Category: Tort Law

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Glass Houses

Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June.  A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use.  The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used.  It’s not clear, however, that the Glass experience will duplicate the Kodak pattern.  Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.

Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference.  There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye.  Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers.  “My world,” he wrote, “came screeching to a halt.”  In an article appearing a week later, however, Bilton appeared to have calmed down.  He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public.  Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s.  So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence.  Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.

But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today.  Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century.  The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers.  Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy.  That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors.  State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox.  In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.

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Divisible Defamation

When Congress passed the SPEECH Act two years ago, its primary goal was to protect speakers from hefty defamation verdicts rendered by libel havens, countries whose laws are less speech-protective than those in the United States.  The statute essentially prohibits U.S. courts from enforcing foreign defamation judgments unless the applicable law provides speech protections comparable to those in the U.S., or the same judgment would have resulted under U.S. law.  One recent case suggests that the SPEECH Act may inadvertently be splitting the defamation atom in two, allowing plaintiffs to rehabilitate their reputations while simultaneously shielding defendants from monetary loss.  This phenomenon may sound familiar to Conflicts aficionados, as it seems to replicate the creation of so-called divisible divorce in the 1940s.

A case now on appeal in the Fifth Circuit, involving New Orleans corruption, Canadian libel law, and the same-sex proprietors of a Nova Scotia fishing resort, illustrates what may become the norm when electronic speech spans national borders.

In a 2010 story about alleged political corruption in Jefferson Parish, Louisiana, the New Orleans Times-Picayune reported that a parish official co-owned a vacation resort in Nova Scotia.  The paper later retracted the statement and stopped hosting a blog that had also discussed the connection between the disgraced official and the Nova Scotia couple that ran the resort.  The blogger found a new host and continued to post allegations that the couple was laundering proceeds of the New Orleans corruption, along with embarrassing photoshopped images of the two and several homophobic slurs against them.  The couple sued the blogger in Canada for defamation (and several other torts).  The blogger did not appear, the allegations in the complaint were taken as true, and the court awarded the men $425,000.  The men sought to enforce the judgment in Mississippi state court, the case was removed to the local federal district court, and the court refused to enforce the judgment, citing the SPEECH Act.  The federal court concluded that its Canadian counterpart did not specifically find that the blogger’s statements were false, as required under U.S. law.  Therefore, the Canadian court provided less speech protection than a U.S. court would have, and the judgment could not be enforced.

The result may have been an unintentionally ideal compromise.  Together the U.S. and Canadian courts essentially credited the moral victory to the ostensibly defamed lodge owners and the financial victory to the blogger.  While this might not be a palatable outcome for most torts, there is some research suggesting that defamation plaintiffs, in particular, are as concerned with public acknowledgment that they have been falsely impugned as they are with collecting money.  In fact, the Nova Scotia plaintiffs were reported to have said “this was never about the money,” echoing Frederick Pollock’s famous observation that “the law went wrong from the start in making the damage and not the insult the cause of the action.”  Further, while speech has grown increasingly global, libel law remains stubbornly divided between defendant-protective doctrines in the U.S. and more plaintiff-friendly doctrines elsewhere.  So it may be time for a mechanism that strikes something of a balance.

In fact, it is not uncommon that recognition and enforcement principles are deployed to accommodate cultural or generational divides reflected in conflicting laws.  In the 1940s, the Supreme Court held in a series of cases that states had to recognize quickie divorces awarded by sister states that had welcomed fleeing spouses, even when the absent spouse was clinging to the marriage.  Several years later, however, the Court held that while sister states had to honor adjudications of marital status, they did not have to honor out-of-state judgments purporting to dictate the financial status of the absent spouse.  Thus was born the “divisible divorce,” with one state handling the status adjudication and another handling the financial adjudication.  Perhaps the SPEECH Act has established divisible defamation for the age of global speech.

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Disaster Compensation Funds

Authorities in Boston have set up a fund (supported by voluntary donations) to compensate the victims of the bombing last week.  Ken Feinberg, the man who administered the 9/11 Fund and the BP Disaster Fund among others, has been called in to help with this one too.

We need more scholarship and regulation of this trend in tort compensation.  While there are advantages in setting each of these funds up as an ad-hoc arrangement and using the expertise of a single individual, drawing up a model statute for states to enact that would create a basic framework for these funds when they are necessary would be better over the long run.

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Wrongful Birth and Adoption

Wrongful birth cases present many challenging issues.  Since I talk about this doctrine every time that I teach Torts, I was surprised to realize recently that I have never posted about this.  For those who do not know, “wrongful birth” refers to a cause of action brought because of an unwanted pregnancy caused by medical malpractice or defective birth control.  Suppose that a vasectomy is done negligently, or a woman gets the wrong pills, etc.  The doctor, pharmacist, or pharmaceutical company could be liable.  The really difficult question is–for how much?

One possibility is that the wrongdoer is liable for the cost of an abortion.  If you don’t get one, the argument goes, then you are not acting reasonably to mitigate damages.  No state takes this view.  It is easy to see why.  That would be pressure to have an abortion, which would be intolerable for many people.

Another option, which is the law in some states, is that any liability extends for only the costs of the pregnancy.  (By costs, I am including emotional distress and other intangible damages.)   One thought here is that adoption is what you must do to mitigate damages.  Or you could say that a child goes from “unwanted” to “wanted” once the parents accept responsibility for raising the baby, which breaks the chain of causation.  The adoption question is interesting because I don’t know of a religious objection to giving up a child for adoption, yet people feel uncomfortable with the idea of making adoption into a legal duty.

A third alternative, also the law in some states, is that liability extends beyond birth to reasonable child-rearing expenses until the kid turns 18.  This would say, in effect, that adoption is not necessary mitigation and that rearing a child does not break the chain.  Estimating the damages in such a case, though, is really speculative.  Moreover, there are benefits to raising a child.  How do you calculate that?

Finally, you could say something like the following, which is also done in some states:  “You only get damages after birth only if the child suffers from some disability that imposes a special financial burden on the parents.”  Calculating the damages is still tricky, but this does acknowledge that this situation is materially different from the usual one.

There is no clear answer to this dilemma, though I’d be curious to hear what people think about the different approaches that states take.

UPDATE:  In the original post, I said “wrongful life” when I meant “wrongful birth.”  Fixed now.

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“The Future of Drones in America” Hearing

I got the chance to testify at a hearing of the full Senate Judiciary Committee about the domestic use of drones yesterday. The New York Times has this coverage and, for aficionados of torts, I talk about intrusion upon seclusion with Senator Dick Durbin in this clip from NBC News. Should you get a chance to watch the hearing in full, Senator Al Franken’s thoughts at the end were particularly vivid. My written and oral comments were similar to those outlined in my previous post: privacy law places few limits on the use of drones for surveillance, but we should be very careful in crafting any drone-specific legislative response.  It happens that, about when I was testifying, my students were taking a final where one of the questions involved a drone filming a private party.  I feel they had fair notice that this might be on the exam.

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Product Liability and 3D Printing

I’m going to do some posts on 3D printing this week, some of which relate to the paper that Deven and I are writing.  This one deals with product liability.

As I’ve said before (to great consternation), state product liability law is basically a dead field.  In large part, this is because of federal preemption.  But the growth of 3D printing, like other technological changes, may bring the common law back into vogue because Congress will not get its act together quickly to regulate this field.

Here’s the basic issue.  In a world of 3D printing, anyone could be a manufacturer.  Let’s say I make something from scratch in my 3D printer at home and that product (a toy, a cookie, a tool, a spare part) injures someone.  Should we apply the same principles of product liability to that person that we would to a firm?  Yes and no, I think.  We probably won’t require individuals to put warnings on what they make, but we may say that a design or manufacturing defect should lead to strict liability.  Or would we say that a negligence standard should apply to homemade products?

Now try this one on for size.  I upload a file that will make some something to a website.  Someone downloads my file, makes the item, and this injures someone.  Is the author of the file on the hook for a design defect claim?  What about the website?  While this could depend on a number of factors, courts will again need to think hard about how product liability rules should be adapted to this ecosystem.

We’re not there yet, but it’s coming.

Addictive by Design

I was honored to see Prof. John Banzhaf weigh in on a recent post on wellness programs. That post suggested parallels between the addictiveness of tobacco, and that of many food products. Little did I know the NYT was about to publish a blockbuster article on exactly that issue:

[In a 1999 meeting of food industry leaders,] [t]he first speaker was a vice president of Kraft named Michael Mudd. . . . As he spoke, Mudd clicked through a deck of slides — 114 in all — projected on a large screen behind him. The figures were staggering. More than half of American adults were now considered overweight, with nearly one-quarter of the adult population — 40 million people — clinically defined as obese. Among children, the rates had more than doubled since 1980.

Mudd then did the unthinkable. He drew a connection to the last thing in the world the C.E.O.’s wanted linked to their products: cigarettes. First came a quote from a Yale University professor of psychology and public health, Kelly Brownell, who was an especially vocal proponent of the view that the processed-food industry should be seen as a public health menace: “As a culture, we’ve become upset by the tobacco companies advertising to children, but we sit idly by while the food companies do the very same thing. And we could make a claim that the toll taken on the public health by a poor diet rivals that taken by tobacco.”

Fast food lawsuits are looking more prescient by the day.

Illustration: Via Engadget article on interactive ad patents.

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Revenge Porn and the Uphill Battle to Sue Site Operators

Last week, a group of women filed a lawsuit against the revenge porn site Texxxan.com as well as the hosting company Go Daddy!  Defendant Texxxan.com invites users to post nude photographs of individuals who never consented to their posting.  Revenge porn sites — whether Private Voyeur, Is Anyone Down?, HunterMoore.tv (and the former IsAnyoneUp?), or Texxxan.com — mostly host women’s naked pictures next to their contact information and links to their social media profiles. Much like other forms of cyber stalking, revenge porn ruins individuals’ reputations as the pictures saturate Google searches of their names, incites third parties to email and stalk individuals, causes terrible embarrassment and shame, and risks physical stalking and harm.  In the recently filed suit, victims of revenge porn have brought invasion of privacy and civil conspiracy claims against the site operator and the web hosting company, not the posters themselves who may be difficult to find. More difficult though will be getting the case past a Rule 12(b)(6) motion to dismiss.

In this post, I’m going to explain why this lawsuit is facing an uphill battle under Section 230 of the Communications Decency Act and why extending Section 230’s safe harbor to sites designed to encourage illicit activity seems out of whack with the broader purpose of CDA.  In my next post, I will talk about cases that seemingly open the door for plaintiffs to bring their suit and why those cases provide a poor foundation for their arguments.

Does Section 230 give revenge porn operators free reign to ruin people’s lives (as revenge porn site operator Hunter Moore proudly describes what he does)?  Sad to say, they do.  Read More

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“Game Of Negligence” And Other 1L Haiku

We recently covered proof of negligence in my torts class at the University of Washington. I gave my students an optional assignment: write a haiku about the reading (pages 238-67 of the 12th edition of Prosser). Here is sampling of their efforts, complete with kigo. Enjoy!

 

Winter is coming
Dangerous like icy roads,
Bananas and grapes.

 

No—don’t cry, they said
Not over milk that’s been spilled
but K-Mart will cry

 

Fall’s weary pattern
Of darkness, of rain and death
It speaks for itself.

 

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Can Dying Be Good For Your Career?

Now that the election is over, I can finally blog about Michael Jackson.  A civil suit was filed by Jackson’s estate against Conrad Murray, who was convicted of criminal wrongdoing in Jackson’s death.  Murray’s most intriguing defense is that Jackson’s death was actually beneficial to the estate and thus there was no overall harm to his family.

It can be true that a celebrity will earn more dead than alive.  That possibility seems to rest largely on how the person died (was it notorious?) and whether they died young.  Going one step further and saying that this marginal gain outweighs the loss of consortium that family members suffer is something that, as far as I know, no court or jury has taken.  In Jackson’s case, the calculation is complicated by the fact that he was (apparently) a spendthrift, and thus his net income was also boosted once he died because he was no longer spending the money.  So what do you think?  Can this defense succeed?