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Tuesday, February 10, 2009

Missouri Court of Appeals Remands False Light Case To Allow Plaintiff To Amend Petition

The Missouri Court of Appeals is remanding a false light case and may allow it to proceed in Meyerkord v. Zipatoni.

Plaintiff, Greg Meyerkord (“  Meyerkord”), appeals from the judgment dismissing Meyerkord's action for false light invasion of privacy against defendant, The Zipatoni Co. (“  Zipatoni”). Meyerkord contends his claim represents the “classic case” of false light invasion of privacy. We vacate and remand.

Some time prior to early 2003, Meyerkord was employed by Zipatoni, a Missouri corporation that provides marketing services to businesses, and was listed as the “registrant” for Zipatoni's account with Register.com for the purpose of the registration of websites. Meyerkord's employment with Zipatoni ended in 2003.

In 2006, Zipatoni registered www.alliwantforxmasisapsp.com through Register.com. Meyerkord was listed as the registrant for www . alliwantforxmasisapsp.com, but had no involvement in the creation, registration, or marketing of the website, which was used during a viral marketing campaign initiated by Sony to sell its Play Station Portable (“PSP”). Shortly after the PSP campaign became active, bloggers, consumers, and consumer activist groups began voicing on blogs and websites their concern, suspicion, and accusations over the campaign and those associated with it, including Zipatoni and Meyerkord.

Thereafter, Meyerkord filed an action against Zipatoni for false light invasion of privacy because Zipatoni failed to remove him as the registrant for its account with Register.com and registered www.alliwantforxmasisapsp.com with Meyerkord listed as the registrant when he no longer worked for Zipatoni. As a direct result of the “negligence” of Zipatoni, Meyerkord alleged the content of www.alliwantforxmasisapsp.com was “publicly attributed” to Meyerkord, and 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.”  Meyerkord also alleged these injuries will continue because the blogs and websites criticizing him will remain “on the [i]nternet and open for searching/viewing for an indefinite period of time.”  Meyerkord requested a judgment in excess of $25,000.

Zipatoni filed a motion to dismiss in which it argued no Missouri court had recognized the “false light” tort as an action separate from defamation, and Meyerkord failed to plead a claim for defamation. The trial court granted Zipatoni's motion to dismiss. This appeal follows.

In his sole point, Meyerkord argues the trial court erred in granting Zipatoni's motion to dismiss because his claim represents the “classic case” of false light invasion of privacy as set forth by the Missouri Supreme Court and the Restatement (Second) of Torts because Zipatoni publicly and falsely attributed a website to Meyerkord.

We review the grant of a motion to dismiss de novo.

In deciding whether to adopt the tort of false light invasion of privacy, we note the majority of jurisdictions addressing false light claims have chosen to recognize false light as a separate actionable tort. Further, of these jurisdictions most have adopted either the analysis of the tort given by Dean Prosser or the definition provided by the Restatement (Second) of Torts. Id. On the other hand, a minority of jurisdictions have refused to recognize the tort of false light invasion of privacy....

As to the first rationale, we find false light invasion of privacy is sufficiently distinguishable from defamation torts. In defamation law, the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world. Id. On the other hand, in privacy cases, the interest affected is the subjective one of injury to the person's right to be let alone....Further, where the issue is truth or falsity, the marketplace of ideas provides a forum where the answer can be found, while in privacy cases, resort to the marketplace merely accentuates the injury....Thus, we find the interests at stake are sufficiently distinct for a separate remedy for false light invasion of privacy to exist. The second rationale for refusing to recognize false light invasion of privacy can be easily mitigated through the adoption of a heightened standard like actual malice or recklessness. Some courts have adopted an actual malice standard for claims involving public officials or figures or claims asserted by private individuals about matters of public concern and a negligence standard for claims by private individuals about matters of private concern. ...However, we find that adhering to the actual malice standard in the Restatement for all types of cases strikes the best balance between allowing false light claims and protecting First Amendment rights. ...Further, this heightened standard will help to alleviate some of the concerns regarding judicial economy, which are evident in the third rationale for not recognizing false light invasion of privacy. Moreover, the Restatement's requirement that the statement must be “highly offensive to a reasonable person” reduces the possibility that the recognition of the false light tort will result in unnecessary litigation.

...

Nevertheless, Zipatoni argues even if Missouri courts are receptive to recognizing a cause of action for false light invasion of privacy, this is a poor case to advance that theory for at least three reasons: (1) the false light tort requires one “to give publicity to a matter,” and Zipatoni argues it did not “give publicity” to this matter and the website was not “publicly attributed” to Meyerkord; (2) Zipatoni claims this case did not involve a major misrepresentation which would be highly offensive to a reasonable person; and (3) Meyerkord only alleged Zipatoni acted negligently, but the Restatement and cases from other jurisdictions have required reckless disregard or actual malice for false light invasion of privacy claims.

We now turn to Zipatoni's third argument for not recognizing a cause of action for false light invasion of privacy in this case. In his petition, Meyerkord alleged Zipatoni was “negligent and careless” in failing to remove him as the registrant for its account with Register.com and in registering www.alliwantforxmasisapsp.com with Meyerkord listed as the registrant. Because we have adopted the tort of false light invasion of privacy and have found that the proper standard for liability is actual malice, we find Meyerkord has failed to plead the essential elements for a claim of false light invasion of privacy. Meyerkord failed to allege Zipatoni acted with knowledge of or with reckless disregard as to the falsity of the publicized matter and the false light in which Meyerkord would be placed. Thus, we conclude Meyerkord's current petition does not adequately plead a cause of action under the false light invasion of privacy theory as stated in the Restatement and adopted by us. Therefore, the trial court did not err in granting Zipatoni's motion to dismiss because Meyerkord's petition failed to state a claim upon which relief may be granted.

However, because of the developing status of this area of the law, and because no previous cases have discussed pleading requirements in Missouri, we will remand this case and give Meyerkord an opportunity to amend his petition to plead the correct standard for his claim of false light invasion of privacy as adopted above.

We can fairly easily dispose of Zipatoni's first two contentions. First, because we are merely testing the adequacy of the petition on a motion to dismiss and we accept all allegations as true and Meyerkord alleged “the content of www.alliwantforxmasisapsp.com was publicly attributed” to him, we find he adequately pleaded facts to support this element of false light invasion of privacy. Second, with respect to whether this case involves a major misrepresentation that would be highly offensive to a reasonable person, we find Meyerkord adequately alleged the content of www.alliwantforxmasisapsp.com was wrongfully attributed to him and he alleged this caused him to suffer shame, embarrassment, humiliation, harassment, and mental anguish. Further, we find the questions of whether these allegations describe a major misrepresentation that would be highly offensive to a reasonable person are questions for a jury. At this stage, we are bound to accept all averments in the petition as true. Thus, we cannot say this case did not involve a major misrepresentation that would be highly offensive to a reasonable person.

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