Cyberlaw and Torts- Module 4 of 5

Cyberlaw and Torts- Module 4 of 5


Module 4: Cyberlaw and Torts

 

            Over the past twenty years, the Internet has revolutionized how we perform our daily tasks. It’s no longer just a portal for information: it’s a global marketplace that’s open 24 hours a day, 365 days a year. It’s “a shopping mall, community center, bank, insurance broker, grocery store, and news source.”[1]

            At the same time, cyberspace has become a forum for unscrupulous people to conduct harmful activities.[2] Cybertorts are harms that a person or business commits over the Internet.[3] One recent example concerned two New Jersey residents who used “aggressive, misleading, and deceptive” sales tactics on their website to dupe senior citizens into purchasing emergency alert systems that often were never delivered, did not work properly or could not be activated where the consumers lived.[4]

In this module, we will scrutinize cybertorts. We’ll present some of the most common legal injuries suffered over the Internet and remedies for victims. 

Invasion of Privacy

While the Internet has improved the lives of many people, the lack of privacy with technology raises concerns. The development of new technologies for harvesting personal information creates the potential for widespread invasions of privacy. 

Invasion of privacy can be based on four possible claims: 

·         unreasonable intrusion upon the seclusion of another;

·         publicity that unreasonably places a person in a false light before the public;

·         misappropriation of a person’s name or likeness; or

·         public disclosure of private facts.[5]

One court summed up the right to privacy as conferring “upon people the most important right of all - the right to be left alone.[6] It also includes the right to be free from unwarranted publicity and to live without unwarranted interference by the public.[7] The purpose of the privacy right is to give a person a sphere of life from which to exclude others.[8]

Intrusion upon seclusion takes place when a person intentionally intrudes upon the solitude or seclusion of another or his private affairs or concerns.

The elements for intrusion upon a plaintiff’s seclusion or solitude are: 

·         an intentional intrusion by the defendant;

·         into a matter which the plaintiff has a right to keep private; and

·         using a method which is objectionable to the reasonable person.[9]

The plaintiff must show that the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about the plaintiff.[10] A plaintiff must prove that he had an objectively reasonable expectation of privacy in the place, conversation, or data source.[11]

Internet activity and improper data collection may lead to an invasion of privacy claim for intrusion upon seclusion. One class-action lawsuit for invasion of privacy was brought by parents of children younger than 13 against Viacom in 2016.[12] In that case, the children’s representatives asserted that they visited, accessed, and browsed Nick.com, a website geared towards children that offers streaming videos and interactive games. The children registered to use Nick.com by signing up for an account. During registration, the children provided personal information such as their birth date and gender to Viacom. Viacom also provided the following disclaimer during registration: “HEY GROWN-UPS: We don't collect ANY personal information about your kids. Which means we couldn't share it even if we wanted to![13]

Despite this disclaimer, Viacom allegedly distributed the information on Nick.com to Google, which then tracked users across the website and placed advertisements targeting the plaintiffs. The court held that these facts were sufficient to state an intrusion upon seclusion claim under New Jersey law. Here, it’s reasonable to believe that Viacom created an expectation of privacy with respect to browsing activity on the Nickelodeon website with the disclaimer.[14] Also, Viacom’s intrusion into the website users’ privacy was “highly offensive to the ordinary reasonable” person, as Viacom may have encouraged parents to permit their children to browse Nick.com under false pretenses with the disclaimer to which it didn’t adhere. Such duplicitous tactics would offend the reasonable person.[15]

The second type of invasion into privacy is when a person publicly places another in false light. To establish this claim, a plaintiff must prove that:

·         the false light in which the other was placed would be highly offensive to a reasonable person; and

·         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.[16]

In Meyerkord v. Zipatoni Co., the Missouri Court of Appeals applied false light in a case involving an online viral marketing scheme for Sony’s PlayStation Portable system.[17] The defendant employed the plaintiff and listed him as a “registrant” for Zipatoni’s websites. Three years after he left this job, Zipatoni registered www.alliwantforxmasisapsp.com and listed Meyerkord as the website’s registrant, even though he was not involved in creating the website, which was then used during a viral marketing campaign initiated by Sony to sell its PSP.   

Shortly after the PSP campaign became active, consumers began voicing their “concern, suspicion, and accusations over the campaign and those associated with it,” including Meyerkord. He filed an action against Zipatoni for false light because it failed to remove him as the registrant for the website. He alleged the content of www.alliwantforxmasisapsp.com was “publicly attributed” to him and that his “privacy has been invaded, his reputation and standing in the community has been injured, and he has suffered shame, embarrassment, humiliation, harassment, and mental anguish.”[18] Though the court didn’t rule on whether the plaintiff proved false light, the claim did meet the requirements for alleging its elements because it was offensive to associate him with the viral marketing campaign and because it was reckless to keep the plaintiff’s name associated with the website though he hadn’t worked for the company for three years.

The third type of invasion of privacy is misappropriation of a person’s name or likeness, which occurs when a person appropriates to her own use or benefit the name or likeness of another.[19] Like false light, misappropriation often arises in the context of online marketing schemes.

One claim involved professional golfer John Daly, who successfully asserted that a golf equipment maker had misappropriated his name and likeness on its equipment and website to directly promote and sell the golf equipment without first obtaining his consent.[20] 

Finally, let’s discuss public disclosure of private facts, which occurs when someone gives publicity to a matter concerning the private life of another. The three elements for invasion of privacy based on public disclosure of private facts are: 

·         that there must be a public disclosure;

·         the facts disclosed must be private (and not newsworthy); and

·         the matter made public must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.[21]

Public disclosure of private facts in cyberspace often occurs when a person reveals private information on a website or an online social networking site, such as Facebook or Twitter. In one instance, a Florida jury returned a verdict of over $140 million in favor of professional wrestler Terry Bollea, also known as “Hulk Hogan,” against Gawker Media, after Gawker posted a video online of Bollea engaged in private sexual activities without his knowledge or consent.[22] 

Other cases of public disclosure of private facts on the Internet have included revealing a person’s HIV positive status, sexual abuse of a minor, rape, abortion, in vitro fertilization, domestic abuse, plastic surgery and resulting facial scarring and other private medical conditions.

Right of Publicity

The right of publicity is a tort related to the invasion of privacy tort for misappropriation. The right of publicity is a person’s right to control the commercial use of his identity.[23] A person can bring a tort claim when someone else uses the person’s identity for commercial purposes without the person’s consent. Many states have enacted laws laying out what this tort protects and what constitutes violations. Under the laws of certain states, including New York, a written release is necessary whenever a person’s name, picture, likeness or voice is used in a “commercial” context or used for advertising or promotion or for any purposes of trade.[24]

On occasion, the First Amendment freedom of speech outweighs the right of publicity. In one 2007 case, a federal appeals court held that a provider of online fantasy baseball games could , without a license, use baseball players’ names and statistics in connection with its fantasy baseball products.[25] The court held that the use of the players’ names and statistics did violate their rights of publicity. However, the online fantasy sports league enjoyed a First Amendment right to use the players' names and records that prevailed over any right of publicity.[26]

The ever-increasing use of social media creates potential liability for violating the right of publicity. For example, the number of new Instagram users increased by 150 million, year over year, between 2014 and 2018, as users are posting millions of photos of themselves daily.[27] As such, there’s more of an opportunity for a dishonest person to use another’s name, photograph, and likeness without consent for commercial purposes. In a suit brought against Facebook, a federal court in California held that members of the social network website sufficiently alleged injury under California’s right of publicity statute when they claimed that they suffered “mental anguish” when Facebook allegedly used their names, photographs, and likenesses without their consent, for purposes of endorsements of third-party products or services to other members.[28]


Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress can be sustained when someone posts derogatory, profane or highly offensive comments on a website. To be actionable, it must result in a plaintiff suffering from severe emotional distress based on extreme and outrageous conduct, which means conduct that offends the generally accepted standards of decency and morality and must have intended to cause the victim severe emotional distress.[29]

Victims of online abuses, such as cyberbullying, may file lawsuits for intentional infliction of emotional distress.[30] In a lawsuit involving Snapchat, the family of a Pennsylvania teen sued Sean Davis, a professional football player for the Pittsburgh Steelers, after he posted a video on social media mocking the boy who waited on Davis at a Chick-Fil-A drive-thru.[31] In the video and audio recording, posted to Davis’ Snapchat account, he said “Chick-fil-A got little kids. This kid like eight years old. No wonder the lines be so long at Chick-fil-A.” The video also incorporated an emoji of a face laughing until tears were flowing out of its eyes. Due to this video, classmates teased the boy for weeks and his attorney claimed that he has since suffered from anxiety and depression.


Misrepresentation

Finally, let’s look at fraudulent misrepresentation, which is a cause of action often associated with online purchases. Fraudulent misrepresentation is defined as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to her detriment. The plaintiff must allege: 

·         that the defendant made a representation that he knew was false;

·         that the misrepresentation was made with the intention that the plaintiff rely on it;

·         that the plaintiff reasonably relied on the misrepresentation; and

·         that the plaintiff suffered harm because of the misrepresentation.[32]

In one case, a group of consumers alleged that Vizio had committed fraud when it failed to disclose to consumers that its Smart Interactivity software collects and discloses consumers’ viewing histories as well as personally identifiable information related to their Vizio Smart TVs and other devices connected to the same Wi-Fi network.[33] The court dismissed the case, though, reasoning that the plaintiffs had failed to show that they bought the televisions while reasonably relying on Vizio’s promise not to monitor their viewing histories. 


Remedies 

A plaintiff in a tort action may recover both money damages and injunctions. Compensatory damages in tort cases generally include reimbursement for monetary loss as well as damages for intangible elements of injury such as pain and suffering, emotional distress, and humiliation. Sometimes, a plaintiff can recover millions of dollars in damages, including punitive damages, if he wins a lawsuit. In a case against Gawker Media involving online dissemination of a private video, the jury returned a verdict in favor of a celebrity for $55 million in economic damages, plus $60 million in emotional distress damages, plus punitive damages of $15 million, and $10 million against a second defendant for a total award of $140 million.[34]

To obtain an injunction, the plaintiff must show that monetary damages are insufficient.[35] A court will consider whether the plaintiff suffers irreparable harm, the likelihood of success, the balance of hardships, and the public interest in deciding whether to grant an injunction. In a cyberlaw tort case, a court may issue an injunction to take down a website or to remove specific content from a website.

In our final module on cyberlaw, we’ll look at the limits of free speech in the online world by learning about criminal and civil liability for defamatory statements made over the Internet.

 



[1]Jay C. Carle & Henery H. Perritt, Civil Liability on the Internet, GPSolo Magazine (Jan,/Feb. 2006), https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/civilliability.html.

[2] MichaelRustad, Rebooting Cybertort Law, 80 Wash. L. Rev. 335, (2005).

[3] What is a cyber tort?, Millstone Peterson & Watts, LLP (June 17, 2016), https://www.mpwlaw.net/blog/2016/06/what-is-a-cyber-tort.shtml.

[4] Kimberly Bosco, NJ Division of Consumer Affairs Settles Fraud Lawsuit (April 26, 2018), https://www.jerseyshoreonline.com/monmouth-county/nj-division-of-consumer-affairs-settles-fraud-lawsuit/.

[5] Invasion of Privacy, FindLaw, https://injury.findlaw.com/torts-and-personal-injuries/invasion-of-privacy.html (last visited June 22, 2018).

[6] State v. Kam, 69 Haw. 483, 492 (1988).

[7] 62A Am. Jur. 2d Privacy § 1.

[8] 62A Am. Jur. 2d Privacy § 1.

[9] 62A Am. Jur. 2d Privacy § 34.

[10] 62A Am. Jur. 2d Privacy § 36.

[11] Id.

[12] In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016).

[13] Id. at 269.

[14] Id. at 293.

[15] Id.

[16] Neal v. Elec. Arts, Inc., 374 F. Supp. 2d 574, 579 (W.D. Mich. 2005) (internal citations omitted).

[17] Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 321 (Mo. Ct. App. 2008).

[18] Id. at 325.

[19] Restatement (Second) of Torts § 652C.

[20] John Daly Enterprises, LLC v. Hippo Golf Co.,Inc., 646 F. Supp. 2d 1347, 1349 (S.D. Fla. 2009).

[21] Restatement (Second) of Torts § 652D.

[22] Bollea v. Gawker Media, 2012 WL 5509624 (M.D. Florida Nov. 14, 2012); Robert Wood, Hulk Hogan Settles $140 Million Gawker Verdict for $31 Million, IRS Collects Big, Forbes, (Nov. 3, 2016),https://www.forbes.com/sites/robertwood/2016/11/03/hulk-hogan-settles-140-million-gawker-verdict-for-31-million-irs-collects-big/#24afe8146e84.

[23] 1 Rights of Publicity and Privacy § 3:1 (2d ed.).

[24] N.Y. Civ. Rights Law §§50-51.

[25] C.B.C. Distribution & Mktg., Inc. v.Major League Baseball Advanced Media, L.P., 505 F.3d 818, 824 (8th Cir. 2007).

[26] Id. at 824.

[27] Number of Monthly Active Instagram Users From January 2013 to June 2018 (in millions), Statista,https://www.statista.com/statistics/253577/number-of-monthly-active-instagram-users/(last visited June 25, 2018).

[28] Fraley v. Facebook, Inc., 830 F. Supp. 2d 785, 791-92, 806 (N.D. Cal. 2011).

[29] Loftus v. Nazari, 21 F. Supp. 3d 849, 856 (E.D. Ky. 2014).

[30] Shira Auerbach, Screening Out Cyberbullies: Remedies For Victims On The Internet Playground, 30 Cardozo L. Rev. 1641, 1647 (2009).

[31] Paula R. Ward, Wexford Family Sues Steelers Player Sean Davis Over Snapchat Video Taken at Chick-fil-A, Pittsburg Post-Gazette, (Feb. 26, 2018) http://www.post-gazette.com/local/north/2018/02/26/Lawsuit-Pittsburgh-Steeler-Sean-Davis-Chick-fil-A-Snapchat-Cranberry-Allegheny-County-Butler-County/stories/201802260153. 

[32] Fraudulent Misrepresentation, Legal Information Institute, https://www.law.cornell.edu/wex/fraudulent_misrepresentation(last visited June 25, 2018).

[33] In re Vizio, Inc., Consumer Privacy Litig., 238 F. Supp. 3d 1204, 1211, 1231 (C.D. Cal. 2017).

[34] Charles J. Harder, Privacy, the First Amendment and Hulk Hogan's $140.1 Million Jury Verdict, 43 Rutgers Computer & Tech. L.J. 1, 2 (2017).

[35] Doug Rendleman, The Inadequate Remedy at Law Prerequisite for an Injunction, College of William & Mary Law School (1981).