Oct 122009
 
 October 12, 2009  Breaches, Court, U.S.

Defendant took pictures of his ex-girlfriend “engaged in various sex acts with two other people.” Later he emailed some of the photos to his ex-girlfriend’s mother, ex-husband, ex-in laws, boss and co-workers.

The ex-girlfriend sued for intentional infliction of emotional distress and invasion of privacy. Defendant moved for summary judgment.

[…]

Plaintiff claimed two forms of invasion of privacy — intrusion upon seclusion and publication of private facts. The court held she had presented enough facts for the latter but not the former.

The court granted Defendant’s motion for summary judgment as to intrusion upon seclusion because no intrusion occurred. Plaintiff knew Defendant was there taking pictures of the activities. The court rejected Plaintiff’s argument that publication of the no doubt intimate photos constituted intrusion. It held that the disclosure of properly obtained information could not give rise to the claim.

But as to the argument that emailing the photos unlawfully publicized private facts, the court sided with Plaintiff. Defendant had argued that emailing the photos to only a half dozen or so people did not amount to “publication,” which is one of the elements of the tort. He pointed to Comment “a” of the Restatement (Second) of Torts §652D which says that “it is not an invasion of the right of privacy to communicate a fact . . . to a single person, or even to a small group of people.”

In rejecting this argument, the court engaged in what some might characterize as “Internet exceptionalism,” — applying the law in response to a perceived substantial difference between online and offline communication.

Read more on Internet Cases.

The case is Peterson v. Moldofsky, No. 07-2603, 2009 WL 3126229 (D.Kan. September 29, 2009)

Hat-tip, Legal Blog Watch.

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