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Tools to fight online harassment

Washington: Statutory Civil Law

Contents

  1. Wash. Const. art. I, § 7
  2. RCW 4.24.790 Electronic impersonation—Action for invasion of privacy
  3. RCW 9.61.260 – Cyberstalking
  4. RCW 9.61.230, .240, .250 – Telephone Harassment
  5. RCW Chapter 9.73 – State Privacy Act
  6. RCW Chapter 10.14 – Civil Harassment
  7. RCW 63.60.010, et. seq. – Use of name, voice, signature, photograph, or likeness

  1. Wash. Const. art. I, § 7

    1. Introduction

      Washington’s constitution, Wash. Const. art. I, § 7, explicitly recognizes a right to individual privacy in its text.1 This law has been interpreted to protect a person from invasions of privacy into their personal affairs by the State (e.g. interference through government action), and not by other private parties.  The law is mostly referenced in cases centered on alleged warrantless searches. This constitutional clause recognizes a right to privacy with “no express limitations” and “places greater emphasis on privacy than does the Fourth Amendment.”2

    2. Text of the Statute(s)

      No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

    3. Cases

      Research is ongoing. A search of Washington cases citing this law did not reveal any cases that are factually relevant or analogous to WMC’s target situations. The seminal case citing this law concludes that the “right to privacy” observed under the Washington Constitution provides greater protection from unwarranted and unwanted state action than the federal Constitution.3

      1. State v. Young, 123 Wn.2d 173, 867 P.2d 593 (1994) (en banc)

        • Procedural Posture: Procedural Posture: Washington Supreme Court accepted defendant’s petition for review of a decision affirming his conviction for possession of marijuana with intent to distribute.

        • Law: Wash. Const. art. I, § 7 (protection of private affairs and protection from warrantless invasion of home)

        • Relevant Facts: Defendant appealed from conviction which followed court decision denying motion to suppress evidence obtained from police officers’ use of an infrared camera that revealed marijuana in defendant’s home.

        • Outcome: The court reversed the conviction and determined that warrantless infrared surveillance violated Washington State Constitution and Fourth Amendment.  Without the information obtained through the search, there was insufficient evidence to demonstrate probable cause to allow the officers to search defendant’s home.

        • Special Notes: Washington decisions have noted that the home “receives heightened constitutional protection,”4 because the home is a private place.

    4. Practice Pointers

      • This constitutional clause has most often been cited in the context of motions to suppress following alleged warrantless searches by the State, and it will likely not be a useful tool for a WMC victim. However, it does highlight Washington’s strong interest in the right to privacy.

    1. Wash. Const. art. I, § 7. ↩
    2. See Young, 123 Wn.2d at 185. ↩
    3. Id. ↩
    4. Id. at 185. ↩
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  2. RCW 4.24.790 Electronic impersonation—Action for invasion of privacy

    1. Introduction

      The legislature finds that electronic impersonation is on the rise as more people conduct personal business in an online setting. In some cases, electronic impersonation can result in damage to a person’s reputation or other harmful repercussions. Therefore, it is the intent of the legislature to clarify that a person who suffers harm as a result of electronic impersonation may be able to bring a civil invasion of privacy claim.

    2. Text of the Statute(s)

      The text of RCW 4.24.790 is available here.

      A person violates RCW 4.24.790(2) when “(a)[t]he person impersonates another actual person on a social networking web site or online bulletin board; (b) [t]he impersonation was intentional and without the actual person's consent; (c) [t]he person intended to deceive or mislead for the purpose of harassing, threatening, intimidating, humiliating, or defrauding another; and (d) [t]he impersonation proximately caused injury to the actual person...inclu[ding] injury to reputation or humiliation, injury to professional or financial standing, or physical harm.”

    3. Cases

      1. Chavan v. Cohen, No. C13-01823 RSM (W.D. Wash. July 6, 2015)

        • Procedural Posture: After being granted expedited discovery into Defendant’s identity, Plaintiffs accomplished service and Defendant defaulted. Plaintiffs’ Motion for Default Judgment and Permanent Injunction was granted in part.

        • Law: Stored Communications Act, 18 U.S.C. § 2701, et seq., the Wiretap Act, 18 U.S.C. § 2511, et seq., and invasion of privacy by electronic communication under RCW 4.24.790.

        • Relevant Facts: Defendant intersected Plaintiff’s email and impersonated Plaintiff without his consent on at least three social networking websites (MySpace, Facebook.com , and Mylife.com).

        • Outcome: Damages plus permanent injunction. The injunction reads:

          Defendant is hereby permanently ORDERED and ENJOINED as follows:

          A. Defendant and all other persons acting in concert or participation with Defendant:

          1. Are prohibited from directly or indirectly accessing or attempting to obtain access to any email account, social networking account or profile, bank account, credit report, financial information, family history information, educational information, or other online or electronic account of any Plaintiff, or of any family member, friend, or associate of any Plaintiff;

          2. Are prohibited from directly or indirectly contacting or communicating with, or attempting to contact or communicate with, any Plaintiff or any family member, friend, or associate of any Plaintiff, except through counsel;

          3. Are prohibited from further engaging in any acts in violation of the Stored Communications Act, 18 U.S.C. § 2701, et. seq., related in any way to any Plaintiff or any family member, friend, or associate of any Plaintiff;

          4. Are prohibited from further engaging in any acts in violation of the Wiretap Act, 18 U.S.C. § 2510, et. seq., related in any way to any Plaintiff or any family member, friend, or associate of any Plaintiff;

          5. Are prohibited from further engaging in any acts in violation of RCW 4.24.790 related in any way to any Plaintiff or any family member, friend, or associate of any Plaintiff;

          6. Are prohibited from impersonating any Plaintiff or any family member, friend, or associate of Plaintiff, or otherwise claiming to be a friend, family member, or associate of any Plaintiff;

          7. Are prohibited from in any way inducing, encouraging, aiding, abetting, or contributing to any of the aforesaid acts;

          B. Defendant is ORDERED to:

          1. Immediately and permanently cease and desist from any actions undertaken using any name, email account, messaging account, or social networking account associated with any Plaintiff or any family member, friend, or associate of any Plaintiff, including without limitation deleting and/or disabling any email, social networking, or other electronic or online account in Defendant’s control through which Defendant has used the name or other identifying information of any Plaintiff, or any family member, friend, or associate of any Plaintiff, including at least the following: [redacted].

          2. Within 14 days of service of the Court’s order, identify to Plaintiffs’ counsel all communications that Defendant made or caused or encouraged to be made under or in connection with the name, photograph, or other identifying information of any Plaintiff, or any family member, friend, or associate of any Plaintiff (“Impersonated Communications”), including:

          a. the nature and content of such communications;

          b. each mailing address, email address, instant message account, social networking account, and other electronic or online account from which such communications were sent;

          c.  each mailing address, email address, instant message account, social networking account, and other electronic or online account to which such communications were sent; and

          d. each intended recipient to which such communication was sent;

          3. Within 21 days of service of the Court’s order and judgment, to provide written confirmation to the Court and Plaintiffs’ counsel that Defendant has informed each intended recipient of an Impersonated Communication in writing that each such Impersonated Communication was in fact made by Defendant, including Defendant's true legal name, and that such Impersonated Communication was not made by any Plaintiff, or any family member, friend, or associate of any Plaintiff.

          IT IS SO ORDERED.

    4. Practice Pointers

      • A claimant is authorized to seek actual damages, injunctive relief, and declaratory relief under the act. RCW 4.24.790(3). As the statute does not set forth a limitations period, the Chavan court found that the three-year limitations period applicable for injury to property and fraud applies. RCW 4.16.080.

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  3. RCW 9.61.260 – Cyberstalking

    1. Introduction

      Washington recently passed RCW 9.61.260 to target electronic forms of communication within more traditional stalking or harassment laws. Cyberstalking is defined as the use of the internet, email or other electronic forms of communication to stalk another person, and it generally refers to a pattern of threatening or malicious behaviors. A perpetrator could be found guilty of misdemeanor or felony cyberstalking depending on the facts and circumstances at issue.

    2. Text of the Statute(s)

      (1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

      (a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;

      (b) Anonymously or repeatedly whether or not conversation occurs; or

      (c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

      (2) Cyberstalking is a gross misdemeanor, except as provided in subsection (3) of this section.

      (3) Cyberstalking is a class C felony if either of the following applies:

      (a) The perpetrator has previously been convicted of the crime of harassment, as defined in RCW 9A.46.060 [“Crimes included in harassment”], with the same victim or a member of the victim's family or household or any person specifically named in a no-contact order or no-harassment order in this or any other state; or

      (b) The perpetrator engages in the behavior prohibited under subsection (1)(c) of this section by threatening to kill the person threatened or any other person.

      (4) Any offense committed under this section may be deemed to have been committed either at the place from which the communication was made or at the place where the communication was received.

      (5) For purposes of this section, “electronic communication” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. “Electronic communication” includes, but is not limited to, electronic mail, internet-based communications, pager service, and electronic text messaging.

    3. Cases

      1. State v. Kohonen, 192 Wn. App. 567 (Wash. Ct. App. 2016)

      2. State v. Corbin, No. 71309-4-I (Wash. Ct. App. Mar. 30, 2015)

      3. State v. Bell, No. 70358-7-I (Wash. Ct. App. Sept. 22, 2014)

      4. Bykov v. Rosen, No. 68321-7-I (Wash. Ct. App. Aug. 12, 2013)

      5. Gordon v. Impulse Mktg. Group, Inc., No. CV-04-5125-FVS (E.D. Wash. May 19, 2006)

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  4. RCW 9.61.230, .240, .250 – Telephone Harassment

    1. Introduction

      A WMC victim who has been harassed over the telephone may bring a claim of telephone harassment. In the context of a WMC victim, if someone has taken photos of them without their consent, they could be harassed on the telephone with threats to make those images public. Where telephone calls involve text-messaging of unauthorized images, this statute might also come into play.

    2. Text of the Statute(s)

      • RCW 9.61.230 – Telephone harassment

        (1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:

        (a) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or

        (b) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or

        (c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;

        is guilty of a gross misdemeanor, except as provided in subsection (2) of this section.

        (2) The person is guilty of a class C felony punishable according to chapter 9A.20 RCW if either of the following applies:

        (a) That person has previously been convicted of any crime of harassment, as defined in RCW 9A.46.060, with the same victim or member of the victim’s family or household or any person specifically named in a no-contact or no-harassment order in this or any other state, or;

        (b) That person harasses another person under subsection (1)(c) of this section by threatening to kill the person threatened or any other person.

      • RCW 9.61.240 – Permitting telephone to be used

        Any person who knowingly permits any telephone under his or her control to be used for any purpose prohibited by RCW 9.61.230 shall be guilty of a misdemeanor.

      • RCW 9.61.250 – Offense, where deemed committed

        Any offense committed by use of a telephone as set forth in RCW 9.61.230 may be deemed to have been committed either at the place from which the telephone call or calls were made or at the place where the telephone call or calls were received.

    3. Cases

      1. State v. Lilyblad, 163 Wn.2d 1, 177 P.3d 686 (2008) (en banc)

        • Procedural Posture: Resolving court split between state appeals courts regarding the interpretation of the telephone harassment statute; on appeal from lower court’s reversal and remand for a new trial.

        • Law: RCW 9.61.230

        • Relevant Facts: Jury convicted defendant on one count of felony telephone harassment arising from a call she placed to paternal grandmother of her two sons (both of whom were living with the grandmother at the time). The women argued over the phone when grandmother said that the woman could not see her sons, and defendant started making threats. The grandmother then reported the call to the police. The jury had a question regarding the instructions about intent—they were unclear on when a defendant must form the intent to harass the victim.

        • Outcome: The court reversed the conviction. The court held that because the trial court had failed to properly instruct the jury that the defendant form the intent to harass the victim at the time he initiates the call to the victim, the conviction must be reversed (however, the holding did not bar retrial of the case).

        • Special Notes: An individual must have the intent to harass at the time of initiation of the threatening phone call in order to qualify as “telephone harassment” under the Washington statute. The case abrogated City of Redmond v. Burkhart, 99 Wn. App. 21, 27, 991 P.2d 717 (Wash. Ct. App. 2000) (holding that a “caller who forms the intent to harass, intimidate, torment, or embarrass at any point in a telephone conversation is subject to penalty under RCW 9.61.230”) (emphasis added).

      2. State v. Meneses, 169 Wn.2d 586, 238 P.3d 495 (2010) (en banc)

        • Procedural Posture: Defendant appealed from lower court affirmance of his conviction for four counts of felony telephone harassment, four counts of misdemeanor telephone harassment, and two counts of intimidating a witness.

        • Law: RCW 9.61.230; RCW 9A.72.110

        • Relevant Facts: Defendant, victim’s ex-boyfriend, regularly called the victim to curse at her, threaten her, etc. in order to try to see his children. He also told her that he would hurt her if she reported his calls to the police. The victim reported defendant to the police, and he was charged with felony and misdemeanor telephone harassment counts as well as the crime of witness intimidation. He asserted that his convictions should be reversed because: (1) he did not have the intent to harass her at the outset of the calls; (2) convictions for telephone harassment and witness intimidation arising from same allegations violate double jeopardy; and (3) he cannot be guilty of witness intimidation because never uttered a “true threat,” but rather, merely ranted to her; thus should be guilty of only “witness tampering,” a lesser-included offense of witness intimidation.

        • Outcome: The court affirmed the convictions and found that: (1) defendant had the requisite intent to harass at the outset of the call; (2) there was no double jeopardy violation because the witness intimidation threats and threats regarding the relationship arose from different behavior; and (3) defendant’s statements and “threat-like” rants constituted “true threats,” which in turn, can amount to intimidation under 9A.72.110.

    4. Practice Pointers

      • The underlying purpose of the statute is to protect the public from conduct “at the hands of persons who employ the telephone to torment others,” and from “the intrusion of unwanted telephone calls.”1

      • Under RCW 9.61.240, an individual can be guilty of telephone harassment even where they do not do the actual harassing, as long as they knew someone else was using their telephone for improper purposes.

      • The statute recognizes the problem where a person “thrust[s] an offensive and unwanted communication upon one who is unable to ignore it.”2

      • In Canada, a woman used an equivalent statute to win $30,000 in damages from an ex-lover colleague who continually harassed her through text messages.3

    1. Lilyblad, 163 Wn.2d at 11-12. ↩
    2. Id. ↩
    3. Gillian Shaw, “Vancouver-area woman wins harassment case over phone text messages,” Vancouver Sun (Feb. 17, 2011), available at http://www.vancouversun.com/technology/Vancouver+area+woman+wins+harassment+case+over+phone+text+messages/4302928/story.html (last visited Feb. 1, 2012). ↩
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  5. RCW Chapter 9.73 – State Privacy Act

    1. Introduction

      This Chapter of the Washington Revised Code relates to recordings of private conversations between inpiduals or groups of people. The statutes included in the Chapter prohibit the use of such recordings in litigation where they were obtained without the victim’s consent.

    2. Text of the Statute(s)

      • RCW 9.73.030 – Intercepting, recording, or divulging private communication – Consent required – Exceptions

        (1) Except as otherwise provided in this chapter it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

        (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;

        (b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

        (2) Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.

        (3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.

        (4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation.

      • RCW 9.73.050 – Admissibility of intercepted communication in evidence.

        Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080, or in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

      • RCW 9.73.060 – Violating right of privacy – Civil action – Liability for damages

        Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter, shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his or her business, his or her person, or his or her reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him or her on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed on thousand dollars, and a reasonable attorney’s fee and other costs of litigation.

      • RCW 9.73.080 – Penalties

        (1) Except as otherwise provided in this chapter, any person who violates RCW 9.73.030 is guilty of a gross misdemeanor.

        (2) Any person who knowingly alters, erases, or wrongfully discloses any recording in violation of RCW 9.73.090(1)(c) is guilty of a gross misdemeanor.

    3. Cases

      1. State v. Faford, 128 Wn.2d 476, 910 P.2d 447 (1996) (en banc)

        • Procedural Posture: Reversing and remanding trial court admission of evidence obtained from scanner monitoring of a cordless telephone call.

        • Law: RCW Chapter 9.73; Wash. Const. art. I, § 7

        • Relevant Facts: Defendants’ neighbor eavesdropped on the defendants’ cordless telephone calls using a scanner, and he overheard them discussing marijuana growing operation in their home. The neighbor then tipped off officers, and officers (without issuing Miranda warnings or getting the defendants’ consent) searched the premises and found marijuana in the house and marijuana growing in shed behind the residence. Defendants tried to bar the evidence under the Privacy Act, but the trial court determined that the Act did not apply to cordless telephones.

        • Outcome: The court reversed and remanded, determining that the Privacy Act encompasses cordless telephone calls and finding that the defendants had an expectation of privacy regarding their telephone calls. The court held that the trial court erred by admitting any testimony from defendants’ neighbor regarding the conversations he had intercepted and the accompanying visual observations of the suspect activity as well as the evidence subsequently seized by the police following the neighbor’s tips. The court explained that allowing that evidence “indisputably expanded the scope of the private illegal telephone interception,” and defendant never gave consent for the police to enter.1

        • Special Notes: The partial dissent/partial concurrence posited that the majority determination that the police evidence was inadmissible was incorrect because the neighbor’s violation of the Privacy Act should not have been imputed to the State where the State itself did not engage in any unlawful conduct; rather, the unlawful conduct was undertaken by the neighbor, a private party.2

      2. State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002) (en banc)

        • Procedural Posture: On appeal from decision affirming conviction and sentence of defendant on charges of attempted second degree rape of a child.

        • Law: RCW Chapter 9.73

        • Relevant Facts: Defendant engaged in email messaging and ICQ instant-messaging with a police officer posing as a 13 year-old girl, and arranged to meet her for sex.

        • Outcome: The court held that the evidence was admissible and there was no violation of the Washington Privacy Act because the defendant had impliedly consented to having his email and ICQ messages recorded on the computer. The court explained that it made no difference that “the recording was accomplished on a device that was used in the communication,”3 deeming it “a distinction without a legal difference.”4

        • Special Notes: The concurrence argued for a narrower view of the statute, which would require that the recording device be separate from the device for communication and believed that the majority improperly expanded the act to include email messages, etc.5 The concurrence distinguished computers—a device not designed expressly to record—from a different device, such as an audio-recorded.6 The concurrence also posited that interpreting the statute as the majority does would actually make emailing and ICQ messaging criminal because those messages are automatically “recorded” on a computer.7

      3. State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996) (en banc)

        • Procedural Posture: Washington Supreme Court granted petition to review appeal of ten consolidated cases by defendant drug dealers claiming that their conversations with an undercover agent regarding planned drug sales had been admitted in violation of the Washington Privacy Act.

        • Law: RCW 9.73.030; Wash. Const. art. IV, § 7; Fourth Amendment

        • Relevant Facts: The police arranged with a criminal informant to engage in drug trafficking in high traffic area to sell/buy crack cocaine, and the informant recorded his conversations with buyers/sellers. The drug convictions of ten defendants in consolidated matter were based on evidence obtained by the criminal informant’s recordings, and the trial court denied these defendants’ motions to suppress that evidence.

        • Outcome: The court affirmed the convictions and held that the Privacy Act did not apply because the conversations between the individuals and the criminal informant were not “private” as contemplated by the Act. The Court analyzed the nature of the conversations, and determined that they were not “private” because they: were brief, occurred between strangers on a public street, sometimes took place in front of third parties, and concerned terms of a routine illegal drug transaction.8 The Court also held that there is no expectation under the state or federal constitution where a criminal informant consents to the recording.9

      4. State v. Christensen, 153 Wn.2d 186, 102 P.3d 789 (2005) (en banc)

        • Procedural Posture: Washington Supreme Court granted petition to review lower court’s affirmance of the trial court’s decision admitting testimony of a mother regarding a conversation she intercepted between her daughter and the defendant, her daughter’s boyfriend.

        • Law: RCW 9.73.030

        • Relevant Facts: After notifying her daughter of the call, mother activated speakerphone while her daughter was speaking with her boyfriend on the cordless phone. Mother used the speakerphone to eavesdrop on her daughter’s conversation, and she heard them discuss boyfriend’s robbery of elderly lady. Mother reported the information about the robbery to the prosecutor, who used it as evidence against the boyfriend at a trial arising from the robbery charge.

        • Outcome: The court reversed the conviction and remanded for a new trial, determining that a cordless telephone conversation between defendant and his girlfriend about robbery was “private” under the Washington Privacy Act.10 The Court reasoned that the couple subjectively intended to have a private conversation. The defendant manifested that intent by asking to speak to his girlfriend after her mother first answered the phone, and defendant’s girlfriend manifested this intent by going into her bedroom with the cordless phone and closing the door behind her, so her mother could not hear the conversation.11

    1. Faford, 128 Wn.2d at 488-89. ↩
    2. See id. at 489-92 (Guy, J., concurring in part and dissenting in part). ↩
    3. Townsend, 147 Wn.2d at 674. ↩
    4. Id. at 674-75. ↩
    5. See id. at 680-85 (Bridge, J., concurring). ↩
    6. Id. at 682-83. ↩
    7. Id. ↩
    8. Clark, 129 Wn.2d at 227-31. ↩
    9. Id. at 221-22. ↩
    10. Christensen, 153 Wn.2d at 194. ↩
    11. Id. ↩
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  6. RCW Chapter 10.14 – Civil Harassment

    1. Introduction

      A WMC victim may seek to recover damages where he or she is continually harassed by an individual, regardless of their relationship with that individual (e.g. regardless of whether they are “household members”). An individual may also seek to obtain an anti-harassment order of protection under RCW 10.14.040 and 10.14.080 to prevent the perpetrator of a violation from continuing his or her intrusive conduct.

    2. Text of the Statute(s)

      • RCW 10.14.010 – Legislative finding, intent

        The legislature finds that serious, personal harassment through repeated invasions of a person’s privacy by acts and words showing a pattern of harassment designed to coerce, intimidate or humiliate the victim is increasing. The legislature further finds that the prevention of such harassment is an important governmental objective. This chapter is intended to provide victims with a speedy and inexpensive method of obtaining civil anti-harassment protection orders preventing all further unwanted contact between the victim and the perpetrator.

      • RCW 10.14.020 – Definitions

        (1) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. ‘Course of conduct’ includes, in addition to any other form of communication, contact, or conduct, the sending of an electronic communication, but does not include constitutionally protected free speech. Constitutionally protected activity is not included within the meaning of “course of conduct.”

        (2) “Unlawful harassment” means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child

      • RCW 10.14.030 – Course of conduct

        In determining whether the course of conduct serves any legitimate or lawful purpose, the court should consider whether:

        (1) Any current contact between the parties was initiated by the respondent only or was initiated by both parties;

        (2) The respondent has been given clear notice that all further contact with the petitioner is unwanted;

        (3) The respondent’s course of conduct appears designed to alarm, annoy or harass the petitioner;

        (4) The respondent is acting pursuant to any statutory authority, including but not limited to acts which are reasonably necessary to:

        (a) Protect property or liberty interests;

        (b) Enforce the law; or

        (c) Meet specific statutory duties or requirements;

        (5) The respondent’s course of conduct has the purpose or effect of unreasonably interfering with the petitioner’s privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner;

        (6) Contact by the respondent with the petitioner or the petitioner’s family has been limited in any manner by any previous court order.

    3. Cases

      1. Trummel v. Mitchell, 156 Wn.2d 653, 131 P.3d 305 (2006) (en banc)

        • Procedural Posture: Washington Supreme Court granted review of resident’s petition for review of decision affirming anti-harassment action against the resident and finding the resident in contempt for violating the trial court’s anti-harassment order.

        • Law: RCW 10.14.020

        • Relevant Facts: T was a difficult resident in a local public housing development, who would hand out leaflets, start fights, yell at residents and the manager, and engage in various other disruptive activities. He petitioned for a civil anti-harassment order of protection against M, the building administrator. M cross-petitioned. Several residents of the building filed declarations on behalf of Mitchell supporting his assertions as to T’s disruptive behavior, and describing several incidents in which T harassed and upset both M and various other residents. The court considered non-party resident declarations, and eventually found T in contempt for violating the anti-harassment orders when he posted information about certain residents on an internet web-site and then, when asked to take it down, posted the same information on an offshore (European) web-site, asserting that the court had no jurisdiction over such sites.

        • Outcome: The court partially vacated the lower court’s order because although T’s conduct was not constitutionally protected, a portion of the order asserting that he may not place the petitioner or other residents under “surveillance” were overly broad, and, therefore, the court had previously erred in finding T in contempt for purportedly violating those orders.1 The court overturned the two previous contempt orders and the order that T pay M’s attorney fees relating to the contempt proceedings.

        • Special Notes:

          • The trial court found that “[t]he term ‘surveillance’ is not broad enough to encompass the conduct of placing identifying information on a web site under the circumstances presented here,” and the modifications the court made provided relief to nonparties outside of the context of the public housing complex, which was therefore not under the court’s authority.2

          • The ACLU wrote an amicus brief on behalf of T in which the organization noted that in theory, a harasser could use communications to third parties to visit unwanted contact upon a victim—a harasser could impersonate a victim through a web page, inviting people to a nonexistent party at the victim’s house, for instance—but that such “surveillance” was not at issue here.3

      2. Burchell v. Thibault, 74 Wn. App. 517, 874 P.2d 196 (Wash. Ct. App. 1994)

        • Procedural Posture: Defendant appealed from lower court ruling holding excommunicated members of religious sect liable for civil harassment under statute.

        • Law: RCW 10.14.020

        • Relevant Facts: A Japanese Buddhist sect went through a rift, and the sect excommunicated several members on one side of the division. Two of the members who had been excommunicated from the local church decided to meet the high-level Reverend’s plane when he was arriving in Washington to confront him about their excommunication. Two of the non-excommunicated members were at the airport to ensure that the Reverend was not harassed when he arrived. When the Reverend arrived, there were repeated incidents of verbal communications, but the defendants made no threats, verbal abuse or menacing gestures. Plaintiff sued two excommunicated members of the religious sect, alleging that they had harassed him and the Reverend in violation of the civil harassment statute. Because the Reverend was merely an incidental victim and not a party to the actual case, no violation of the statute had occurred.

        • Outcome: The court reversed because there was no basis for a protective order aimed at the petitioner where the conduct was directed toward the Reverend rather than toward the plaintiff himself. The Court explained that if the Reverend had been a party to the case, the requisites of RCW 10.14.020 would be met, because the trial court could have found a “knowing and willful course of conduct directed at a specific person which seriously alarms, annoys or harasses such person, and which serves no legitimate or lawful purpose.”4 However, because he was not a party to the action, and the plaintiff himself was not a target of the conduct, no claim could lie.

        • Special Notes: Because the plaintiff was merely an incidental party to the harassment, but the harassment was not actually directed at him personally, he could not bring a claim under RCW 10.14.010. The court summarized the elements of the civil anti-harassment statute: (1) knowing and willful; (2) course of conduct; (3) directed at a specific person; (4) which seriously alarms, annoys or harasses such person; and (5) which serves no legitimate or lawful purpose.5

      3. Lau v. Villa, No. 55054-3-O, 2006 WL 1672905 (Wash. Ct. App. June 19, 2006)

        • Procedural Posture: Defendant appealed from the entry of protective order by the plaintiff against the defendant, a former roommate.

        • Law: RCW 10.14.020; RCW 10.14.080

        • Relevant Facts: Plaintiff petitioned for a protective order against defendant room-mate after she allegedly assaulted plaintiff by throwing a jacket at her and scratching her face. Court granted the protective order. On appeal, the court lifted order because it found that the allegations did not show a “course of conduct” given that it was only one incident rather than several different incidents.6

        • Outcome: The court reversed the entry of the order for the petitioner because the civil anti-harassment statute requires proof of a course of conduct. The court explained that because there was no “pattern” of conduct, the order had to be vacated.7

        • Special Notes: Emphasizes requirement that civil harassment consist of more than one single isolated incident to be the basis for a viable claim for relief under the statute.

    4. Practice Pointers

      • The statute was not intended to provide redress for past injury. Rather, the statute’s purpose is “to facilitate the issuance of ‘protection orders preventing all further unwanted contact between the victim and the perpetrator. RCW 10.14.010. An incidental victim not the target of harassment does not require protection from further unwanted contact.”8

      • The major difference between the criminal harassment statute and the civil harassment statute is that “[a]lthough the two statutes have virtually identical preambles, the civil statute defines ‘unlawful harassment’ as a ‘knowing and willful course of conduct . . .” RCW 10.14.020(1) . . . . Given the omission of any reference to ‘course of conduct’ in RCW 9A.46.020, we must presume that the Legislature consciously chose to criminalize a single act rather than a course of conduct.”9

      • As noted above, RCW 10.14.080 allows for civil protective orders, following the filing of a petition by the complainant.

    1. Trummel, 156 Wn.2d at 675. ↩
    2. Id. at 653. ↩
    3. Id. at 663. ↩
    4. Burchell, 74 Wn. App. at 521-22. ↩
    5. Id. at 522-23. ↩
    6. Lau, 2006 WL 1672905 at *1. ↩
    7. Id. at *2. ↩
    8. Burchell, 74 Wn. App. at 523. ↩
    9. Lau, 2006 WL 1672905 at *2. ↩
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  7. RCW 63.60.010, et. seq. – Use of name, voice, signature, photograph, or likeness

    1. Introduction

      The statute recognizes a property right in every individual in the use of his or her name, voice, signature, and likeness. The right is retroactive to January 1, 1948, and it is transferable by any legal means of inter vivos or testamentary disposition. In 2008, the legislature extended the right to deceased individuals. Although there have been no cases involving RCW 63.60.010 and factual scenarios similar to that experienced by a typical WMC plaintiff, a WMC victim could potentially use the statute to prevent someone from using the victim’s likeness without his or her knowledge or permission.

    2. Text of the Statute(s)

      • RCW 63.60.010 – Property right – use of name, voice, signature, photograph or likeness

        Every individual or personality has a property right in the use of his or her name, voice, signature, photograph, or likeness. Such right exists in the name, voice, signature, photograph, or likeness of individuals or personalities deceased before, on, or after June 11, 1998. This right shall be freely transferable, assignable, and licensable, in whole or in part, by any otherwise permissible form of inter vivos or testamentary transfer, including without limitation a will or other testamentary instrument, trust, contract, community property agreement, or cotenancy with survivorship provisions or payable-on-death provisions, whether the will or other testamentary instrument, trust, contract, community property agreement, or cotenancy document is entered into or executed before, on, or after June 11, 1998, by the deceased individual or personality or by any subsequent owner of the deceased individual's or personality’s rights as recognized by this chapter; or, if none is applicable, then the owner of the rights shall be determined under the laws of intestate succession applicable to interests in intangible personal property. The property right does not expire upon the death of the individual or personality, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property right. The right exists whether or not it was commercially exploited by the individual or the personality during the individual's or the personality's lifetime. The rights recognized under this chapter shall be deemed to have existed before June 11, 1998, and at the time of death of any deceased individual or personality or subsequent successor of their rights for the purpose of determining the person or persons entitled to these property rights as provided in RCW 63.60.040. This chapter is intended to apply to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death.

      • RCW 63.60.060 – Infringement of right – Superior courts – Injunctions – Liability for damages and profits – Impoundment – Destruction – Attorneys’ fees.

        (1) The superior courts of this state may grant injunctions on reasonable terms to prevent or restrain the unauthorized use of the rights in a living or deceased individual’s or personality’s name, voice, signature, photograph, or likeness.

        (2) Any person who infringes the rights under this chapter shall be liable for the greater of one thousand five hundred dollars or the actual damages sustained as a result of the infringement, and any profits that are attributable to the infringement and not take into account when calculating actual damages. To prove profits under this section, the injured party or parties must submit proof of gross revenues attributable to the infringement, and the infringing party is required to prove his or her deductible expenses. For the purposes of computing statutory damages, use of a name, voice, signature, photograph, and/or likeness in or related to one work constitutes a single act of infringement, regardless of the number of copies made or the number of times the name, voice, signature, photograph, or likeness is displayed.

        (3) At any time while an action under this chapter is pending, the court may order the impounding, on reasonable terms, of all materials or any part thereof claimed to have been made or used in violation of the injured party’s rights, and the court may enjoin the use of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.

        (4) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all materials found to have been made or used in violation of the injured party’s rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.

        (5) The prevailing party may recover reasonable attorneys’ fees, expenses, and court costs incurred in recovering any remedy or defending any claim brought under this section.

        (6) The remedies provided for in this section are cumulative and are in addition to any others provided for by law.

    3. Cases

      1. Dale v. Coors Brewing Co., No. 48892-9-L, 2002 WL 1898162 (Wash. Ct. App. Aug. 19, 2002)

        • Procedural Posture: On appeal from grant of summary judgment to defendant Coors Brewing Company on plaintiffs’ claims

        • Law: RCW 63.60.060; common law invasion of privacy (misappropriation); unfair competition

        • Relevant Facts: Plaintiff, a horse barrel racer, signed a contract in 1997 to endorse Coors Beer and had several photographs for her advertisements in Coors’ Point of Sale (“POS”) brochures, which were given to retailers and distributors; once they were provided to third parties, these brochures no longer belonged to Coors. Coors terminated Dale’s contract at the end of the year and promised to stop using her image by the end of the summer 1998. She claimed that she saw several items containing her photo after that point and sued for damages for the unauthorized use of her image. The trial court found that no misappropriation had occurred because plaintiff had consented to the continued use of her image on the POS after the employment ended. There was evidence that she knew that the POS may still be used after her contract had expired: the evidence showed that she “knew the nature of the POS, knew how it was used and sold to distributors, and was aware that it essentially was merchandise that no longer belonged to Coors once sold. Dale entered a service contract with Coors that was silent on the issue of POS and that placed no restrictions on the use of her photographs. At no point did Dale seek to limit the use of the existing POS or question what would happen to it, even as she acquired more information about her job, and the system of beer distribution and advertisement during the course of her employment.”1

        • Outcome: The court affirmed summary judgment for the defendant and awarded defendant attorney’s fees for plaintiff’s suit because RCW 63.60.060(5) provides “that a party may recover attorney fees incurred in defending any claim under Washington’s misappropriation statute.”2 The court found that the evidence strongly supported the lower court’s determination that plaintiff knew what would happen with her images, etc. after the actual contract had expired.

      2. Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104 (W.D. Wash. 2010)

        • Procedural Posture: On defendant’s motion to strike plaintiff’s state law copyright infringement, invasion of privacy and misappropriation claims under the Washington Act Limiting Strategic Lawsuits against Public Participation (“Anti-SLAPP”) statute (RCW 4.24.510), which protects complaints arising from protected activity.

        • Law: invasion of privacy (misappropriation); RCW 4.24.510 (Wash. Anti-SLAPP statute)

        • Relevant Facts: Copyright owner of 52 seconds of home video footage of an individual regarding his experience receiving treatment for his injured shoulder sued director Michael Moore and his production company for using that specific 52 seconds of footage without his permission (though the production company did have the written permission of the actual patient undergoing the treatment) in the documentary film Sicko, a documentary that dealt with patients receiving health care in the U.S. and abroad. Plaintiff sued for invasion of privacy and misappropriation of likeness under Washington state law.

        • Outcome: The court dismissed plaintiffs’ state-law claims under the Anti-SLAPP suit because the material was protected by the First Amendment—there is a public interest in national/international health care (speech is of public significance). Accordingly, the publication of the material constituted an exercise of defendant’s right of free speech concerning an issue of public interest. The court also found that the essence of plaintiff’s state-law claims arose under the Copyright Act, and were also subject to dismissal under the Anti-SLAPP suit. Finally, the court dismissed plaintiff’s common law invasion of privacy suit because plaintiff’s image and voice were not intimate details of his private life or within the zone of privacy; thus they too were subject to dismissal under the Anti-SLAPP suit.

        • Special Notes: The Anti-SLAPP statute played an important role in this matter. Under the Anti-SLAPP law, once an individual shows that the material he published was protected under the First Amendment, the plaintiff must show by clear and convincing evidence that it was probable he’d prevail on the state-law claims. Accordingly, the state-law claims were subject to dismissal, and defendant was entitled to attorney fees, costs and a $10,000 statutory award under the provisions of the Anti-SLAPP law.3

    4. Practice Pointers

      • RCW 63.60.070 provides a list of specific exemptions from the statute, specifically, in situations where individuals have contracts authorizing the use of their likeness, etc.

      • Washington enacted a new Anti-SLAPP law in 2010.4 The law was intended to provide a procedural safeguard against unwanted defamation suits and similar claims based on news content and other speech. The law allows someone to file a motion to strike a complaint brought against him or her for engaging in protected speech or petition activity where the speech at issue involved an issue of public concern.

      • Washington courts have yet to explicitly rule on whether the Internet is a “public forum.” However, Washington’s Anti-SLAPP law is explicitly modeled on California’s statute, and Washington federal courts have considered California law in interpreting Washington’s statute. While California law is not binding on Washington courts, it may be persuasive, and in California, a publicly accessible website is a public forum.5

    1. Dale, 2002 WL 1898162 at *5. ↩
    2. Id. at *6. ↩
    3. Aronson, 738 F. Supp. 2d at 1117. ↩
    4. RWC 4.24.525 (2010). ↩
    5. See Citizen Media Law Project, “Anti-SLAPP Law in Washington,” available at http://www.citmedialaw.org/legal-guide/anti-slapp-law-washington (last visited Feb. 1, 2012). ↩
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