In cases involving nonconsensual publication of sex photos or videos, negligence claims seem to be employed against third parties. For example, if the material was posted from a school or employer’s computer, the suit may include a negligence claim against the school or employer.
b. Elements of the Claim
“The elements of a cause of action for negligence are: (1) the existence of a duty on the part of the actor toward another to take action to protect against risk; (2) the failure on the part of the actor to conform to a required standard of conduct in light of the duty imposed; (3) a reasonably close connection between the conduct and the resulting injury, commonly called “proximate cause”; and (4) actual loss or damage resulting from such injury.”1
- 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 plaintiff 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 plaintiff son's misperceived sexual orientation as a homosexual.”2
Outcome: Judgment was reversed, ordered trial court to make sure that plaintiffs did not pay attorneys’ fees barred by hate crime statutes.3
Practice Pointers: It could be worthwhile 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.4 Note that this case does not involve publication of sexual photos, but does illustrate prevalence of sexualized violence online.
Subsequent cases: Plaintiffs 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.5
- 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 deppicting 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; 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.”6 Here a border patrol agent shot an illegal immigrant and the Customs and Border Protection Agency released to video of the shooting complete with agent’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. Practice Pointers
California courts do not recognize a cause of action for “gross negligence.”7 Similarly, in California, “negligent infliction of emotional distress” is covered under the tort of negligence.8
- 1. Koepke v. Loo, 23 Cal. Rptr. 2d 34, 36 (Cal. Ct. App. 1993).
- 2. D.C. v. Harvard-Westlake School, 98 Cal. Rptr. 3d 300, 304 (Cal. Ct. App. 2009).
- 3. See Cal. Civ. Code §§ 52(b)(3), 52.1.
- 4. Caplin v. Harvard-Westlake School, No. BC 332 406, 2007 Westlaw 5659331 (Cal. Super. Ct. Aug. 14, 2009).
- 5. D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Cal. Ct. App. 2010).
- 6. Lorenzo v. United States, 719 F. Supp. 2d 1208, 1211 (S.D. Cal. 2010).
- 7. Continental Ins. Co. v. American Protection Industries, 242 Cal. Rptr. 784, 789 n. 7 (Cal. Ct. Ap.1987) (Heading states: “Do Our Courts Recognize a Cause of Action for ‘Gross Negligence’? No.”).
- 8. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 257 Cal. Rptr. 98, 102 (Cal. 1989).