What Claims Are Available if Suing For Defamation Isn’t an Option?

Sometimes content on the internet isn’t actionable for defamation, but it can give rise to other claims.

At Minc Law we have worked with thousands of clients to remove content, protect privacy rights, and stop online harassment. One of the first things we do for every client is determine their best course of action based upon the facts of their case and the claims available in the relevant jurisdiction.

In this post, we’ll discuss several defamation litigation alternatives that may be pursued if a defamation lawsuit isn’t an option or what other additional claims may be available. We’ll also provide examples of each type of case in action.

The most common alternatives to suing for defamation are:

• Invasion of privacy claims;
• Tortious interference claims;
• Intentional infliction of emotional distress claims;
• Civil harassment claims;
• Unfair trade practice claims; and
• Non-litigation options.

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Let’s start with an overview of each of the four invasion of privacy claims.

Invasion of Privacy Claims

People commonly confuse invasion of privacy with defamation, and it’s easy to do because these claims can arise out of related facts. Invasion of privacy is an umbrella term for four separate causes of action. Each different cause of action requires proof of different elements. Keep in mind that not every jurisdiction recognizes all of the four claims, so it is important to understand the options in any jurisdiction where you plan to file suit. The four invasion of privacy claims are:

• False light;
• Intrusion upon seclusion;
• Publication of private facts; and
• Misappropriation.

False Light

False light is a privacy tort similar to defamation. This tort allows individuals the right to protect themselves against the public spreading of information which portrays them in a “false light.” Some jurisdictions do not recognize false light claims as a separate cause of action.

The main difference between defamation and false light claims is that false light claims are often designed to compensate victims for emotional distress, while defamation claims are primarily concerned with compensating victims for reputational harm. False light claims are primarily reserved for harm to an individual, so corporations are better off pursuing other claims.

Elements of a False Light Claim

Each jurisdiction has slightly different wording which may create nuances. However, the following elements are generally required to prove the tort of false light:

• The defendant publicized what they said to others (must be widely published, not just shared with one or two people)
• The statement communicated something false or showed the plaintiff in a false light
• The statement would be highly offensive to a reasonable person, and
• The defendant was at fault and/or acted with malice (they knew the statement was false)

False Light Case Example

A false light claim can also arise if facts are presented in such a way as to give an overall false impression. In Braun v. Flynt, the 5th Circuit found that “the publication of Mrs. Braun’s picture in the ‘Chic Thrills’ section of the magazine [defendant] was fully capable of conveying a false impression of Mrs. Braun.” [emphasis added].

Braun’s claim began when she discovered her picture in a “hard-core men’s magazine” whose dominant theme was “female nudity” and “unchastity in women.” Braun did not pose for the magazine or permit them to use her photo.

As an amusement park employee, Braun worked in a novelty act with a “diving pig.” Braun signed a release authorizing her employer to use photos of her with the pig in pictures and postcards advertising the act.

However, Braun never expected to discover the image being used in a lewd context. While the defendant magazine did not modify the image or falsely identify Braun, the court concluded that “common sense dictates that the context and manner in which a statement or picture appears determines to a large extent the effect which it will have on the person reading or seeing it.”

The jury concluded that Mrs. Braun was a victim of the tort of false light invasion of privacy, ultimately awarding her damages in the amount of $95,000.

Intrusion Upon Seclusion

Intrusion of seclusion claims refer to the publication of private facts, or public information that is not newsworthy or of legitimate public concern. While the information shared may be true, unlike defamation, it’s the nature of the information shared that can potentially give rise to this claim.

Elements of an Intrusion Upon Seclusion Claim

A plaintiff must establish:

• That the defendant, without authorization, intentionally invaded the private affairs of the plaintiff;
• The invasion would be offensive to a reasonable person;
• The matter the defendant intruded upon involves a private matter; and
• The intrusion caused mental anguish or suffering to the plaintiff.

Intrusion Upon Seclusion Case Example

In Lake v. Wal-Mart Stores, Inc., plaintiffs Lake and Weber filed claims for intrusion upon seclusion, appropriation, publication of private facts, and false light publicity after a private photo was shared by Walmart photo lab employees.

While vacationing, Weber’s sister took a nude photo of Weber and Lake in the shower together. When the plaintiffs took the rolls of film to their local Walmart for development, they received a note in return that some photos had not been printed “because of their nature.”

A few months passed, and the plaintiffs were informed that “one or more copies of the photograph were circulating in the community.” Multiple acquaintances “alluded to the photograph and questioned [the plaintiffs] sexual orientation.” Ultimately, the Court found that “one’s naked body is a very private part of one’s person…a type of privacy interest worthy of protection.”

One of the most notable cases involving a claim for intrusion upon seclusion in recent years involved former professional wrestler, Hulk Hogan whose actual name is Terry Gene Bollea. In Bollea v. Gawker, Bollea (“Hogan”) filed suit against Gawker Media for posting portions of a sex tape involving Hogan, citing invasion of privacy, infringement of personality rights, and intentional infliction of emotional distress.

According to Bollea, the tape was made and publicized without his knowledge or consent. The subject matter of the tape concerned private affairs that most people would not want shared with the public.

The Gawker post included a roughly two minute “highlight reel” of the video, with audio, showing Hogan naked and involved in private acts. A “graphic narrative” that described the activity in the video in “lurid detail” was also posted.

Due to Bollea’s fame, millions of people viewed the video and numerous media outlets shared links, generating substantial revenue and profits for Gawker. Bollea argued that Gawker benefited financially by tarnishing the fame and goodwill of his name (and harming his commercial value).

Gawker editors argued that Bollea made his sex life a public matter and that the video had news value. After years of litigation and a jury trial that lasted weeks, the jury found in favor of Bollea, awarding him $115 million in compensatory damages (including $60 million for emotional distress) and an additional $25 million in punitive damages. The case was ultimately settled for $31 million.

Publication of Private Facts

So what are your options if the harmful statements published about you are true? You may still have a claim for invasion of privacy that arises from publication of private facts.

Defamation involves false statements, whereas this invasion of privacy claim protects victims from publication of true, but private facts. The information that is published must also be highly offensive or objectionable to a reasonable person – and cannot be newsworthy or valuable public information.

Defamation Fact: Defamation per se involves statements which are so defamatory and libelous, that damage to a plaintiff’s reputation is presumed. In most states there are four types of statements that are considered defamation per se: (1) allegations that the Plaintiff has committed a crime; (2) allegations the Plaintiff has a “loathsome” disease such as an STD; (3) claims that the Plaintiff is unchaste or has engaged in sexual misconduct; (4) allegations the Plaintiff has committed professional misconduct.

Elements of a Publication of Private Facts Claim

A plaintiff must generally establish the following four elements to have a case for publication of private facts:

• The disclosure of facts must be public;
• The facts disclosed must be private, and not open to the public;
• The publication of private facts in question must be offensive to a reasonable person of ordinary sensibilities; and
• The facts disclosed cannot be newsworthy.

Publication of Private Facts Case Example

In Greenwood v. Taft, a male attorney alleged that private information about his male partner was disseminated in violation of his right to privacy.

Specifically, Greenwood listed his male partner as the beneficiary of his insurance and pension benefits, and staff within the Taft Firm [his employer] shared that information with “persons who had no responsibility for the administration of the programs and no need to know the information.”

The Court explained that Greenwood had a viable claim, stating, “if Greenwood had chosen to keep his sexual orientation private, and the firm’s alleged disclosure ‘outed’ him, a reasonable person may well have been offended by this disclosure.”

Misappropriation or Appropriation

Misappropriation is using the name and likeness or image of another for commercial purposes. It is also called “Appropriation” in some jurisdictions. It may also occur when a person’s identity is used by another for the other person’s own personal benefit. This often occurs in the context of celebrities and well-known people, by marketers trying to sell a particular product.

Elements of a Misappropriation or Appropriation Claim

A plaintiff must establish three elements to sue for misappropriation:

• That the defendant used an aspect of the plaintiff’s identity that is protected by the law, like their name or likeness (distinguishable aspects of a person’s identity);
• That the defendant used the plaintiff’s name, likeness, or other personal attributes for commercial, personal, or other exploitative purposes. The use of someone’s name or likeness for news reporting is not exploitative;
• That the plaintiff did not give permission to use their likeness.

Case Examples

An example of appropriation in the Internet context was discussed in the case of Faegre & Benson. In this case, two lawyers and a law firm sued the defendant after he created multiple “counterfeit web pages” to express criticisms of the plaintiffs’ stance on abortion.

After the plaintiffs were granted injunctive relief, the defendant again posted websites critical of plaintiffs which included, among other things, a counterfeit website that included one of the plaintiff’s nicknames, “hindrocket.”

The counterfeit website stated that it was the “official” website of the plaintiff, included the lawyer’s image along with a fake biography and a graphic associated with his nickname, and used the nickname as the domain name.

The court held that a nickname also known as a “pseudonym” can be protected from appropriation if it clearly identifies the plaintiff. In it’s analysis finding contempt, the court stated that the inclusion of the items above contributed “to the impression that plaintiff sponsored or is affiliated with the page.”

The court also found that the disclaimers did little to eliminate any confusion because the domain name itself was “used to mislead internet users into visiting [defendant’s] website when they are actually seeking [plaintiff’s] website.” By luring unsuspecting visitors to his website, the defendant exploited plaintiff’s name sufficiently to satisfy the claim of appropriation. The court ordered the defendant to immediately transfer the domain name over to the plaintiff and pay over a hundred thousand dollars in fines and attorneys’ fees.

Note: If someone registered you or your business’s name as a domain name, you have three primary options available to try and acquire the domain. Find out what those options are in our Article: “Someone Registered My Name as a Domain Name: What Are My Options?”

Cyberbullying Fact: Many cyberbullies hide behind fake usernames to remain anonymous. Unmasking the identity of an anonymous poster is an important first step towards stopping online defamation or preventing cyberbullying. Once you identify an attacker, you’ll be able to hold them accountable; request the removal of negative content they posted; prevent future attacks; and possibly win a monetary reward for damages.

Tortious Interference Claims

Tortious interference is a shorter way of saying “interference with contractual or business relations.” This occurs when someone (often a competitor) interferes with a person or corporation’s business activities – such as preventing a deal from happening.

In some cases, this may even include people writing negative reviews or creating reviews to discourage potential clients from working with a particular business.

Elements of a Tortious Interference Claim

To better understand this tort, it helps to break down the word into its two core components:

• Tortious: refers to a tortious act – a harm brought about through tort which infringes on another person’s rights
• Interference: refers to the interference with another person’s business relationships and contractual relations, which ultimately causes economic harm and damage

Tortious Interference Case Example

A recent example of tortious interference is the case of Cannella v. Brennan. In this case, defendants created a website to spread false and misleading statements about a competing insurance company (the one owned and operated by the plaintiffs). Ultimately, the plaintiffs had multiple prospective clients that cancelled follow-up appointments because of the content they read on defendant’s websites.

The plaintiffs filed suit citing multiple legal issues, including defamation and tortious interference. Because Pennsylvania law has a longer statute of limitations for tortious interference claims (two years) than defamation claims (one year), the defendants argued that defamation occurred rather than tortious interference as an attempt to get the claim dismissed.

The court determined that the essence of the plaintiffs’ tortious interference claims related to injury to their economic interests, instead of merely injury to their reputation – differentiating the claim enough from a defamation claim to qualify for the two-year statute of limitations. The court also found that the plaintiffs provided sufficient facts to show economic injury to their business and satisfy the elements of Pennsylvania’s rules for tortious interference with prospective contractual relationships.

Intentional Infliction of Emotional Distress Claims

Intentional infliction of emotional distress (IIED) is a civil tort that involves conduct so terrible and outrageous that it causes severe emotional distress and trauma to the victim. The trauma must be beyond the bounds of that which is tolerated in a civilized community.

Elements of an IIED Claim

State laws vary, but an IIED claim generally requires a plaintiff prove three elements:

• The defendant must act intentionally or recklessly;
• The defendant’s conduct must be extreme and outrageous; and
• The defendant’s conduct must cause the victim extreme emotional distress.

Intentional Infliction of Emotional Distress Case Example

In Grenier v. Taylor, the California Court of Appeals upheld the denial of an Anti-SLAPP motion to strike the plaintiff’s claims for defamation and intentional infliction of emotional distress.

In this case, Pastor Bob Grenier and his wife filed suit against his stepson, Alex Grenier, and a parishioner, Tim Taylor for statements they both made about him in an internet forum and on a separate website. Both defendants described Bob as “abusive and of bad character.”

When the plaintiffs filed suit, they alleged that the defendants conducted a “cyber-bully hate campaign” where they repeatedly stated that “Bob is a ‘child molester’ and a ‘corrupt pastor who was stealing money from the church.’”

The court held that the plaintiffs’ claim for IIED had some merit. Specifically, the Court explained, the statements about both of the plaintiffs “are not mere insults…[r]ather, they accuse Bob of criminal conduct that includes vile and depraved activities. Further there is a sufficient…showing that these statements were directed at Bob and…calculated to cause Bob…severe emotional distress. ” [emphasis added]. The court also pointed out the plaintiffs’ declarations that “their reputations are ruined, they do not want to leave their residence, they have considered moving away to establish a life of anonymity, and they fear for their physical safety.”

Fortunately for the parties involved in this family dispute, the case was ultimately dismissed and the family appears to have reconciled.

Reputation Management Tip: Online Reputation Management (ORM) may be a better option than content removal in cases where (1) the content is considered “newsworthy”; (2) the content has gone viral; (3) the content is related to a serious crime; and/or (4) legal action will take too long. For further reading, check out our article “Removing Content: Online Reputation Management vs. Legal Services“.

Civil Harassment Claims

Civil harassment claims typically involve an injunction (restraining order) issued against another person in response to words or behavior deemed harassing. Definitions of “harassment” vary widely, but it can generally be defined as “a course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.”

Elements of a Civil Harassment Claim

Every state defines civil harassment differently, but there are some general similarities. A plaintiff may obtain an injunction for harassment if they prove:

• A course of conduct occurred which seriously alarms, annoys, or harasses the plaintiff;
• The conduct was directed at the plaintiff;
• The conduct was alarming, annoying, or harassing; and
• There was no legitimate purpose for the conduct.

Civil Harassment Case Example

The California case of RD v. PM is an example of civil harassment. Therapist RD was being stalked and harassed by PM, a former patient.

The harassment began after the plaintiff, a clinical psychologist, ended therapy with the defendant due to their hostility. The defendant did not take the dismissal well and engaged in a several year course of extreme harassment and stalking. In 2009, the plaintiff obtained a one-year restraining order against the defendant. After the restraining order’s term expired, the harassment resumed.

The defendant confronted the plaintiff in a threatening manner in her local market, posted dozens of negative messages about the plaintiff’s professional conduct on consumer review websites, left flyers with disparaging messages at the entrance to plaintiff’s office building, on nearby cars, and in front of the plaintiff’s son’s elementary school.

Then the defendant started hanging around the plaintiff’s son’s elementary school, volunteering to assist with children’s activities. The defendant followed the plaintiff to her son’s school and his baseball practices. She also made false reports about the plaintiff to a local police detective. The defendant also started making contact with the plaintiff’s children’s schools. Then, she even gave the plaintiff’s name to a collection agency regarding an outstanding hospital bill.

The list of harassing behavior goes on, but ultimately the defendant was restrained from any further contact with the plaintiff or her family. This case was a prime example of the need for civil harassment laws.

Unfair and Deceptive Trade Practice Claims

Section 5(a) of the Federal Trade Commission Act (the “FTC Act”) prohibits “unfair or deceptive acts or practices in or affecting commerce.” This prohibition applies to all persons engaged in commerce, including banks.

Many states have also adopted their own version of unfair and deceptive trade practices acts (UDTPAs) which have elements of proof that are the same or similar to the FTC Act.

In our practice, these claims can arise in conjunction with defamation claims when competitors leave anonymous fake and deceptive negative reviews on review websites. They often pretend to be a former client, patient, or customer – but after their identity is discovered, it turns out to be a competing service provider.

Elements of an Unfair and Deceptive Trade Practice Claim

The legal standards for both unfair and deceptive practices are independent of each other. It’s possible for a practice to be unfair, deceptive, or both.

An act or practice is unfair where it:

• Causes or is likely to cause substantial injury to consumers;
• Cannot be reasonably avoided by consumers; and
• Is not outweighed by countervailing benefits to consumers or to competition.

An act or practice is deceptive where:

• A representation, omission, or practice misleads or is likely to mislead the consumer;
• A consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances; and
• The misleading representation, omission, or practice is material.

Unfair and Deceptive Trade Practice Case Example

Verified Nutrition, Ltd. Liab. Co. v. Sclar

An example of the intersection of defamation and unfair trade practices is Verified Nutrition, Ltd. Liab. Co. v. Sclar. In this case, the parties sold competing prostate health supplements.

The plaintiffs had a website that advertised their product through an infomercial featuring tv personality Larry King. The website also included reviews of various prostate supplements, including a review of the defendant’s product which concluded that the plaintiffs’ product was superior.

In response, the defendants started three websites which took images directly from the plaintiffs’ website and attacked the plaintiffs. The websites alleged, among other things, that the plaintiffs were a “total scam” and “fraudulently [sold] one bogus product after another” with a “long history of defrauding consumers.

The plaintiffs filed suit in California and sought a temporary restraining order to enjoin the defendants from “continuing to disseminate this false information.” The suit alleged numerous claims but the plaintiffs sought the temporary restraining order on the basis that they were likely to prevail on their claims for false advertising, defamation, trade libel and unfair competition.

The court found that they were likely to succeed on all of these claims:

• False advertising – The court held that the plaintiffs would likely succeed on their false advertising claim because the defendant’s statements were “likely to deceive a substantial segment of the defendants’ websites’ audience.”
• Defamation and trade libel – The court held that the plaintiffs submitted evidence that the statements on the defendants’ websites were verifiably false and unprivileged and plaintiffs claimed pecuniary loss and reputational damage.
• California’s Unfair Competition Law (UCL) – The California UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” Because the Court found that plaintiffs were likely to prevail on several claims, including false advertising, the “unlawful” prong of plaintiffs’ unfair competition claim was satisfied. Likewise, the plaintiffs were able to establish that the defendant’s claims would deceive the public, satisfying the “fraudulent” prong of the UCL. Finally, plaintiffs proved that the defendants’ statements were “unfair” because to the extent that they were “verifiable false” they were likely to “significantly harm competition.”

The court ultimately denied the temporary restraining order on other procedural grounds.

Non-Litigation Options to Remove Defamation

Sometimes negative content is not legally actionable, but you still have non-legal alternatives. In some cases, non-legal alternatives may even be effective for substantially less money than a lawsuit.

Cease & Desist and Other Types of Letters

A letter from an experienced content removal attorney may be enough to inspire the poster to remove content or to cease harassing behavior toward a client. Every situation is different so a tailored approach is important.

These letters can encompass a broad range of correspondence depending on the nature of the dispute and the client’s goals for resolution. Sometimes a sternly worded cease and desist letter which addresses unlawful behavior directly is necessary. This type of letter puts the person on notice that their behavior is being monitored by legal counsel in anticipation of pursuing legal action or notifying law enforcement if the behavior is classified as criminal defamation.

Other times correspondence may be designed to open a dialogue with the other individual for potential amicable resolution of a dispute that may not be appropriate for litigation. It is important to remember that correspondence from an attorney is not a substitute for litigation and does not carry the legal authority of a court order to remove content. However, it is often enough of a wake up call to the recipient to accomplish the goals set out by the client of either content removal or an end to harassing behavior.

Seeking Relief From the Online Platform

Sometimes a post may violate a platform’s policies, so you can flag the content and have it removed by the platform. This is particularly effective for copyright infringement, where a DMCA takedown notice is an important tool for removal of content that is posted without the copyright owner’s authorization.

Minc Law Can Help You Determine Your Best Options For Removing Online Content

If you’d like to learn more about your legal options, peruse our Legal Resource Center for more detailed information. When you are ready to meet for a free consultation with an intake specialist, contact us at (216) 373-7706 or complete our online contact form. Our experienced defamation attorneys are prepared to assist you if you’re interested in pursuing any of the claims in this article.

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“Dorrian Horsey went ABOVE & BEYOND to get a negative article removed about me. It was on the internet and I have been living in fear for OVER 20 years worrying that a potential employer would find out about my past. I hired Reputation Defender who totally made matters worse and put my negative article first on the internet? What a waste of money!! Then I contacted a place in Canada and it took 6 months with 0 progress. I called Michael Hennenberg, who was an attorney in Mayfield Heights and he HIGHLY recommended Minc, LLC. I was assigned to Dorrian and she got the job DONE in 3.5 months!! And it was the delay of the newspaper getting back to her. I am relieved. Honestly, she is my guardian angel who answered my prayers. Money well spent and it did NOT break the bank like Reputation Defender who made matters WORSE. That organization is a SCAM and needs to be shut down by the Better Business Bureau. The best decision that I have made in my life is to call Minc. I would HIGHLY recommend”

CZ, May 24, 2018