Maine: Common Law
Contents
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Invasion of Privacy (General)
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Introduction
Maine recognizes a common law right of privacy based on the Second Restatement of Torts, which outlines “four kinds of interests, the invasion of which may give rise to a tort action for breach of another person’s right to privacy.” Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me. 1977). These include: unreasonable intrusion upon the seclusion of another, appropriation of the other’s name or likeness, unreasonably publicity given to the other’s private life, and publicity that unreasonably places the other in a false light before the public. Id.
A WMC victim could potentially allege these four types of invasion of privacy.
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Elements
Intrusion Upon Seclusion: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”1
Elements:
1. Defendant, without authorization, intentionally invaded the private affairs of the plaintiff.
2. The invasion is offensive to a reasonable person.
3. The matter that the defendant intruded upon involves a private matter.
4.The intrusion caused mental anguish or suffering to the plaintiff.
Appropriation of Name or Likeness: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”2
Elements:
1. Use of a Protected Attribute: The plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff’s name or likeness, but this claim has been interpreted to cover certain other personal attributes as well, such as a voice or signature.
2. For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. Use of someone’s name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff’s identity and a matter of legitimate public interest.
3. No Consent: The plaintiff must establish that he or she did not give permission for the offending use.
Publicity Given to Private Life: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”3
Elements:
1. Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must “give publicity” to the fact or facts in question.
2. Private Fact: The fact or facts disclosed must be private, and not generally known.
3. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
4. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern.
Publicity Placing Person in False Light: “One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”4
Elements:
1. The defendant published the information widely (i.e., not to just a single person, as in defamation).
2. The publication identifies the plaintiff
3. It places the plaintiff in a “false light” that would be highly offensive to a reasonable person.
4. The defendant was at fault in publishing the information.
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Cases
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Berthiaume’s Estate v. Pratt, 365 A.2d 792 (Me. 1976)
- Procedural Posture: Appeal from Superior Court decision granting defendant’s motion for directed verdict
- Law: Intrusion upon seclusion
- Facts: Defendant doctor made an uninvited entry into the hospital room of a dying person for the express purpose of taking unauthorized photographs. Administratrix of decedent’s estate brought action for damages against physician for invasion of decedent’s right to privacy and for assault and battery on him. The Superior Court granted the physician’s motion for directed verdict and administratrix appealed.
- Outcome: The Supreme Judicial Court sustained the appeal. It held that because the decedent, while on his death bed, had physically manifested his desire not to be photographed by the doctor, and the decedent’s wife had told the doctor that the decedent did not wish to be photographed, but the doctor still photographed the decedent after lifting his head to place a blue towel underneath for purposes of enhancing the photo, the doctor was liable for invasion of the decedent’s privacy and for assault and battery.
- Special Notes: The Supreme Judicial Court noted that intrusion upon seclusion requires proof of an actual invasion of “something secret, secluded or private pertaining to the plaintiff.” Berthiaume’s Estate, 365 A.2d at 795 (citation omitted). This can in some situations include “facial characteristics or peculiar caste of one’s features,” for example in this case where the pictures involved a dying person and the images may be particularly sensitive or private in this context. Id. at 797.
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Fitch v. Stanley, No. CIV.A. CV-04-78, 2005 WL 3678033 (Me. Super. Dec. 16, 2005)
- Procedural Posture: Defendant’s motion to dismiss first amended complaint
- Law: Appropriation of name or likeness; false light
- Facts: Defendant sent emails under plaintiff’s name, allegedly to harm plaintiff and expose him to ridicule. Plaintiff made several privacy and emotional distress claims against defendant, including misappropriation and false light claims.
- Outcome: The Superior Court denied defendant’s motion to dismiss the misappropriation claim but granted his motion to dismiss the false light claim. The court did not go into a full analysis of the elements of a misappropriation claim but found that “read in the light most favorable to plaintiff,” plaintiff adequately alleged misappropriation. Fitch, 2005 WL 3678033, at *1.
- Special Notes: The court noted that defendant’s “benefit” from misappropriation does not need to be tangible or commercial; it can be as simple as fulfilling defendant’s desire “to ridicule” plaintiff. Id. The false light claim was dismissed because plaintiff did not adequately allege that the emails were set to “the public,” as it was only sent to a group of six people.
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Nelson v. Maine Times, 373 A.2d 1221 (Me. 1977)
- Procedural Posture: Appeal from Superior Court decision granting defendant’s motion to dismiss
- Law: Intrusion upon seclusion; appropriation of name or likeness; publicity given to private life
- Facts: Mother and her minor son brought action against a newspaper to recover for alleged invasion of privacy for allegedly publishing son’s picture in connection with a book review without authorization. The Superior Court dismissed the complaint for failure to state a claim, and plaintiffs appealed.
- Outcome: The court denied plaintiffs’ appeal. The court found that the intrusion upon seclusion claim was not adequately pled because there was no allegation that defendant “physically intruded upon the plaintiff’s ‘solitude or seclusion.’” Nelson, 373 A.2d at 1223. The court distinguished this case from Berthiaume, where defendant made an uninvited “entry” into the hospital room. Id. With regard to the appropriation of name or likeness claim, the court did not find the publication to be offensive to a reasonable person. On the other hand, “if a person reasonably constituted could anticipate that such an appropriation could cause mental distress and injury to another who was possessed of ordinary feelings and intelligence, such an appropriation would be tortious.” Id. at 1224. With regard to the publicity given to private life claim, the court found that the plaintiffs’ claim did not sufficiently state a claim because it was just a picture of the boy outside with a normal face and “it could not be argued that a person’s normal facial appearance is of private concern only.” Id. at 1225.
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Practice Pointers
- Note that Maine has a two-year statute of limitations for false light claims. See Me. Rev. Stat. 14 § 753; Gashgai v. Leibowitz, 703 F.2d 10, 13 (1st Cir. 1983). “Under Maine law the time for filing suit under 14 M.R.S.A. § 753 starts to run separately as to each incident on the day after each publication or broadcast.” Bloomquist v. Albee, No. CIV.03-276-P-S, 2004 WL 2203469, at *2 (D. Me. Sept. 29, 2004) (citation omitted). However, if the WMC victim is “is a minor, mentally ill, imprisoned or without the limits of the United States when the cause of action accrues, the action may be brought within the times limited herein after the disability is removed. Id. at *3 (citing Me. Rev. Stat. 14 § 853). Thus, to the extent the exceptions under section 853 do not apply, a WMC victim should bring a false light claim within two years after the perpetrator publishes a false light image.
- Appropriation is sometimes limited to commercial use of another’s likeness, but Maine’s broad interpretation of the tort expands its potential use by WMC plaintiffs against those who would distribute intimate imagery for purposes other than commercial gain.
- Maine generally follows the Restatement with respect to invasion of privacy torts, and thus law in other jurisdictions may be persuasive as well.
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Defamation
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Introduction
False statements about a person that injure his or her reputation that are made to a third party without consent are considered defamatory. Maine is a per se state, meaning that Maine allows plaintiffs to file suits on the theory that a claim is inherently defamatory and the plaintiff does not have to prove actual damages to show damage to reputation.
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Elements
“Common law defamation consists of:
‘ (a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either action-ability of the statement irrespective of special harm or the existence of special harm caused by the publication.’” 1
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Cases
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Caron v. Bangor Pub. Co., 470 A.2d 782, 783 (Me. 1984)
- Procedural Posture: Appeal from Superior Court decision granting defendant’s summary judgment motion
- Law: Defamation
- Facts: Plaintiff police officer alleged defendant publishing company of defamation for publishing statement suggesting that he was an ineffective police officer because he was overweight.
- Outcome: The court affirmed the lower court judgment, finding that the statement that plaintiff was too overweight to be an effective police officer could reasonably be understood as an opinion rather than a statement of objective fact and therefore was not defamation.
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Practice Pointers
Note that Maine’s defamation statute of limitations is two years. Me. Rev. Stat. 14 § 753. “Under Maine law the time for filing suit under 14 M.R.S.A. § 753 starts to run separately as to each incident on the day after each publication or broadcast.” Bloomquist v. Albee, No. CIV.03-276-P-S, 2004 WL 2203469, at *2 (D. Me. Sept. 29, 2004) (citation omitted). However, if the WMC victim is “is a minor, mentally ill, imprisoned or without the limits of the United States when the cause of action accrues, the action may be brought within the times limited herein after the disability is removed. Id. at *3 (citing Me. Rev. Stat. 14 § 853). Thus, to the extent the exceptions under section 853 do not apply, a WMC victim should bring a defamation claim within two years after the perpetrator publishes a defamatory image.
↑ Back to top- Osgood v. C.U. York Ins. Co., No. CIV.A. CV-04-568, 2006 WL 1980396, at *5 (Me. Super. June 5, 2006) (citing Lester v. Powers, 596 A.2d 65, 69 (Me.1991)). ↩
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Conversion
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Introduction
A WMC victim may try to bring a claim of conversion to recover damages or equitable relief if a defendant appropriates the victim’s private photos or images and refuses to return them to the victim. However, because of the digital nature of photographs and videos online, the perpetrator’s publication of the material may not necessarily interfere with the victim’s possession of it under a conversion claim. A victim has a clearer conversion claim if the perpetrator took the images from the victim in such a way that the victim no longer had access to the images, for example if the perpetrator took physical prints where no digital file exists, or copied the image from the victim’s computer, and then deleted the image from his/her computer.
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Elements
“The necessary elements to make out a claim for conversion are:
1. A showing that the person claiming that his property was converted has a property interest in the property;
2. that he had the right to possession at the time of the alleged conversion; and
3. that the party with the right to possession made a demand for its return that was denied by the holder.”1
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Cases
A search of Maine law did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
↑ Back to top- Withers v. Hackett, 714 A.2d 798, 800 (Me. 1998). ↩
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Breach of Contract
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Introduction
In a situation where two parties agree to make private images of a WMC victim on the condition that such images are kept private, the victim may have a claim for breach of contract and can seek damages and injunctive relief if the perpetrator disseminates the images.
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Elements
“In order to adequately plead a breach of contract claim, a party must allege:
1. ‘breach of a material contract term;
2. causation; and
3. damages.’”1
To demonstrate there the parties formed a contract, there needs to be a showing of:
1. “a meeting of the minds;
2. consideration, and
3. mutuality of obligations.”2
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Cases
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Halco v. Davey, 919 A.2d 626 (Me. 2007)
- Procedural Posture: Appeal from Superior Court’s grant of defendant’s motion to dismiss
- Law: Breach of contract
- Facts: Former employee filed suit against employer, asserting that employer’s comments about terms of settlement agreement gave rise to breach of contract and other claims.
- Outcome: The court held that the former employee sufficiently stated claim for breach of the settlement agreement’s prohibition on the disclosure of the terms of the settlement. Specifically, the court found that the allegations that defendant made statements about the settlement agreement as a “payoff” and that the amount “wasn’t very much” revealed the nature of the terms of the agreement involving payment of money in exchange for dismissal of lawsuit, which were supposed to be confidential under the contract.
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Promissory Estoppel
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Introduction
A promissory estoppel claim is a much broader cause of action than a breach of contract claim and can be used to enforce promises that fall outside a contract. This claim may be useful to WMC victims who relied on a promise that certain photos/videos would be kept private or deleted but where there may not be a contract.
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Elements
“A promissory estoppel claim consists of the following elements:
1. a promisor making a promise that it should reasonably realize will cause the promisee to act or to forbear
2. the promise actually inducing the promisee to act or to forebear
3. an injustice resulting if the promisor is not bound by its promise.”1
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Cases
A search of Maine law did not reveal any cases that are factually relevant or analogous to WMC’s target situations.
↑ Back to top- Twin Town Homes, Inc. v. Molley, No. CIV.A. CV-01-298, 2002 WL 32068353, at *2 (Me. Super. Nov. 14, 2002) (citing Struck v. Hackett, 668 A.2d 411, 420 (Me.1995)). ↩
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Intentional Infliction of Emotional Distress (“IIED”)
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Introduction
Victims of the nonconsensual disclosure, publication, and/or distribution of sexually explicit images may pursue an IIED claim. There are some analogous cases involving IIED claims in conjunction with invasion of privacy and defamation claims, discussed below, and the cases suggest that there are some limits, however, to when IIED claims can be made. For example, courts do not appear to allow recovery for a separate emotional distress claim where the underlying tort already provides for recovery for mental suffering.
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Elements
The elements of an IIED claim are:
“1. the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from her conduct;
2. the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community;
3. the actions of the defendant caused the plaintiff’s emotional distress; and
4. the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.”1
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Cases
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Stokes v. Barnhart, 257 F.Supp.2d 288 (D. Me 2003)
- Procedural Posture: Appeal from Superior Court’s grant of summary judgment in favor of defendants
- Law: IIED, NIED, invasion of privacy
- Facts: Cancer patient sued Social Security Administration (SSA) employee and Commissioner of Social Security, alleging he suffered damages as a result of disclosure of confidential medical information regarding his HIV status.
- Outcome:
- On defendants’ motion to substitute the United States as the sole party defendant, to dismiss, and for summary judgment, and plaintiff’s motion to amend complaint, the District Court adopted the opinion of the Magistrate Judge, including that plaintiff sufficiently stated a claim for IIED. The court found that plaintiff’s allegations that the SSA employee wrongfully revealed his HIV status and that as a result he had “been isolated, depressed, anxious, embarrassed and his relationships with family and friends have been adversely impacted,” so as to be entitled to $25,000 in damages, were sufficient to state an IIED claim.
- The court also held that plaintiff could not maintain a separate claim for NIED based on the same elements as his claim for invasion of privacy. Where the requirement of the existence of a duty running from the defendant to the plaintiff is set forth in a separate tort claim (the invasion of privacy claim), there is no separate claim for NIED.
- The court further held that the disclosure of plaintiff’s HIV status to a small number of people was insufficient to maintain cause of action for invasion of privacy, which requires more widespread publicity.
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Rippett v. Bemis, 672 A.2d 82 (Me. 1996)
- Procedural Posture: Appeal from Superior Court’s grant of summary judgment in favor of defendants
- Law: Defamation, IIED, NIED
- Facts: Wife sued sheriff and sheriff’s detective based on detective’s alleged defamatory statements to news reporter that weapon that had been taken from felon had been returned to his wife. Among other claims, wife claimed defamation, IIED, and NIED.
- Outcome: The Supreme Judicial Court found that fact issues existed as to defamation claim and therefore vacated the summary judgment with regard to that claim. However, the court affirmed the judgment on the IIED and NIED claims. The court found that the sheriff’s detective could not be held liable for intentional or negligent infliction of emotional distress based on statements that were also subject of plaintiff’s defamation claims; any damages sustained by plaintiff would be included in award for defamation.
- Special Notes: It seems that Maine courts do not allow recovery for a separate emotional distress claim where the underlying tort already provides for recovery for mental suffering.
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↑ Back to top- Curtis v. Porter, 784 A.2d 18, 23-24 (Me. 2001) (citation omitted). ↩
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Negligent Infliction of Emotional Distress (“NIED”)
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Introduction
The victim of a nonconsensual online publication of intimate photographs or videos may also sue under the common law tort of NIED in situations where the material’s publication caused the victim to suffer severe emotional distress. However, to the extent that another tort claim already provides for damages for mental suffering or where the NIED claim essentially duplicates and is based on the same elements for another tort claim, a court may not award additional damages under a separate NIED claim.
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Elements
The elements of a claim for NIED are:
“1. the defendant owed a duty to the plaintiff;
2. the defendant breached that duty;
3. the plaintiff was harmed; and
4. the breach caused the plaintiff’s harm.”1
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Cases
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Hilderbrand v. Washington Cty. Comm’rs, 33 A.3d 425 (Me. 2011)
- Procedural Posture: Appeal from Superior Court’s grant of summary judgment in favor of defendants
- Law: NIED
- Facts: Defendant sheriff publicly announced that he would not hire a particular consortium of law enforcement agencies because of a video he saw showing that plaintiff, who is a part of the consortium, engaged in some seemingly inappropriate alcohol consumption activities. Plaintiff claimed that those statements were defamatory and an invasion of privacy since the sheriff allegedly knew that plaintiff was cleared of criminal wrongdoing in an earlier investigation by the attorney general. As a result of the alleged defamation and invasion of privacy, plaintiff claimed that he suffered NIED as well.
- Outcome: The court affirmed the Superior Court’s judgment, finding that the sheriff’s department was entitled to discretionary function immunity from liability arising out of its decision and public statements to terminate the relationship with plaintiff and his consortium based on the video, as the department’s actions were essential to accomplish the goals of ending what the sheriff saw was inappropriate use of law enforcement resources and providing transparency in governmental action.
- Special Notes:
- “Although people do not have a general duty to avoid negligently causing emotional harm to others, Maine recognizes such a duty in three instances: in bystander liability claims, in cases where a special relationship exists between the parties involved, and when the actor has committed another tort.” LaMarche v. Metro. Life Ins. Co., No. CIV. 01-123-BS, 2002 WL 989479, at *2 (D. Me. May 14, 2002). Here, for a WMC victim, the duty is likely based on the third situation--when the actor has committed another tort--as the victim is not merely a bystander and the victim also likely no longer has a “special relationship” with the perpetrator. See Berry v. WorldWide Language Res., Inc., 716 F. Supp. 2d 34, 51 (D. Me. 2010) (citing Estate of Cilley v. Lane, 985 A.2d 481 (Me. 2009) (special relationships not extended to ex-girlfriend/ex-boyfriend).
- The Hilderbrand case appears to involve the third situation, where the sheriff’s department allegedly committed a tort by making an announcement about the video. However, in that case, the sheriff’s department had special immunity for disclosing the video, so the court did not fully address the defamation or invasion of privacy claims. This immunity is not likely applicable to a perpetrator disclosing a video or image of a WMC victim.
- However, based on other cases, it seems that Maine courts generally do not allow recovery for a separate NEID claim where the underlying tort already provides for recovery for mental suffering or where NIED claim essentially duplicates and is based on the same elements for the underlying tort claim. Thus, to the extent that the damages for the underlying tort cause of action already account for mental suffering, a court would not likely award an additional amount of damages based on a separate NEID claim.
- For example, the compensatory damages for a defamation claim may already include “the elements of mental suffering, humiliation, embarrassment, effect on reputation and loss of social standing,” so defendant could not also be held liable for separate emotional distress claims based on those statements. See Rippett v. Bemis, 672 A.2d 82, 88 (Me. 1996). Any damages sustained by plaintiff would be included in award for defamation.
- And a court would not likely allow a plaintiff to maintain a separate claim for NIED for an invasion of privacy claim where the requirement of the existence of a duty running from the defendant to the plaintiff is already set forth in that tort claim. See Stokes v. Barnhart, 257 F. Supp. 2d 288 (D. Me. 2003) (cancer patient could not maintain separate claim for negligent infliction of emotional distress based on the same elements as his claim for invasion of privacy, which arose from disclosure of confidential medical information regarding his HIV status).
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↑ Back to top- Curtis v. Porter, 784 A.2d 18, 25 (Me. 2001) (citation omitted). ↩
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Injurious Falsehood
An “injurious falsehood” claim in Maine appears to be primarily used for “slander of title” actions that protect a person’s property interest against words or conduct that bring or tend to bring the validity of that interest into question. As such, it is unlikely to be relevant to a WMC action.
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