Group sex photos case heads to trial

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

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. The court denied the motion in large part.

Infliction of emotional distress

Defendant argued that the court should toss the intentional infliction of emotional distress claim because Plaintiff ex-girlfriend failed to show that Defendant’s conduct was sufficiently extreme and outrageous, and that the alleged distress exceeded what a reasonable person would experience in the circumstances.

The court rejected Defendant’s arguments. It found that an average citizen would think emailing photos of a person engaged in a manage a trois to one of the participants’ mother, among others, was outrageous. Moreover, Plaintiff’s distress was shown to be severe, as she had to get counseling. It sounds as if the court would have found it severe enough even without the counseling — Defendant’s conduct was “so shocking and outrageous as to give rise to an inference of severe emotional distress.”

Invasion of privacy

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. The court observed that “the Internet enables its users to ‘quickly and inexpensively’ surmount the barriers to generating publicity that were inherent in the traditional forms of communication.” Finding this distinction to be significant, the court held that distribution of the photos even to a small group of people through the private means of electronic mail could be considered a “publication” for purposes of the tort of invasion of privacy.

Threesome photo courtesy Flickr user curgoth under this Creative Commons license.