In Huon v. Breaking Media, LLC, 2014 WL 6845866 (N.D.Ill. 2014), an Illinois attorney sued law blog Above the Law (ATL) and womens’-interest blog Jezebel.com, for reporting on the plaintiff’s arrest and subsequent trial on sexual assault and witness intimidation charges.
The plaintiff was criminally charged after he met a woman responding to a Craigslist ad where the plaintiff claimed he was a talent scout for a modeling agency. (Now that doesn’t sound sketchy at all!!) (Cough.)
While the sex assault charge was pending, the plaintiff was separately accused of witness tampering. The plaintiff was eventually acquitted of both charges after a three-day trial.
Plaintiff sued the two blogs after they published articles discussing the charges’ underlying allegations and the eventual trial result.
The plaintiff claimed the various blog articles and some hostile user/reader comments to the articles impugned his integrity causing him to lose clients. The plaintiff sued for various privacy tort and cyberbullying claims and the blog defendants moved to dismiss all counts. The Northern District dismissed most of the plaintiff’s claims.
Intrusion on Seclusion
To state a claim for this tort, the plaintiff must allege (1) an unauthorized intrusion or prying into a plaintiff’s seclusion; (2) the intrusion is highly offensive or objectionable to a reasonable person; (3) the matters upon which the intrusion occurred were private; and (4) the intrusion caused anguish and suffering.
Prototypical examples of this tort include opening a person’s mail, searching someone’s wallet or safe and reviewing a person’s banking information. *14.
The court found that Plaintiff’s intrusion on seclusion claim based on user comments to the defendants’ article were protected by the Communications Decency Act, 47 U.S.C. 230(c)(1)(CDA), a statute that immunizes websites that simply republish information supplied by third parties.
Since the user comments – while offensive – couldn’t be attributed to the defendants under the CDA, the intrusion claim failed. The court noted that in relation to the readers who posted comments on the blog articles, the defendants were simply “online information systems” that are not publishers under the CDA (see 47 U.S.C. 230(f).
Plaintiff’s argument that the blog defendants “incited” offensive user comments also failed. The court found that a website doesn’t incite unlawful comments simply by providing a forum for content. In addition, both defendants had detailed written policies that outlawed defamatory comments. Taken together, these facts defeated plaintiff’s “incitement” arguments. **4-5
The Court also dismissed the intrusion claim since the plaintiff at most alleged irresponsible (“shoddy”) journalism practices. He didn’t plead that either defendant pried into his personal affairs or violate any of his physical boundaries – an indispensable aspect of the intrusion tort. *14.
Intentional Infliction of Emotional Distress
This claim also failed. An intentional infliction plaintiff must demonstrate (1) extreme and outrageous conduct that goes beyond all bounds of decency in a civilized community, (2) the defendant intended to inflict severe emotional distress on the plaintiff or know there was a high probability that the conduct would cause severe emotional distress; and (3) the conduct must in fact cause severe emotional distress.
Where intentional infliction is premised on published statements, if those statements don’t rise to the level of defamation, they necessarily can’t meet the even higher extreme and outrageous standard. *15
Here, the claims against the Jezebel blog defendants didn’t rise to the level of libel or extreme and outrageous conduct since the Jezebel posts were protected by the fair reporting privilege and because some of the content consisted of opinions, not facts.
But plaintiff did state a colorable intentional infliction claim against ATL for falsely reporting that plaintiff was charged with sexual assault twice (instead of once).
ATL’s false statement that plaintiff had multiple sex assault arrests was defamatory per se – a false statement imputing the commission of a crime – plaintiff adequately alleged a cause of action for intentional infliction of emotional distress against ATL (as well as defamation).
– Intrusion on Seclusion requires physical invasion of the plaintiff’s space or private domain;
– An online republisher isn’t responsible for provocative reader comments where it has written policies that outlaw offensive content;
– Inaccurate reporting doesn’t rise to the level of intrusion on seclusion or intentional infliction of emotional distress;