Case of the Online Viral Marketing Scheme

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 con- tends 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 corpora- tion 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. vacy” [citation omitted]. In Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942), the Supreme Court acknowledged the general “right of privacy” not to have certain private affairs made public. An “invasion of privacy” is a general term used to describe four different torts.[ . . . ] We have acknowledged this Restatement classification, but we have yet to recognize a cause of action for false light invasion of privacy.

Meyerkord argues the false light invasion of privacy tort should be recognized in this case because this case meets the elements of the tort and represents the “classic case” discussed in Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo. banc 1986), the key case dealing with the question of whether Missouri courts should adopt a cause of action for false light invasion of privacy. In Sullivan, the court looked at the issue of whether a plaintiff could sue for false light invasion of privacy and avoid the two year statute of limitations for defamation actions. In deciding that question, the court noted it had not yet recognized a cause of action apart from defamation for false light invasion of privacy. However, it went on to say that: [i]t may be possible that in the future Missouri courts will be presented with an appropriate case justifying our recognition of the tort of “false light invasion of privacy.”

The court also noted the difference between false light and defamation was that the latter protects one’s interest in his or her reputation, while the former protects one’s interest in the right to be let alone. An action for false light invasion of privacy does not require one to also be defamed; it is enough that he or she is given unreasonable and highly objectionable publicity that attributes to him or her characteristics, conduct, or beliefs that are false, and so is placed before the public in a false position. Restatement (Second) of Torts Section 652E, cmt. B (1977). When this is the case and the matter attributed to the plaintiff is not defamatory, the rule here affords a different remedy not available in an action for defamation.

Section 652(E) of the Restatement (Second) of Torts spells out the elements of the tort of false light invasion of privacy as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This section applies only when the publicity given to the plaintiff has placed him in a false light before the public, of a kind that would be highly offensive to a reasonable person. In other words, it applies only when the defendant knows the plaintiff, as a reasonable person, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity. On the other hand, the plaintiff’s privacy is not invaded when unimportant false statements are made, even when they are made deliberately. It is only when there is such a major misrepresenta- tion of one’s character, history, activities, or beliefs that serious offense may reasonably be expected to be taken by a reasonable person in his or her position, that there is a cause of action for invasion of privacy.

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. On the other hand, a minority of jurisdictions have refused to recognize the tort of false light invasion of privacy. The rationales commonly supporting a court’s refusal to recognize false light invasion of privacy are that: (1) the protection provided by false light either duplicates or overlaps the interests already protected by the defamation torts of slander and libel; (2) to the extent it would allow recovery beyond that permitted for libel or slander, false light would tend to exacerbate the tension between the First Amendment and these cases; and (3) it would require courts to consider two claims for the same relief, which, if not identical, at least would not differ significantly.

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. 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. . . . 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. As noted earlier, the Missouri Supreme Court has considered the issue of whether Missouri courts should adopt the tort of false light invasion of privacy, but the Supreme Court concluded it had not yet been confronted with a factually suitable case.

We now find that the facts of the present case properly present the issue of false light invasion of privacy and we hold that a person who places another before the public in a false light may be liable in Missouri for the resulting damages. In recognizing this cause of action, we note that as a result of the accessibility of the internet, the barriers to generating publicity are quickly and inexpensively surmounted. Moreover, the ethical standards regarding the acceptability of certain discourse have been diminished. Thus, as the ability to do harm grows, we believe so must the law’s ability to protect the innocent.

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.alliwantforxmasis apsp.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. 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.

Why is accessibility of the Internet a consideration in a claim for false light? (6 points)
What were the reasons give by Zipatoni against recognizing a cause of action for false light invasion of privacy? (7 points)
Why did the court reject these reasons and recognize the false light invasion of privacy tort? (7 points)