no logically foreseeable negative consequences.”7
        • Special Notes: “[T]he fact that an act has the effect of causing one to experience emotional distress, does not in and of itself, compel a court finding that the act itself was extreme and outrageous.”8
      3. Toups v. GoDaddy.com, No. D-130018-C (Orange County Tex. 2013)
        • Procedural Posture: Plaintiff brought suit against defendants GoDaddy.com, revenge porn site Texxxan.com, and individuals associated with the website, and the litigation is moving forward in a Texas state court.
        • Law: Invasion of privacy (intrusion; disclosure of private facts; misappropriation; false light); gross negligence; IIED; civil conspiracy
        • Facts: On January 23, 2013, Plaintiff, Holly Toups and 23 other similarly situated women brought a putative class action suit against GoDaddy.com, revenge porn site Texxxan.com, and various individuals affiliated with the site. Plaintiffs alleged that Texxxan.com hosted intimate photos of women living in Texas submitted without their consent, and that GoDaddy.com was complicit in the web-site’s actions, and allowed the site’s administrators to post the improper content online. GoDaddy moved to dismiss under Section 230 of the Federal Communications Decency Act (“CDA”), which provides immunity for ISPs and companies that host web content created by a third party. Texxxan.com moved to dismiss plaintiff’s motion for a temporary or permanent injunction. The plaintiffs seek actual money damages, including for severe mental anguish and emotional distress, humiliation, fear, and other non-economic and economic damages. They also seek punitive damages for what they allege was “extreme and malicious conduct” on the part of the defendants.
        • Outcome: The suit is ongoing. However, on April 17, 2013, the judge granted the permanent injunction shutting down Texxxan.com, and denied GoDaddy’s motion to dismiss. GoDaddy subsequently moved for interlocutory review of whether it has immunity under the CDA, and the issue is under consideration.
        • Special Notes: Several articles about the ongoing suit are available online.9 Notably, although the Texas Supreme Court has held that it will not observe a claim of false light invasion of privacy, plaintiffs still brought a false light claim along with their three other categories of invasion of privacy claims. Plaintiff Holly Toups has also recently started a campaign to criminalize revenge porn in Texas.10
    4. Practice Pointers

    • Texas courts have adopted the elements of IIED set forth in the Restatement (Second) of Torts § 46 (1965).11

    • Based on the Restatement’s structure, Section 46 is intended to provide redress only when the tortfeasor desired or anticipated that the plaintiff would suffer severe emotional distress.12

    • To the extent an IIED claim is brought in the context of a divorce, the Texas Supreme Court has held that it is imperative that the factfinder parties had a dispute about the agreement, the dispute would be enforceable through does not award the victim of tortious conduct double recovery.13


    1. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). 

    2. Id. at 621 (citing Boyles II, 855 S.W.2d at 560 (rejecting the tort of negligent infliction of emotional distress)). 

    3. Id. at 624. 

    4. Id. (“[T]his court has broad discretion to remand for a new trial in the interest of justice when it appears that a case proceeded under thewrong legal theory, and when it appears that the facts when developed on retrial may support recovery on alternative theory. When as here, a party presentsher case in reliance on precedent that has been recently overruled, remand is appropriate.”). 

    5. Id. at 625. 

    6. Id. at 629 (Phillips, J., concurring in part and dissenting in part). 

    7. Haynes & Boon, L.L.P. v. Chason, 81 S.W.3d 307, 314 (Tex. Ct. App. 2001). 

    8. Id. at 311. 

    9. See online articles regarding ongoing lawsuit at supra note 20. 

    10. See “Army of She” homepage at supra note 21. 

    11. Twyman, 855 S.W.2d at 621-22 (“Today we become the forty-seventh state to adopt the tort of intentional infliction of emotional distress as setout in § 46(1) of the RESTATEMENT (SECOND) OF TORTS.”). 

    12. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. b (1965) (“[T]he law has been slow to afford independent protection to the interest in freedom fromemotional distress standing alone”); see also § 47 cmt. a (section 46 recovery is not available if an actor intends to cause some other harm or if hisconduct poses a risk of harm other than emotional distress.”). 

    13. Twyman, 855 S.W.2d at 625. 

    ↑ Back to top
  6. Invasion of Privacy (General)

    1. Introduction

      Texas observes three types of invasion of privacy claims: (1) misappropriation—the right to be free from the unwarranted appropriation or exploitation of one’s personality; (2) unlawful publicity—the publicizing of one’s private affairs with which the public has no legitimate concern; and (3) intrusion on seclusion—the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.1 Notably, Texas has expressly refused to adopt a claim for false light of invasion of privacy, finding that it “substantially duplicates the tort of defamation while lacking many of its procedural limitations.”2

      The Texas Supreme Court has observed that “[t]he right to privacy is a right distinctive in itself, and not incidental to some other recognized right for breach of which an action for damages will lie.”3 Accordingly, a WMC victim could potentially bring any one of these three claims for relief to seek money damages or an injunction against a defendant.

    2. Elements
      1. Misappropriation
        1. Defendant appropriated the plaintiff’s name or likeness for the value associated with it;
        2. Plaintiff can be identified from the publication; and
        3. There was some advantage or benefit to the defendant.4
      2. Public Disclosure of Private Facts (Unlawful Publicity)
        1. Defendant publicizes matters concerning a plaintiff’s personal life;
        2. The matters publicized would be highly offensive to a reasonable person of ordinary sensibilities; and
        3. The matter publicized is not of legitimate public concern.5
      3. Intrusion on Seclusion
        1. Intentional intrusion;
        2. Upon the solitude of another or his private affairs;
        3. Which is highly offensive to a reasonable person; and
        4. The intrusion is unjustified, unreasonable and/or unwarranted.6
    3. Cases
      1. Wood v. Hustler, Inc., 736 F.2d 1084 (5th Cir. 1984)7
        • Procedural Posture: On appeal following district court’s $150,000 damage award in favor of plaintiff on her claim for false light invasion of privacy
        • Law: Invasion of privacy (false light)
        • Facts: Plaintiff LaJuan Wood brought an action against Hustler magazine when her nude photograph was published without her consent in the “Beaver Hunt” section of the magazine reserved for photographs submitted by readers and non-professional female “models” looking to be featured in the magazine. The record disclosed that Wood’s neighbors broke into her home and stole a nude photograph of her that was hidden in her dresser drawer. The neighbors then completed a false Hustler consent form, correctly stating Wood’s first and last name and accurately reporting her hobby of collecting arrowheads, but falsely stating her age and address, and also falsely attributing to her the fantasy of being “tied down and screwed by two bikers.” 8 The consent form did not list a telephone number and requested that the $50.00 check for the submission be drafted in favor of Wood’s neighbor, but mailed to Wood’s purported address. The district court ruled in favor of plaintiff, and the defendants appealed.
        • Outcome: The Fifth Circuit held that a negligence standard of liability governed a false light invasion of privacy claim under Texas law and affirmed the district court’s judgment, finding that Hustler employees had reasonable cause to believe that the consent form had been forged and that Hustler’s verification procedures were flawed because they failed to provide adequate safeguards to prevent the publication of a stolen photograph.
        • Special Notes: The court noted that the prurient nature of the material made it even more important that Hustler put proper mechanisms in place to verify the submissions: “The nature of the material published in the Beaver Hunt section would obviously warn a reasonably prudent editor or publisher of the potential for defamation or privacy invasion if a consent form was forged. The wanton and debauched sexual fantasies and the intimate photos of nude models were of such a nature that great care was required in verifying a model’s consent.”9
      2. Braun v. Flynt, 726 F.2d 245 (5th Cir. 1984)
        • Procedural Posture: Defendant appealed from jury award of damages to plaintiff on her claims for defamation and invasion of privacy.
        • Law: Invasion of privacy (false light);10 defamation
        • Facts: Plaintiff Jeannie Braun, was employed at the Aquarena Springs amusement park, and her job included requiring her to work in a novelty act with “Ralph, the Diving Pig,” in which she was treading water in a pool, and would hold out a bottle of milk for Ralph, who would dive into the pool and feed from the bottle. Pictures and postcards were made of Ralph and the act, showing Ralph executing his jump, and plaintiff had signed a release authorizing Aquarena Spring to use the picture. In May 1977, an editor of Chic Thrills magazine who had visited the park wanted to include Ralph in an issue. He called Aquarena’s public relations director and sought her consent to obtain transparencies or negatives of Ralph. When asked about Chic Thrill’s content, he explained that Chic Thrills was a men’s magazine but intentionally did not disclose the fact that it contained significant nudity. When the magazine released the issue with the photo of plaintiff and Ralph, it was on the same page as “10 Things that P Off Women,” with an accompanying cartoon of a woman whose large breasts are partially exposed; a story called “Mammaries Are Made of This” about men whose breasts have been enlarged by exposure to a synthetic hormone; and other sexually explicit stores. Plaintiff learned of her inclusion in the magazine when she stopped in a drive-in grocery store near her hometown, and a stranger alerted her to the spread. She later sued defendant Larry Flynt (the publisher of Chic Thrills), asserting that she was very embarrassed and humiliated. The jury returned damages for defamation of $5,000 actual and $25,000 punitive and damages for invasion of privacy of $15,000 actual and $50,000 punitive for a total of $95,000. Defendant appealed, asserting, among other things, First Amendment protection for the publication, and claiming that plaintiff was doubly compensated for her alleged injuries.
        • Outcome: The court vacated and remanded holding that there could be no duplicative damage awards arising from a single publication merely because that publication yields causes of action under state law for both defamation and invasion of privacy.11
        • Special Notes: Nothing relevant.
      3. Boyles v. Kerr (“Boyles I”), 806 S.W.2d 255 (Tex. Ct. App. 1991)
        • Procedural Posture: Boyles appealed from a judgment rendered against him and three co-defendants (his friends) for $1,000,000 in favor of appellee Susan Kerr based on her claims of mental pain and anguish arising from defendants’ tortious acts, future mental pain and anguish, and punitive damages.
        • Law: Negligent and intentional invasion of privacy (intrusion)
        • Facts: Boyles, a 17 year-old boy, and Kerr, a 19 year-old woman, had a number of brief sexual encounters. At one point, Boyles consented to letting his three friends, co-defendants, set up a hidden camera in the location where Boyles planned to meet Kerr to engage in sexual intercourse. A videotape was made of Boyles’ and Kerr’s sexual encounter. Boyles obtained the video shortly after it was made and showed it on three different occasions in private residences to about ten people. Kerr testified that there was considerable gossip about the tape circulating around the Southwest Texas State University campus where she attended school, as well as the University of Texas campus, where Boyles was a student. She also testified that the gossip had spread to her friends at other college campuses. In December of that year, she demanded that Boyles give her the tape, and he complied. However, Kerr testified that she had suffered severe emotional distress and embarrassment from the events, and that defendants’ negligence had caused her to suffer mental anguish. The jury returned a verdict in her favor, determining that the defendants’ negligence had proximately caused Kerr to suffer mental anguish, and that each defendant was jointly and severally liable. Defendants appealed claiming that the cause of action for negligent invasion of privacy does not exist.
        • Outcome: The court affirmed and found that there was sufficient evidence to support the judgment because Boyles and his codefendants had set out to videotape the sexual act, even if there was no evidence that they had intentionally wanted to injure Kerr. The court also held that negligent infliction of emotional distress should lie because the codefendants had a “legal duty not to engage in conduct which would result in foreseeable damages to Kerr,” and they should have foreseen “the likelihood that emotional injury to Kerr would result from [their] acts.”12
        • Special Notes: The Texas Supreme Court reversed and remanded Boyles I_13 in _Boyles v. Kerr (“Boyles II”), in which the Court held that Texas would not recognize a general negligent infliction of emotional distress (“NIED”) claim.14 Accordingly, under Texas law as it currently stands, a plaintiff would not succeed on a general claim of NIED.
      4. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex. Ct. App. 1991)
        • Procedural Posture: Plaintiff Larry McNamara appealed decision granting summary judgment to defendant Freedom Newspapers on plaintiff’s claims of invasion of privacy and negligent infliction of emotional distress
        • Law: Invasion of privacy (unlawful publicity); negligent infliction of emotional distress
        • Facts: Defendant Freedom Newspapers published a photograph depicting the plaintiff and another student from an opposing school running in full stride during a soccer game. The photograph, which was published alongside an article reporting on the game, showed plaintiff’s genitalia, which were accidentally exposed when the photograph was taken. Plaintiff McNamara sued for damages arising out of allegations of invasion of privacy and emotional distress, and the court dismissed.
        • Outcome: The court affirmed the lower court’s judgment because “the published photograph accurately depicts a public, newsworthy event,” the First Amendment provided the newspaper with immunity from liability for damages resulting from its publication of the photograph. The court rejected plaintiff’s argument that the newspaper could have used one of it numerous other photographs of the game instead, noting that “[t]he mere existence of an alternative means of expression, cannot by itself justify a restraint on some particular means that the speaker finds more effective.”15
        • Special Notes: Nothing relevant.
      5. Topheavy Studios, Inc. v. Doe, No. 03-05-00022-CV, 2005 WL 1940159 (Tex. Ct. App. Aug. 11, 2005)
        • Procedural Posture: Topheavy Studios (“Topheavy”) sought an accelerated appeal of the lower court’s decision to temporarily enjoin it from continuing to manufacture and distribute a specific video game until the court had issued its final decision on the merits, and to overturn the decision granting plaintiff the right to proceed under the pseudonym Jane Doe
        • Law: Invasion of privacy (misappropriation); pseudonym litigation
        • Facts: Jane Doe and two of her friends were in South Padre Island for spring break, and Doe was 17 years old at the time. Doe admitted that while she was on the island, she illegally drank alcohol, and used a fake California identification card falsely stating that she was 21. Topheavy was on the island to gather footage of young women to use in a forthcoming video game entitled “The Guy Game,” a trivia contest that rewarded players for correct responses by showing them images of topless women. Topheavy set up a stage to film on a public street next to a popular local bar. It planned to approach young women and offer them a chance to win a small amount of money to agree to participate in the filming, asking each woman who agree to participate to display identification proving she was at least 18 years old, sign a model release, and fill out a questionnaire. Doe agreed to be a contestant, and she signed the release with the false name that appeared on her identification card and filled out the questionnaire with a fictitious address. The release contained “scratch-outs” where Doe had originally begun writing her actual identification information. Topheavy allowed Doe to participate in the contest, and while on stage, she exposed her breasts to the crowd at least three times and was awarded $20 in prize money. The Guy Game was released for sale in August 2004, and shortly after its release, Doe’s brother informed her that the game included multiple images of her exposing her breasts, and that her likeness was being used to market the game online. She sued Topheavy for invasion of privacy based on misappropriation and unlawful publicity, negligence, IIED, unjust enrichment and civil conspiracy. In December 2004, she requested a temporary restraining order to prevent any further distribution of the game during the pendency of the suit, and she requested to proceed under a pseudonym. The court ruled in her favor on both issues. Topheavy appealed seeking dissolution of the TRO and review of the ruling regarding proceeding under a pseudonym.
        • Outcome: The court found that the lower court had not abused its discretion and affirmed the TRO and the ruling on the pseudonym. First, although Doe had signed a consent form and misrepresented her age, there was a question as to whether Topheavy had justifiably relied on Doe’s misrepresentation, and whether it had exercised reasonable diligence in verifying Doe’s information. Given the remaining questions of fact, the court had not abused its discretion.16 Moreover, the court found that the district court properly determined that Doe had a probable right of relief on her privacy claim even though she was filmed in a public place.17 The court further found that Doe had established irreparable harm from the continued distribution of the video, and that Doe was entitled to proceed under a pseudonym because it did not prevent Topheavy’s ability to prepare an adequate defense given that Doe’s true name could be used in depositions as long as it was not disclosed to the media or in any public forum.18
        • Special Notes: Topheavy also complained about the $10,000 bond being too small, but the court explained that because it had introduced “no evidence regarding the profit margin on the sale of each game” or any estimates “of projected sales,” or sales lost due to the injunction, the district court’s decision to set the bond amount at $10,000 was not an abuse of discretion.19
      6. Toups v. GoDaddy.com, No. D-130018-C (Orange County Tex. 2013)[^invasion-of-privacy-20]
        • Procedural Posture: Plaintiff brought suit against defendants GoDaddy.com, revenge porn site Texxxan.com, and individuals associated with the website, and the litigation is moving forward in a Texas state court.
        • Law: Invasion of privacy (intrusion; disclosure of private facts; misappropriation; false light); gross negligence; IIED; civil conspiracy
        • Facts: On January 23, 2013, Plaintiff, Holly Toups and 23 other similarly situated women brought a putative class action suit against GoDaddy.com, revenge porn site Texxxan.com, and various individuals affiliated with the site. Plaintiffs alleged that Texxxan.com hosted intimate photos of women living in Texas submitted without their consent, and that GoDaddy.com was complicit in the web-site’s actions, and allowed the site’s administrators to post the improper content online. GoDaddy moved to dismiss under Section 230 of the Federal Communications Decency Act (“CDA”), which provides immunity for ISPs and companies that host web content created by a third party. Texxxan.com moved to dismiss plaintiff’s motion for a temporary or permanent injunction. The plaintiffs seek actual money damages, including for severe mental anguish and emotional distress, humiliation, fear, and other non-economic and economic damages. They also seek punitive damages for what they allege was “extreme and malicious conduct” on the part of the defendants.
        • Outcome: The suit is ongoing. However, on April 17, 2013, the judge granted the permanent injunction shutting down Texxxan.com, and denied GoDaddy’s motion to dismiss. GoDaddy subsequently moved for interlocutory review of whether it has immunity under the CDA, and the issue is under consideration.
        • Special Notes: Several articles about the ongoing suit are available online.20 Notably, although the Texas Supreme Court has held that it will not observe a claim of false light invasion of privacy, plaintiffs still brought a false light claim along with their three other categories of invasion of privacy claims. Plaintiff Holly Toups has also recently started a campaign to criminalize revenge porn in Texas.21
    4. Practice Pointers
      • Texas does not recognize a relational or derivative right of privacy; the right is personal only.22
      • Texas does not currently observe a false light invasion of privacy claim because it believes the cause of action is too similar to (and too easily confused with) defamation.23 However, such claims were legitimate prior to 1994.24
      • Texas courts apply a two-year statute of limitations to privacy torts.25

    1. Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973) (adopting a cause of action for invasion of privacy and awarding plaintiff $25,000 in damages against a defendant for unlawfully tapping plaintiff’s phone). 

    2. Cain v. Hearst Corp., 878 S.W.2d 577, 579-80 (Tex. 1994) (refusing to adopt false light invasion of privacy because (1) “it largely duplicates other rights of recovery, particularly defamation; and (2) it lacks many of the procedural limitations that accompany actions for defamation, thus unacceptably increasing the tension that already exists between free speech constitutional guarantees and tort law”). Notably, prior to Cain, the Fifth Circuit affirmed a false light invasion of privacy claim under Texas law in Wood v. Hustler Magazine, 736 F.2d 1084, 1093 (5th Cir. 1984). The law has since changed. 

    3. Billings, 489 S.W.2d. at 861. 

    4. Express One Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex. Ct. App. 2001) (noting that generally an “appropriation becomes actionable when the name is used to ‘advertise the defendant’s business or product, or for some similar commercial purpose’”). 

    5. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474 (Tex. 1994). 

    6. Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40, 48 (Tex. Ct. App. 2001) (citing Gill v. Snow, 644 S.W.2d 222, 223-24 (Tex. Ct. App. 1982), and Billings, 489 S.W.2d at 860). 

    7. See supra note 2 (explaining that the Fifth Circuit decided Wood before Texas courts held that they would not recognize a claim of false light invasion of privacy). 

    8. Wood, 736 F.2d at 1086. 

    9. Id. at 1092. 

    10. This case was decided prior to the 1994 Texas Supreme Court’s decision that it would not recognize a false light invasion of privacy claim. See supra note 2 (citing Cain, 878 S.W.2d at 579-80). 

    11. Braun v. Flynt, 726 F.2d 245, 258 (5th Cir. 1984). 

    12. Boyles v. Kerr (“Boyles I”), 806 S.W.2d 255, 259-60 (Tex. Ct. App. 1991) (finding that codefendants negligently breached their duty to “know of” the danger and the probability of injury to the appellee). 

    13. Id. 

    14. See Boyles v. Kerr (“Boyles II”), 855 S.W.2d 593, 600 (Tex. 1993). 

    15. Id. at 904-05 (“Newspaper should not be penalized after the fact for choosing and publishing the photograph of McNamara and the other student running after the soccer ball even though other photographs of other students participating in the soccer game were available.”). 

    16. Topheavy Studios, Inc. v. Doe, No. 03-05-00022-CV, 2005 WL 1940159, at *5 (Tex. Ct. App. Aug. 11, 2005). 

    17. Id. 

    18. Id. at *7. 

    19. Id. 

    20. See, e.g., Articles, John S. Morgan Law Firm Home-Page, available at http://www.jsmorganlaw.com/index.php/articles (last visited Sept. 17, 2013), and Jessica Roy, “Victims of Revenge Porn Mount Class Action Suit Against GoDaddy and Texxxan.com,” available at http://betabeat.com/2013/01/victims-of-revenge-porn-mount-class-action-s... (last visited Sept. 19, 2013). 

    21. See “Army of She” homepage, available at http://armyofshe.com/ (last visited Sept. 19, 2013). 

    22. See Moore v. Charles B. Pierce Film Enter., 589 S.W.2d 489, 491 (Tex. Ct. App. 1979). 

    23. See supra note 2 (citing Cain, 878 S.W.2d at 579-80 (declining to observe a false light invasion of privacy claim)). 

    24. See, e.g., Wood, 736 F.2d at 1092. 

    25. Id. at 1089 (“Wood’s privacy claims are governed by the general two-year statute of limitations applicable to actions for injury to the person, and are not time-barred.”). 

    ↑ Back to top
  7. Negligent Infliction of Emotional Distress

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos could try under the common law tort of negligent infliction of emotional distress in several states, in situations where the material’s negligent publication caused the victim to suffer severe emotional distress. However, the Texas Supreme Court expressly rejected NIED in 1993, so a WMC victim proceeding under Texas law would have to allege IIED to recover for damages relating to emotional harm he or she may have suffered.

    2. Elements

      No such claim exists in Texas; the Texas Supreme Court has expressly held that “there is no general duty not to negligently inflict emotional distress,” but “[o]ur decision does not affect a claimant’s right to recover mental anguish damages caused by defendant’s breach of some other legal duty.”1

    3. Cases
      1. Boyles v. Kerr (“Boyles II”), 855 S.W.2d 593 (Tex. 1993)
        • Procedural Posture: On rehearing before the Texas Supreme Court following appeals court affirming judgment for plaintiff on claim of negligent infliction of emotional distress.
        • Law: NIED; invasion of privacy (intrusion)
        • Facts: Boyles, a 17 year-old boy, and Kerr, a 19 year-old woman, had a number of brief sexual encounters. At one point, Boyles consented to letting his three friends, co-defendant, set up a hidden camera in the location where Boyles planned to meet Kerr to engage in sexual intercourse. A videotape was recorded of Boyles’ and Kerr’s sexual encounter. Boyles obtained the video shortly after it was made and showed it on three different occasions in private residences to about ten people. Kerr testified that there was considerable gossip about the tape circulating around the Southwest Texas State University campus where she attended school, as well as the University of Texas campus, where Boyles was a student. She also testified that the gossip had spread to her friends at other college campuses. In December of that year, she demanded that Boyles give her the tape, and he complied. However, Kerr testified that she had suffered severe emotional distress and embarrassment from the events, and that defendants’ negligence had caused her to suffer mental anguish. The jury returned a verdict in her favor, determining that the defendants’ negligence had proximately caused Kerr to suffer mental anguish, and that each defendant was jointly and severally liable. Defendants appealed claiming that the cause of action for negligent invasion of privacy does not exist. The court of appeals affirmed.
        • Outcome: On rehearing, the Texas Supreme Court held that “there is no general duty in Texas not to negligently inflict emotional distress,” and “[a] claimant may recover mental anguish damages only in connection with defendant’s breach of some other legal duty.”2 Accordingly, the court held that because plaintiff had only proceeded on a theory of NIED, it must reverse and in its discretion,3 would remand for a new trial.4
        • Special Notes: The Court specified that the holding did not “affect the right of bystanders to recover emotional distress damages suffered as a result of witnessing a serious or fatal accident,” and Texas observes that “bystander rules originally promulgated by the California Supreme Court.”5
    4. Practice Pointers

    • Texas has eliminated the “physical manifestation” requirement.6

    • Texas adopts the “bystander rules” first promulgated by the California Supreme Court.7


    1. Boyles II, 855 S.W.2d at 597 (citing cases recognizing a right to recover mental anguish damages caused by other types of breaches of duty such as wrongful death, invasion of privacy, defamation, and negligent infliction of a direct physical injury). 

    2. Id. at 594. 

    3. Id. at 603 (noting that “[w]e have broad discretion to remand for a new trial in the interest of justice where it appears that a party may have proceeded under the wrong legal theory. . . [remand] is even more appropriate where we have also subsequently given formal recognition to a cause of action which might be applicable to the facts of this case”) (citations omitted). 

    4. Id

    5. Id. at 597-98 (citing Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968)). 

    6. St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 653 (Tex. 1987) (by eliminating the physical manifestation requirement, Texas joined an established trend in American jurisprudence recognizing the tort of NIED without imposing arbitrary restrictions on recover: “The distinction between physical injury and emotional distress is no longer defensible.”). 

    7. As set forth in Dillon, 441 P.2d at 920, the bystander rules consider: “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Id

    ↑ Back to top
  8. Prima Facie Tort

    1. Introduction

      The victim of the nonconsensual online publication of intimate photographs or videos may try to sue under a common law prima facie tort claim, as it would be identical to claims for IIED. However, because Texas courts do not observe a prima facie tort claim, a WMC Texas-based plaintiff should move forward with an IIED claim instead..

    2. Elements
      1. An intent to injure on the part of the defendant;
      2. A lack of justification for the action; and
      3. Special damages, alleged with particularity.1
    3. Cases

      No such claim exists in Texas. Thus, there are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Texas has not expressly adopted a claim of prima facie tort.2 However, the elements of prima facie tort are nearly identical to those for IIED; thus, a WMC victim who cannot pursue a prima facie tort claim may still proceed on an IIED claim.

      The victim of the nonconsensual online publication of intimate photographs or videos may try to sue under a common law prima facie tort claim, as it would be identical to claims for IIED. However, because Texas courts do not observe a prima facie tort claim, a WMC Texas-based plaintiff should move forward with an IIED claim instead..

    5. Elements
      1. An intent to injure on the part of the defendant;
      2. A lack of justification for the action; and
      3. Special damages, alleged with particularity.1
    6. Cases

      No such claim exists in Texas. Thus, there are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    7. Practice Pointers

      Texas has not expressly adopted a claim of prima facie tort.2 However, the elements of prima facie tort are nearly identical to those for IIED; thus, a WMC victim who cannot pursue a prima facie tort claim may still proceed on an IIED claim.


    1. Martin v. Trevino, 578 S.W.2d 763, 772 (Tex. Ct. App. 1978). 

    2. Although the elements of a claim of prima facie tort resemble those applicable to a claim of IIED, Texas courts have refused to observe a prima facie tort. See Tatum v. Nationsbank of Texas, N.A., No. 05-94-01998-CV, 1995 WL 437413, at *5 (Tex. Ct. App. July 25, 1995) (rejecting appellant’s claim that the lower court erred in finding that Texas courts do not observe a prima facie tort cause of action). 

    ↑ Back to top
  9. Promissory Estoppel

    1. Introduction

      A WMC victim could seek to recover on a theory of promissory estoppel where the parties do not have a contract, but had an agreed-upon arrangement that was violated to a WMC victim’s detriment. For instance, where the parties took photographs of each other in the nude, and promised not to market or distribute them, but one party broke that promise, the other could potentially proceed on a claim for promissory estoppel.

    2. Elements
      1. A promise;
      2. Foreseeability by the promisor that the promise would rely on the promise; and
      3. Substantial reliance by the promise to his detriment.1
    3. Cases

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

    4. Practice Pointers

    • Texas courts view promissory estoppel as a viable alternative to breach of contract.2

    • The Texas Supreme Court has explained that the theory of promissory estoppel “does not create a contract where none existed before, but only prevents a party from insisting upon his strict legal rights when it would be unjust to allow him to enforce them. . . The function of the doctrine of promissory estoppel is, under our view, defensive in that it estops a promisor from denying the enforceability of the promise.”3 However, promissory estoppel, “does not operate to create liability where it does not otherwise exist.”4


    1. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. Ct. App. 1999). 

    2. Id

    3. Id. (citing “MooreBurger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972)). 

    4. Id. (citing Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988)). 

    ↑ Back to top
  10. Trespass to Chattels

    1. Introduction

      In a situation where a defendant interferes with a WMC victim’s disc of photos or the victim’s possession of personal, private images, the victim could try to bring a claim for trespass to chattels to recover money damages or other equitable relief. A trespass to chattels claim may be elevated to a claim of conversion in a situation where the victim all together loses his or her possession of the property in question.

    2. Elements
      1. Wrongful interference with another’s use or possession of property;
      2. Actual damage to the property OR deprivation of the owner’s use of the property for a substantial period of time.1
    3. Cases

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

    4. Practice Pointers

      Nothing relevant at this time.


    1. Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981). 

    ↑ Back to top