District of Columbia: Common Law

  1. Invasion of Privacy (General)

    1. Introduction

      There is no statutory right to privacy in D.C., but it has adopted the four forms of invasion of privacy set forth in Restatement (Second) of Torts § 652A (1977). These forms are appropriation, intrusion, publicity, and false light. There is limited factually apposite case law in D.C. regarding these claims. Litigants seeking to vindicate such claims in D.C. may need to rely on persuasive authority, such as caselaw from other jurisdictions and the Restatement (Second) of Torts. Nonetheless, publicity of private life claims especially may be a fruitful avenue for many victims to pursue in D.C.

    2. Elements of the Claim

      Intrusion upon Seclusion

      (1) an invasion or interference by physical intrusion, by use of a defendant’s sense of sight or hearing, or by use of some other form of investigation or examination

      (2) into a place where the plaintiff has secluded himself, or into his private or secret concerns

      (3) that would be highly offensive to an ordinary, reasonable person.1

      Appropriation of Likeness

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

      2) Resulting harm to the plaintiff; and

      3) Resulting benefit to the defendant.2

      Publicity of Private Life/Private Facts

      1) publicity,

      2) absent any waiver or privilege,

      3) given to private facts

      4) in which the public has no legitimate concern

      5) and which would be “highly offensive to a reasonable person of ordinary sensibilities.”3

      False Light

      1) publicity

      2) about a false statement, representation or imputation

      3) understood to be of and concerning the plaintiff, and

      4) which places the plaintiff in a false light that would be offensive to a reasonable person.4

    3. Cases

      1. Vassiliades v. Garfinckels, Brooks Brothers, 492 A.2d 580 (D.C. 1985).
        • Procedural Posture: After a jury trial, the trial court entered either a directed verdict or judgment notwithstanding the verdict to defendant on all counts. Plaintiff appealed.
        • Law: All four invasion of privacy torts.
        • Facts: Defendant published before and after photos of plaintiff’s plastic surgery.
        • Outcome: Reversed in part. Plaintiff had presented sufficient evidence for a jury to reasonably find her privacy was invaded by defendant of publicity of private facts, but insufficient evidence to support a claim of false light or appropriation of likeness.
        • Special Notes: There seems to be a strong analogy between liability for publishing embarrassing photos of before and after plastic surgery with much more offensive acts of non-consensual pornography.
    4. Practice Pointers

      • No economic injury required for public disclosure of private facts.
      • False light claims may be difficult unless the publication indicates in some way the victim consented to their publication or otherwise makes a false statement.
      • When bringing these claims in D.C., plaintiff may often need to rely on persuasive authority.
    1. Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C. 1989) (citations and internal punctuation marks omitted); see also Restatement (Second) of Torts § 652B.
    2. See Restatement (Second) of Torts § 652C.
    3. Wolf, 553 A.2d at 1220.
    4. See Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859 (D.C. 1999) (citing Restatement (Second) of Torts § 652E).
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  2. Defamation

    1. Introduction

      If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim. If so, a defamation claim may be viable.

    2. Elements of the Claim

      Plaintiff must show: (1) that the defendant[s] made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.1

    3. Cases

      1. Carter v. Hahn, 821 A.2d 890 (D.C. 2003).
        • Procedural Posture: Plaintiff had prevailed in a jury trial, but trial judge entered a directed verdict in favor of defendant.
        • Law: defamation, IIED
        • Facts: Plaintiff’s former employer mailed her check to the wrong address, and plaintiff never received it. She informed her former employer, who issued a stop-payment on the original check and sent a replacement. Someone impersonating plaintiff endorsed the check and cashed it at a liquor store operated by defendant. When defendant failed to obtain reimbursement for the check, he lied and claimed he knew plaintiff and that she had been the one to cash the check. Plaintiff was then arrested. When defendant could not pick her out of a lineup, however, the charges were dropped and defendant recanted.
        • Outcome: Reversed. Plaintiff had produced enough evidence that the jury could reasonably have found that that defendant intentionally and recklessly lied about plaintiff and therefore could sustain a defamation finding. Further, despite any “qualified privilege” due to defendant because he was reporting to the police, the appeals court held that there had been sufficient showing of malice on defendant’s part to sustain a verdict.
    4. Practice Pointers

      D.C. has an anti-SLAPP law, D.C. Code § 16-5502, which victims may want to consider if the defamation relates to a matter of public concern.

    1. Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001).
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  3. Intentional Infliction of Emotional Distress (“IIED”)

    1. Introduction

      Victims of nonconsensual online publications of intimate photographs or videos may, if they suffer severe emotional distress, sue for intentional infliction of emotional distress.

    2. Elements

      Plaintiff must show: (1) extreme and outrageous conduct on the part of the defendant that; (2) either intentionally or recklessly; (3) causes the plaintiff severe emotional distress.1

    3. Cases

      1. Underwood v. Washington Post Employees Fed. Credit Union, No. 88-CA-10060, 1992 WL 358838 (D.C. Super. June 19, 1992), affirmed in relevant part, sub nom, Estate of Underwood v. Nat'l Credit Union Admin., 665 A.2d 621 (D.C. 1995).
        • Procedural Posture: After a jury verdict in favor of plaintiff, individual defendant moved for judgment notwithstanding the verdict, arguing there was insufficient evidence to support a finding of intentional infliction of emotional distress.2
        • Law: intentional infliction of emotional distress
        • Facts: Plaintiff had an extramarital affair with defendant, her coworker. After she broke off the relationship, he began to regularly harass her at work because he was angry she had broken off their relationship. Further, he knew she was in a fragile emotional state because of marital issues and a serious health issue, and, as a result of his harassment, her health issues were exacerbated and she slipped into serious depression.
        • Outcome: Verdict upheld. There was sufficient evidence of intentional, severe emotional distress, especially in light of the parties’ previous intimate relationship.
        • Special Notes: This case lends support to a notion that a previous sexual relationship between the parties will strengthen an IIED claim.3
      2. Smith v. WMATA, No. 95-0687, 1997 WL 182286, *4 (D.D.C. 1997).
        • Procedural Posture: Plaintiff, a former WMATA employee, brought and IIED claim against WMATA and WMATA employees for personnel-related decisions.
        • Law: IIED
        • Facts: Plaintiff was told that he would be promoted to a manager-level position, and then performed the duties of that position for roughly a year, without receiving a title bump or raise. After an internal grievance, he received back pay in the amount of the raise he should have received. He then brought this action for, among other claims, IIED against WMATA and his superiors that did not promote him.
        • Outcome: Summary judgment granted to defendant. In addition to WMATA and employees being immune from suit for most torts, the actions alleged were not “outrageous” and “plaintiff’s asserted injuries of anxiety and depression do not rise to the level of ‘severe emotional distress.’”
      3. Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002).
        • Procedural Posture: Trial court granted motion to dismiss plaintiff’s claim for IIED. Plaintiff appealed.
        • Law: IIED
        • Facts: Defendant allegedly purchased two devices that made loud, piercing noises and placed them outside plaintiff’s office for 9 months. Plaintiff claimed, as a result, that he suffered severe headaches, chills, nausea, etc. Plaintiff also informed defendant of the effects the noises were having and begged her to stop.
        • Outcome: Reversed. A loud, piercing sound continuing for 9 months that caused significant injury could be sufficient to sustain an IIED claim.
    4. Practice Pointers

      • IIED claims will be stronger where the victim can document the harm they suffer as a result, such as illness, depression, or need to visit medical professionals.
      • The existence of a prior romantic relationship can strengthen an IIED claim.
    1. Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002).
    2. The court also addressed an issue regarding the applicability of the Workers’ Compensation Act, which is irrelevant here, that was reversed on appeal.
    3. “The parties' previous relationship critically changes the impact and context of West's actions. Cruelty from an ex-lover is unlike hostility that has some other trigger. Because of the congeries of emotions involved the ex-lover's actions are far more likely to cause pain and mental turmoil. Additionally, the motivation for the acts bears on their unacceptability. To wreak revenge because a married woman won't submit sexually is far more odious and reprehensible than meanness traceable to, for example, professional competition or personal dislike.” Id. at *4.
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  4. Negligent Infliction of Emotional Distress (“NIED”)

    1. Introduction

      The victim of nonconsensual online publication of intimate photographs or videos may have difficulty suing under a theory of negligent infliction of emotional distress because D.C. courts require the plaintiff to have been within a physical “zone of danger” to sustain such claims.

    2. Elements

      Plaintiff must show: (1) Serious emotional distress accompanied by a physical injury or an additional underlying tort; and (2) Defendant’s tortious conduct was not intentional.

    3. Cases

      1. Jane W. v. President & Directors of Georgetown Coll., 863 A.2d 821, 826–27 (D.C. 2004).
        • Procedural Posture: Plaintiff brought negligence action against hospital. Trial court granted summary judgment in favor of defendant. Plaintiff appealed.
        • Law: NIED
        • Facts: Plaintiff discovered that hospital may have inadvertently replaced her pain medication with saline solution during radiology treatment. Plaintiff alleged NIED.
        • Outcome: Affirmed. The court held that plaintiff had not shown that she was plausibly in the “zone of physical danger,” a necessary prerequisite for an NIED claim in D.C.
        • Special Notes: It appears a zone of “physical danger” is required for NIED claims in D.C.
    4. Practice Pointers

      Because the transmission and publication of revenge pornography would seem not to create an immediate “zone of physical danger,” the NIED tort is likely of limited relevance to victims in D.C.

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