Teacher’s aide Hollie Toups, 32, says that she was actually approached in a store after someone identified her as featured on the site. Now she and 25 other women are suing the website and its owner. The owner, however, goes by a fictitious name.
Notably, the complaint states that the website refused to remove the photos unless they paid a fee. The complaint is based on a class action and invokes joint and several liability. The Plaintiffs claim intrusion upon seclusion, public disclosure of private fact, wrongful appropriate of name or likeness, false light, negligence, intentional infliction of emotional distress, and civil conspiracy under Texas law. The complaint is fairly bare bones.
The use of a class action could be challenged on the basis of a lack of commonality or typicality based on the different underlying facts. These cases of disclosure are often mixed with questions of consent or assumption or plaintiffs’ conduct. If a person gives another person a revealing photograph, the question becomes the expectations or protected interests of such individuals. Many such pictures are taken with the assumption that they would not be shared but there is no guarantee. Also, if someone takes revealing pictures and gives them to a third party, can you claim intrusion upon seclusion or the public disclosure of private facts? To what extent do those claims depend on proof of an agreement that the photos would not be shared? That could create difference among class members. A court could find that those differences are not determinative given the lack of consent to appear on the site, particularly with regard to appropriation of name or likeness claims. Even if not appropriate for a class action, it would seem clear that some of these women have liable privacy claims.
The false light claim is interesting but unexplained. The site is billed as based on revenge. Thus, it seems unlikely that people would think that these women actually posed for porn, but it could be part of the claim.
The claim against GoDaddy could turn on federal rather than state law — and a question of preemption. The case will turn on whether the site is protected under the Communications Decency Act, which has been used repeatedly by Web providers to bar liability. These cases highlight the protection given to Internet companies like Craigslist and Facebook from defamation lawsuits. Under a federal law and the ruling in Zeran. The Communications Decency Act. Section 230 of the 1996 Act gives protections to online service providers from being sued for the actions of others. That section states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Kenneth Zeran sued America Online for negligence. On April 25, 1995, an unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-shirts.” It was a prank that featured offensive products about the Oklahoma bombing and told interested buyers to call “Ken” at Zeran’s home phone number in Seattle. Zeran notified AOL in a series of telephone calls and letters about the bogus posting. But AOL allegedly refused to take down the material. Then the prankster put more messages on the site from Ken, not only producing more calls but leading an announcer for the Oklahoma radio station KRXO to read the messages and encouraged listeners to call Zeran.
The Fourth Circuit held that Section 320 blocked any liability, even if AOL was informed of the falsity and harmfulness of the information. It was a very harsh decision but it has been applied by other circuits.
Any way you cut it, this should be an interesting lawsuit. It is the inverse image of the “Dontdatehimgirl.com” lawsuit, though that lawsuit involved allegedly defamatory statements as opposed to pornographic images.
The Plaintiffs will likely be able to track down the owner through subpoenas and discovery. It is a worthy lawsuit against this individual, though the liability of GoDaddy seems questionable in light of Zeran unless they can find a way around it.
Source: CBS