Indiana: Statutory Civil Law

  1. Indiana Right of Publicity Act

    1. Introduction

      A victim of nonconsensual publication of intimate images may have a cause of action under Indiana’s Right of Publicity Act 1 if the images are being used for commercial gain and the victim can show that the victim's image (or name, voice, signature, photograph, likeness, distinctive appearance, gesture, or mannerism) has commercial value. A claim for a violation can be asserted only if the alleged act or event of violation occurred after June 30, 1994.

    2. Text of Statute(s)

      Ind. Code § 32-36-1-1

    3. Cases

      Research is ongoing. A search of Indiana law on these issues did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      • Although Indiana's Right of Publicity Act was enacted in 1994, there is little case law referencing it.

      • The Right of Publicity Act’s jurisdictional provision is broad and seems to confer Indiana courts with statutory jurisdiction over any person publishing material on the Internet. 2 Under the Right of Publicity Act, any person who engages in conduct within Indiana that violates the Act, or who creates goods in or transports goods into Indiana, in violation of the Act, submits to the jurisdiction of Indiana.3

      • The Right of Publicity Act creates a “property right” in a personality's right of publicity.4

      • The Right of Publicity Act does not apply to literary works, theatrical works, musical compositions, film, radio, or television programs, original works of fine art or material that has political or newsworthy value.5

    1. Ind. Code § 32-36-1.
    2. Note that a plaintiff still would need to show that jurisdiction comports with due process.
    3. Ind. Code § 32-36-1-9.
    4. Phillips v. Scalf, 778 N.E.2d 480, 483 (Ind. Ct. App. 2002).
    5. Ind. Code § 32-36-1-1
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  2. Shield Law

    1. Introduction

      Indiana’s Shield Law protects journalists from being required to reveal their sources. Indiana courts have interpreted the shield law not to apply to anonymous online commenters. In addition, Indiana's Shield Law may be used only by journalists; anonymous posters acting as a “source” do not have the ability (i.e., standing) to invoke the Shield Law.

    2. Text of Statute(s)

      (1) Ind. Code § 34-46-4-1 – Applicability of chapter

      Sec. 1. This chapter applies to the following persons:

      (1) any person connected with, or any person who has been connected with or employed by:

      (A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

      (B) a recognized press association or wire service;

      as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

      (2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

      (2) Ind. Code § 34-46-4-2 – Privilege against disclosure of source information

      A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person's employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:

      (1) published or not published:

      (A) in the newspaper or periodical; or

      (B) by the press association or wire service; or

      (2) broadcast or not broadcast by the radio station or television station;

      by which the person is employed.

    3. Cases

      1. In re Indiana Newspapers Inc., 963 N.E.2d 534 (Ind. Ct. App. 2012)

        • Procedural Posture: Appeal of a motion to disclose the identity of an anonymous newspaper commenter
        • Law: Indiana Shield Law
        • Facts: Plaintiff, the former president of a civic organization, filed a complaint against an anonymous online commentator alleging, among other things, defamation in connection with the anonymous commenter's comments to an online newspaper article. The anonymous commenter implied in his comments to the newspaper article that plaintiff may have embezzled "unaccounted for" grant money from the civic organization. Plaintiff sought to compel the newspaper (which was not a party to the suit) to disclose the identity of the anonymous commenter and to provide all records and documents related to the online posting. The trial court issued an order compelling discovery. The newspaper appealed.
        • Outcome: With respect to the Indiana Shield Law, the appellate court held "that to be considered 'the source of any information' [under the Indiana Shield Law, an individual] must provide information that is then interpreted by the news organization." 1 Because (1) the anonymous commenter in this case wrote his comments on the website only after the newspaper article was published and (2) there was no evidence that the newspaper used the online posting to further investigate its original story, the court concluded that the anonymous commenter was not the source of any information. The court adopted a modified version of the test set forth in Dendrite International, Inc. v. Doe No. 3 2 that requires a plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the anonymous commenter's identity before a news organization is compelled to disclose such identity.3
    4. Practice Pointers

      Indiana's privilege is personal to the news organization and must be claimed by the news organization, not the source.4

    1. In re Indiana Newspapers Inc., 963 N.E.2d 534, 548 (Ind. Ct. App. 2012).
    2. 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
    3. In re Indiana Newspapers Inc., 963 N.E.2d at 537.
    4. Id. at 546.
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  3. Anti-SLAPP Statute

    1. Introduction

      The Anti-SLAPP Act provides a “good faith” defense to defamation lawsuits that relate to a public issue.1 The purpose of the Anti-SLAPP Act and its defense is to “reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional right of freedom of speech and petition for the redress of grievances... .”2 A SLAPP suit is a “strategic lawsuit against public participation,” such as a lawsuit that a powerful entity files to burden an individual with legal process in order to prevent the individual from exercising his or her free speech rights. Under the anti-SLAPP statute, if a court rules in favor of a defendant, it will dismiss the plaintiff's case early in the litigation and award the defendant attorneys' fees and court costs.

      A defendant who is sued for publishing intimate photographs or videos of a victim without his or her consent likely will not prevail on a motion under Indiana’s anti-SLAPP statute. First, the publication of a victim's intimate images would generally not be “a public issue or an issue of public interest.”3Further, to prevail on an anti-SLAPP motion, a defendant must show that his or her speech is “lawful.”4 If a defendant’s speech constitutes defamation, extortion or some other unlawful act, the anti-SLAPP law will not protect the defendant. Therefore, the anti-SLAPP statute should not prevent a victim from proceeding with his or her suit. However, a victim should be aware of the law in order to properly respond to any motion made under the statute.

    2. Text of Statute(s)

      Ind. Code § 34-7-7-1

    3. Cases

      1. Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. Ct. App. 2007)
        • Procedural Posture: Appeal from a trial court's order granting summary judgement in favor of defendant
        • Law: Anti-SLAPP statute; defamation; IIED
        • Facts: Plaintiff, a small business owner, sued defendant, the operator of a website that parodied the small business owner as a manipulative individual personally and professionally, for defamation and intentional infliction of emotional distress. Defendant filed a motion to dismiss and for summary judgment, arguing that the suit should be barred by Indiana's anti-SLAPP statute because the website was made in furtherance of defendant's right to free speech pursuant to the federal and state Constitutions. Plaintiff did not respond to defendant's motion to dismiss and argued at the trial court that they were not obligated to respond because defendant had not designated evidence as required by Indiana Trial Rule 56 and that the anti-SLAPP statute was not applicable because comedy is not a public interest within the scope of the anti-SLAPP statute. The trial court granted defendant's motion for summary judgment because plaintiff failed to demonstrate the necessary elements for a cause of action for defamation against defendant as a matter of law. Plaintiff filed a motion to correct error, but the trial court denied the motion. Plaintiff appealed the trial court's grant of summary judgment and the denial of the motion to correct error.
        • Outcome: The appellate court affirmed the trial court's grant of the motion to dismiss and for summary judgment in favor of defendant, finding that the website constituted a parody because "no reasonable person could believe its claims to be true" and that a parody cannot constitute a false statement of fact and cannot support a defamation claim. 5 With regard to the applicability of the anti-SLAPP statute, the court found that the anti-SLAPP statute did not apply to the suit because the website did not address a "public issue" or "issue of public interest" of the type the statute was designed to protect.6
      2. Shepard v. Schurz Communications, Inc., 847 N.E.2d 219 (Ind. Ct. App. 2006)
        • Procedural Posture: Appeal of a trial court's grant of summary judgement in favor of defendant
        • Law: Anti-SLAPP statute; defamation
        • Facts: Plaintiff, an attorney practicing in Morgan County, Indiana approached the town attorney on behalf of a client, requesting written verification of an allegedly delinquent sewer bill. The town attorney sent plaintiff a document entitled "Delinquent List," which contained the name, account number and address of plaintiff's client and of the fifty-one other sewer customers who had delinquent sewer bills. Plaintiff subsequently sent a letter to each of the fifty-one sewer customers on the Delinquent List notifying them of this invasion of privacy. A newspaper published an article regarding the incident, in which the town attorney was quoting as saying that plaintiff was a liar and that his statements were false. Plaintiff filed an action against the newspaper and the town attorney for defamation. The newspaper filed a motion to dismiss, arguing that it merely exercised its right to free speech related to a matter of public concern in publishing the newspaper article and invoking the Indiana anti-SLAPP statute (which provides that a "motion to dismiss" is to be treated as a motion for summary judgment). The trial court granted the newspaper's motion to dismiss and for summary judgment pursuant to the anti-SLAPP statute. Plaintiff appealed.
        • Outcome: The appellate court found affirmed the trial court's grant of the motion to dismiss and for summary judgment in favor of the newspaper, indicating that the anti-SLAPP statute criteria were satisfied because the newspaper showed that it acted without malice and merely reported statements that were made by the town attorney, statements that were incapable of being proved true or false by the newspaper, and that its speech was “lawful” and concerned an issue of public interest.
    4. Practice Pointers

      • All discovery proceedings in an action are stayed upon the filing of an anti-SLAPP motion except for discovery relevant to the motion.7

      • A defendant who prevails on an anti-SLAPP motion is entitled to recover reasonable attorney’s fees and costs.8 However, if an anti-SLAPP motion is found to be frivolous or “solely intended to cause unnecessary delay,” the plaintiff is entitled to recover reasonable attorney's fees and costs to answer the motion.9

    1. See Ind. Code § 34-7-7-5.
    2. Hamilton v. Prewett, 860 N.E.2d 1234, 1242 (Ind. Ct. App. 2007) (citing Poulard v. Lauth, 793 N.E.2d 1120, 1122 n.2 (Ind. Ct. App. 2003)).
    3. See Ind. Code § 34-7-7-5 (1).
    4. See Ind. Code § 34-7-7-5 (2).
    5. Hamilton v. Prewett, 860 N.E.2d at 1246.
    6. Id. at 1248.
    7. Ind. Code § 34-7-7-6
    8. Ind. Code § 34-7-7-7.
    9. Ind. Code § 34-7-7-8.
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