Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, June 25, 2010

Judge Declines To Dismiss IIED, Publication of Private Facts, Right of Publicity Act Claims Against A&E

A federal district judge has declined to dismiss a plaintiff's claims under the Illinois Right of Publicity Act, common law publication of private facts invasion of privacy, and intentional infliction of emotional distress against the A&E Network and a production company with regard to the broadcast of her appearance on the show Female Forces. The plaintiff repeatedly refused to consent to the airing of the video including her appearance, but the defendants broadcast it anyway, and plaintiff sued.

Wrote the judge in part:

Best alleges that the media defendants violated the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/30, which prohibits use of an individual's identity for commercial purposes without written consent. Best contends that broadcasting the footage of her arrest in a Female Forces episode constitutes a use of her identity for commercial purposes.

The Illinois statute defines a commercial purpose as "the public use or holding out of an individual's identity (I) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising." 765 ILCS 1075/5. Best alleges that the defendants used her identity in connection with a product, namely a television show. The Female Forces show is a for-profit product, broadcast on a network with commercial advertisements. People pay for television service, including via subscriptions to cable networks such as the Biography Channel. It appears that broadcasting the footage concerning Best on Female Forces satisfies the "commercial purpose" requirement under IRPA.

The defendants argue that Female Forces is exempt under IRPA because it is a television broadcast, and therefore Best's claim fails. In support, defendants cite a decision in which a court in this district held that a cartoon depiction of a person on a television show was exempt from IRPA under 735 ILCS 1075/35(b)(1). ... Section 35 of IRPA provides several exemptions from the statutory prohibition, including for works of art, news programs, and sports broadcasts. ...The footage of Best's arrest used in Female Forces... was not "an attempt to portray, describe, or impersonate" her in a work of art; it was actual video of her arrest. Therefore, the exemption contained in section 35(b)(1) does not apply, and Collier appears to be inapposite.

Defendants also argue that IRPA should not apply because "the Episode uses Plaintiff's identity in connection with legitimate coverage of public activities." Defs.' Mem. in Support of Mot. to Dismiss at 6. Defendants make reference to the First Amendment protections granted to books and newspapers, id. at 5, and they cite Supreme Court cases (and the Second Restatement of Torts) that discuss First Amendment protections for newspapers. By these references, defendants may be suggesting that the Female Forces program is a news or public affairs broadcast and thus exempt from IRPA under section 35(b)(2), which exempts "use of an individual's identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign." 765 ILCS 1075/35(b)(2). They may also be attempting to argue that the First Amendment precludes the application if IRPA to programs like Female Forces. Neither of these arguments are squarely presented in the defendants' brief, however, and the Court declines to grant a motion to dismiss on an argument that defendants have failed to develop fully. The Court therefore denies defendants' motion to dismiss count 2.



Best's complaint also includes a claim for invasion of privacy by publication of private facts, a tort under Illinois common law. Best alleges that the Female Forces segment about her arrest includes a shot of a computer screen on the dashboard of Malec's patrol car which displays personal details about her, including her name, age, height, weight, driver's license number, and information about previous traffic stops and arrests — including at least one that appears to have taken place when she was a minor. This shot of the computer screen, Best argues, constitutes publication of private facts.

In Illinois, to succeed on a claim for public disclosure of private facts, a plaintiff must prove that: "(1) publicity was given to the disclosure of private facts; (2) the facts were private and not public facts; and (3) the matter made public would be highly offensive to a reasonable person." ...

Defendants have moved to dismiss this claim on the ground that the facts visible on the monitor in Malec's patrol car are not private facts and that nothing revealed on the screen would be highly offensive to a reasonable person. In ruling on a motion to dismiss, the Court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the non-moving party. ... Best has alleged that the publication of this information was highly offensive and caused her great distress. Given the nature of at least some of the information, and given the risk of identity theft that is presented by the exposure of such information in association with a person's name, the Court concludes that it is reasonable to infer that disclosure of such information would be highly offensive to a reasonable person. The Court is satisfied that Best's complaint satisfies this element of the test.

Furthermore, though defendants argue that the facts disclosed were not private facts, the Court is not entirely persuaded. Illinois cases addressing the question of publication of private facts have held that private facts are "intimate personal facts," such as health issues and sexual relationships. ...Matters of public record such as a person's name, address, date of birth, and fact of marriage, have been held not to be private facts....Other cases have limited the definition of private facts to those facts that the Illinois legislature has expressly stated are private or those that are "facially revealing, compromising, or embarrassing." ...

The defendants argue that all of the facts Best alleges were revealed on the computer screen are, in fact, public facts, and therefore count 3 should be dismissed. Defendant notes, correctly, that the fact of a prior arrest or traffic stop is not a private fact. ...From the dates visible on the computer screen, however, it appears that at least one of the prior arrests shown occurred when Best was a minor, which in the Court's view raises additional privacy implications. The rights of minors are often different from those that apply to adults. The defendants have offered no case that stands for the proposition that record of an arrest as a minor (as opposed to an adult) should be treated as a public fact.

Defendants also argue that courts have held that facts such as a person's name and age are matters of public record, and as such are not private facts.... However, taken in combination, the facts about Best's name, age, height, weight and driver's license number could arguably be classified as "facially compromising," particularly given the identity theft risks that disclosure of such information presents. .... The Court therefore concludes, drawing reasonable inferences in Best's favor, that she has adequately alleged facts sufficient to sustain a claim of invasion of privacy by publication of public facts and therefore declines to dismiss count 3.



Defendants have moved to dismiss Best's claim for intentional infliction of emotional distress. Under Illinois law, to succeed on a claim of intentional infliction of emotional distress, a plaintiff must prove that defendant's conduct was so extreme and outrageous as to exceed all possible bounds of decency; it resulted in emotional distress so severe that no reasonable person could be expected to endure it; and defendants intended to inflict this distress or were substantially certain that their conduct would result in severe distress. ...

Best's complaint alleges that Malec and Boogerd engaged in extreme and outrageous conduct when they made what she characterizes as mocking comments about her Coach products, her Jaguar, and the fact that they interrupted her trip to the grocery store when they pulled her over. She alleges that media defendants' decision to televise the footage of her arrest without her consent, after she had been assured that it would not appear on the show, and Naperville's failure to object to the use of that footage, was likewise extreme and outrageous. The complaint alleges that Best "suffered and continues to suffer severe embarrassment, humiliation and emotional distress as a result of these actions."

Defendants assert that Best has "fail[ed] to sufficiently allege a cause of action for intentional infliction of emotional distress." Defs.' Mem. in Support of Mot. to Dismiss at 10. They argue that the conduct Best has identified is not extreme and outrageous. Whether conduct is extreme and outrageous is "determined by the facts and the circumstances of each case, and is evaluated on an objective standard." ...Courts have granted motions to dismiss claims of intentional infliction of emotional distress when the court concludes that the conduct plaintiff alleges fails to rise to the level of "extreme and outrageous."

If Best's claim were based solely on the fact that Malec and Boogerd made a few remarks that amount to mocking or teasing about Best's perceived wealth or fancy taste, the defendants might be correct that she was complaining about "mere insults [and] indignities," and motion to dismiss the intentional infliction of emotional distress claim might fare better. Id. As it stands, however, Best's complaint alleges not only that the comments were made but that the defendants aired footage including those mocking comments without her consent, knowing that she objected and ignoring the assurances that they had given her that it would not be televised. Compl. ¶ 148. This, in the Court's view, elevates this claim above the level of "mere insults," at least for purposes of a motion to dismiss.

Best's complaint also sufficiently alleges that broadcasting the footage of her arrest caused her substantial emotional distress and that defendants knew or should have known that televising the footage over her objection would cause that distress. Compl. ¶¶ 149-50. The Court concludes that Best's complaint, taking all facts as true and drawing all inferences in her favor, alleges facts sufficient to establish the elements of a claim of intentional infliction of emotional distress. The Court therefore declines to dismiss count 4.

The case is Best v. Malec, Case no. 09 C 7749, U. S. D. C., N. D. Illinois, Eastern Division, June 11, 2010.

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