If a basketball player posts a public photo to Instagram, and then another basketball player reposts the photo, can the first basketball player sue for Invasion of Privacy, Intentional Infliction of Emotional Distress, Defamation, and General Negligence?
The answer is yes, you can sue, but you will not survive a motion to dismiss. That is the lesson from Binion v. O’Neal, 2015 U.S. Dist. LEXIS 43456, 1 (E.D. Mich. Apr. 2, 2015).
US District Judge Avern Cohn started this opinion in the most logical place: Instagram’s terms of service. The Court quote Instagram’s FAQ’s and privacy statement as follows:
Instagram is a social media website that describes itself as a “fun and quirky way to share your life with friends through a series of pictures.” (FAQ, Instagram.com, https://instagram.com/about/faq/ (last visited Mar. 5, 2015)) Every Instagram user is advised that “[a]ll photos are public by default which means they are visible to anyone using Instagram or on the instagram.com website.” (Id.) However, Instagram allows users to “make [their] account private” such that “only people who follow [the user] on Instagram will be able to see [their] photos.” (Id.) If the Instagram user fails to make his/her account private, “anyone can subscribe to follow [their] photos.” (Id.)
Binion v. O’Neal, 2015 U.S. Dist. LEXIS 43456, 2-3 (E.D. Mich. Apr. 2, 2015).
The Court reviewed each claim against Defendant Burke. The analysis focused heavily on Instagram’s privacy policies and Michigan law, as case was based in diversity.
The Invasion of Privacy cause of action was based on all four traditional claims: (1) “[i]ntrusion upon the plaintiff’s seclusion or solitude, or into his private affairs”; (2) “[p]ublic disclosure of embarrassing private facts about the plaintiff”; (3) “[p]ublicity which places the plaintiff in a false light in the public eye”; (4) “[a]ppropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” Binion, at *6.
All of these claims failed. First, the Court found that a publicly posted photo to Instagram by a Plaintiff could not form a claim for “Intrusion upon Seclusion.” Binion, at *7. The Court agreed with the Defendant “that no reasonable person, particularly in the social media age, would find it objectionable to obtain and repost a photograph that someone had already posted publicly.” Id.
The Court also found there was no public disclosure of embarrassing private facts or “false light” claims from reposting a photo that originated from the Plaintiff. Binion, at *7-9. There was also no appropriation, as there was no evidence that reposting the photo of the Plaintiff gave the Defendant any pecuniary benefit. Binion, at *10.
The intentional infliction of emotional distress (IIED) requires a Plaintiff prove “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.” Binion, at *11. Reposting a publicly available photo from social media does not go “beyond all possible bounds of decency” to sustain a claim for IIED. Id.
The Court’s analysis of defamation was interesting. Defamation requires (1) “a false and defamatory statement concerning the plaintiff”; (2) “an unprivileged publication to a third party”; (3) “fault amounting to at least negligence on the part of the publisher”; and (4) “either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Binion, at *12.
The Court focused on the fact there were no statements attributed to the Defendant. The Plaintiff argued that the Defendant’s posting of the photo implied the Plaintiff was mentally handicapped or his appearance made him “worthy of ridicule.” Binion, at *13.
The Court rejected these arguments. There was no evidence that the Defendant had any statements that implied the Plaintiff was mentally handicapped. Moreover, Michigan Courts have held that online statements are “statements of pure opinion, rather than statement or implications of actual, provable fact.” Binion, at *13-14, citing Ghanam v Does, 303 Mich. App. 522, 547 (2014).
The Plaintiff’s general negligence claim also failed, because there was not a legal duty between both basketball players, other than “the general duty to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Binion, at *14. Moreover, the Defendant argued that his relationship with the “Plaintiff is no different than with the millions of other Instagram users who post photographs that can be shared, reposted, and commented on.” Id.
The Court agreed. There is no case law precedent that supports the legal theory that there is a “social media duty” on reposting photos with foreseeable consequences of emotional harm. Id.
Bow Tie Thoughts
The collection of Instagram photos in cases involving online torts is an interesting one. The subject photos can exist in the Instagram App, on a party’s Instagram photo online, and in the Camera Roll of the phone. The “right” image to capture for litigation can turn on the type of case. Many times simply printing the image as a PDF from Instagram.com could be all that is required. Other cases might just require a screen capture of the app on the smartphone. There are situations where collecting the photo from the smartphone is required, such as when GPS metadata is relevant. Whatever the situation, attorneys should consider what is the relevant source of information to preserve.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.