Invasion of Privacy--Public Disclosure of Private Facts
A public disclosure of private facts claim will be useful for virtually any victim of a nonconsensual publication of sexual photos or videos.
b. Elements of the Claim
Public Disclosure of Private Facts:
(1) A public disclosure;
(2) That concerns private facts;
(3) The disclosure of which would be offensive and objectionable to a reasonable person of ordinary sensibilities;
(4) Where the disclosure is not of legitimate public concern.1
- Lorenzo v. United States, 719 F. Supp. 2d 1208 (S.D. Cal. 2010).
Procedural Posture: Border Patrol Agent and his wife sued the Customs and Border Patrol Agency after a video depicting agent shooting illegal immigrant circulated the web. The U.S. filed a motion to dismiss.
Law: Violation of Privacy Act, 5 U.S.C. § 552a; Invasion of privacy—Public Disclosure of Private Facts; Invasion of privacy—False Light; Invasion of privacy—Intrusion Into Private Affairs; Negligent Supervision (probably not applicable to our cases); Negligent Infliction of Emotional Distress
Facts: Although the situation is different, the harm described in this case is very similar to the harm that results from the online publication of intimate images: “death threats, contempt, ridicule, financial and emotional distress and harm to their reputations.”2 In this case, plaintiff shot an illegal immigrant and the Customs and Border Protection Agency released to video of the shooting complete with plaintiff’s name and rank, and the seal of the Department of Homeland Security. The video circulated widely on the internet.
Outcome: False light and negligent supervision dismissed because barred by sovereign immunity; public disclosure dismissed because event was newsworthy; intrusion dismissed because event took place in a public setting; wife’s Privacy Act claim dismissed due to lack of standing; negligent infliction of emotional distress not dismissed.
- D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300 (Cal. Ct. App. 2009).
Procedural Posture: Arbitration that found in favor of school and awarded expenses to school, was appealed by parents who had sued the school after their son was the target of online hate speech due to his perceived sexual orientation.
Law: Negligence was one of 11 counts, but was dropped by plaintiffs.
Facts: “Several students at Harvard-Westlake, using its computers, went to the Web site and posted death threats against plaintiffs' son and made derogatory comments about him. One post read, “I'm going to pound your head in with an ice pick.” Another said, “Faggot, I'm going to kill you.” A third stated, “You are an oversized faggot.... I just want to hit you in the neck-hard.... [G]o to the 405 [freeway] bridge and jump.” A fourth read, “I hate fags.... You need to be stopped.” One student wrote, “I am looking forward to your death.” Another commented, “Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive.” One post read, “I want to rip out your fucking heart and feed it to you.” Several other posts couched threats with references to plaintiffs' son's misperceived sexual orientation as a homosexual.”3
Outcome: Judgment was reversed, ordered trial court to make sure that plaintiffs did not pay attorneys’ fees barred by hate crime statutes.4
Practice Pointers: It is very important to find out if any statutes could pin unsuccessful plaintiffs with defendants’ attorneys fees. Also, initials used in this case, but full name of parents used in the district court: Caplin v. Harvard-Westlake School.5 Note that this case does not involve publication of sexual photos, but does illustrate prevalence of sexualized violence online.
Subsequent cases: Parents/son also sued one of the students and his parents for hate crime, defamation, and intentional infliction of emotional distress in D.C. v. R.R.6
- Michaels v. Internet Entertainment Group, 5 F. Supp. 2d 823 (C.D. Cal. 1998).
Procedural Posture: Plaintiff filed a motion for a preliminary injunction to enjoin defendant from disseminating a videotape depicting plaintiff having sex with Pamela Anderson Lee.
Law: Copyright infringement, false designation of origin under the Lanham Act, state-law invasion of privacy based on publicity of the tape over Westwood One’s radio affiliates, violation of California common law right of publicity and violation of the California statutory right of publicity under Cal. Civ. Code § 3344.
Facts: Approximately three years after plaintiff and Lee made a sex tape, defendant (a corporation that distributes adult entertainment material through a subscription service on the internet) sent plaintiff a letter advising him they had acquired the tape and all rights necessary to publish it. Plaintiff’s lawyer advised defendant that plaintiff had not authorized the distribution of the tape and that publication of the tape would violate plaintiff’s copyright therein. The letter included demand that defendant cease and desist from attempts to disseminate or exploit the tape. In 1998, plaintiff registered the tape with the Register of Copyrights. Plaintiff filed an ex parte motion for a temporary restraining order to prohibit defendant from duplicating, publishing, promoting, marketing or advertising the tape, alleging that defendant said it would publish the tape on ClubLove, its internet subscription service. At a deposition, Revilla, private investigator who gave the tape to defendant, said that the tape had come from one of plaintiff’s associates who had received it as a gift. Revilla negotiated with defendant and made it clear that he was offering “only the physical Tape, not any intellectual property rights in the expression fixed on the Tape.”
Outcome: Preliminary injunction granted.
- Public Disclosure of Private Facts: Court found that plaintiffs had established a likelihood of success for this claim because the content of the tapes was private and its disclosure would be objectionable to a reasonable person.
- Injunction: “IT IS HEREBY ORDERED that, pending final judgment or dismissal of this action, defendant IEG and its agents, officers, employees, attorneys, and those acting in concert with them are temporarily restrained from:
1. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of the Michaels/Lee videotape (the “Tape”);
2. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of still photographs from the Tape, captured images from the Tape displayed on the Internet, and/or any downloaded hard copies of images from the Tape;
3. Selling, attempting to sell, causing to be sold, permitting any other individual or entity to sell, copying, reproducing, preparing derivative works, publishing, disseminating, distributing, circulating, promoting, marketing, and advertising of all advertising, promotional material, or packaging referring to the Tape;
4. Taking orders for copies of the Tape through the Internet or any other means;
5. Shipping copies of the Tape to those purchasers who already have placed orders for copies of the Tape, or to anyone else; and
6. Using Michaels's or Lee's name, likeness or identity in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”
- 1. Lorenzo v. United States, 719 F. Supp. 2d 1208, 1215 (S.D. Cal. 2010).
- 2. Id. at 1211.
- 3. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300, 304 (Cal. Ct. App. 2009).
- 4. See Cal. Civ. Code §§ 52(b)(3), 52.1.
- 5. Caplin v. Harvard-Westlake School, No. BC 332 406, 2007 Westlaw 5659331 (Cal. Super. Ct. Aug. 14, 2009).
- 6. D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Cal. Ct. App. 2010).