Shibley v. Time, Inc.

• Citation: 321 N.E.2d 791,40 Ohio Misc. 51
• Decision Date: 14 May 1974
• Docket Number: No. 915246,915246
• Parties: , 69 O.O.2d 495 Norman W. SHIBLEY, Plaintiff, v. TIME, INC., et al., Defendants.
• Court: Court of Common Pleas of Ohio

Page 51

40 Ohio Misc. 51

321 N.E.2d 791, 69 O.O.2d 495

Norman W. SHIBLEY, Plaintiff, v. TIME, INC., et al., Defendants.

No. 915246.

Court of Common Pleas of Ohio, Cuyahoga County.

May 14, 1974.

John G. Lancione, for plaintiff Norman W. Shibley.

David M. King, Cleveland, for intervenor Joseph Kalk.

Harry C. Nester and David C. Weiner, Cleveland, for defendant Playboy Enterprises, Inc.

Ezra K. Bryan and Don M. Pace, Cleveland, for defendants Time, Inc. and Esquire, Inc.

George F. Karch and Alan R. Lepene, Cleveland, for defendants Downe Publishing Inc. and Downe Communications, Inc.

Ellis M. McKay, Robert J. Hoerner and Bruce J. Havighurst, Cleveland, for defendant American Express Company.

FINK, Judge.

This action comes before the court on defendants' motions to dismiss the complaint of the plaintiff and the cross-claim of the intervenor on the ground that they have failed to state a claim upon which relief can be granted.

The plaintiff's amended complaint and the intervenor's cross-claim, the material allegations of which are deemed to be true for purposes of ruling on the defendants' motions for dismissal, in essence make the following claim: Plaintiff and members of the class which he represents have subscribed to publications or credit card privileges of defendants, and that said defendants have, without permission, sold, rented, or otherwise permitted the names of plaintiff and the members of the class he represents to be entered into commercial use or distribution to persons not in privity with the publisher whose publication was subscribed for or the credit card company with which the member of the class had a contract.

Accepting these facts as true, the court must decide whether any relief can be granted. Under Civil Rule 12(B)(6) of the Ohio Rules of Civil Procedure, the court, after a motion under the rule by defendants must determine the sufficiency of the statement of a claim for relief on the pleadings.

Based on the above claim, the plaintiff makes the following statement in his amended complaint:

'* * * as a direct result of the wrongful sale, rental or permission of said names to be entered into commercial use or distribution, the class has suffered an invasion of privacy; and, the defendants have been unjustly enriched through such wrongful sale of plaintiff's names and addresses.'

The intervenor asked to be made a defendant in order to assert a claim against the original defendants which is different from those asserted by plaintiff. Whereas plaintiff prayed that the court issue an order enjoining and prohibiting defendants from selling, renting or otherwise permitting said names to be entered into commercial use or distribution to those not in privity with the subscription or credit card contract, the intervenor asks the court to allow subscribers to make an election. In later briefs filed by the plaintiff, he also indicated that an election should be allowed. In essence, the plaintiff and intervenor came to agree that the subscriber has the right of approval or rejection before his name and address, together with the fact that he subscribed to a certain magazine or used a certain credit card can be sold, rented, or otherwise used as a commercial property by the party with whom he has the contract of subscription or credit card privileges.

The relief prayed for is based on the assumption that the alleged wrongful acts committed by the defendants in this matter are an actionable invasion of privacy. Finding no authority to support the assumption that such use of a subscriber's name as a commercial property is an actionable invasion of privacy, the court finds that it cannot grant any relief on the claims made by the plaintiff and intervenor. Defendants' motions under Civ.R. 12(B)(6) are well taken and are hereby granted.

In the plaintiff's brief in opposition to defendants' motion to dismiss, plaintiff states that his complaint may not fit any of the generally recognized definitions of invasion of privacy. Plaintiff's language in the brief is as follows: 'It is true that this cause of action does not fit into the orthodox framework of the traditional invasion of right of privacy case.' (Emphasis added.) Briefs of the defendants also point out the unusual nature of plaintiff's claim. It appears that no cases have been reported which support plaintiff's claim. Here reference should be made to two reported cases concerned with the sale or transfer of lists of names and addresses without the prior consent of those whose names are on the list which fail to support plaintiff's claim of invasion of privacy.

One such case is N. L. R. B. v. British Auto Parts (D.C., C.D.Cal.1967), 266 F.Supp. 368. This case deals with the N.L. R. B.'s election rule applicable to consent elections, called the Excelsior rule. Under this rule an employer is required to file with the board's regional director a list of the names and addresses of all employees eligible to vote in a representation election. The regional director is then to make the list available to all parties to the representation proceeding. The defendant contended that the Excelsior rule was unconstitutional as violative of the employees' rights to free association and privacy. In regard to this contention the court said at page 373:

'* * * it is clear that no such rights are invaded by the Excelsior rule * * *. With respect to the employees' 'right to privacy,' as the Supreme Court pointed out in Martin v. City of Struthers, 319 U.S. 141, 143-149, 63 S.Ct. 862, 87 L.Ed. 1313, 1317-1320 (1943), those who do not welcome visits to their homes are free to turn the visitors away and will have the protection of the law in doing so.'

It is clear that the court only gave consideration to the possibility of unwanted solicitation by union organizers in workers' homes, resulting from making employees' names and addresses available to the union, as a possible invasion of privacy. Apparently the court did not feel that any comment was necessary regarding the notion that simply compiling a list of employees' names and addresses and making the list available to others might be an invasion of privacy in itself.

Another such case is Lamont v. Commissioner of Motor Vehicles (D.C., S.D.N.Y.1967), 269 F.Supp. 880, affirmed, 2 Cir., 386 F.2d 449. In this case, plaintiff alleged that he, and others like him, who are compelled to register their motor vehicles with the defendant, suffered invasion of privacy as a result of defendant's actions under a state statute. The statute authorizes the defendant to allow third persons to compile a list of the registrants which can be sold, leased or used by the third person. The lists were used for solicitation through the mails, by telephone, and in person, of those on the list for purchase of merchandise. The court, at page 884, said this about plaintiff's claim:

'* * * plaintiff proposes to stretch the constitutional dimensions of 'privacy' far beyond any reasonably foreseeable limits the courts ought to enforce. His claim is in an area where there is no invidious discrimination, no problem of a wrong unreachable at the polls, no suggestion of an affliction confined to a relatively helpless minority.'

The court found that plaintiff's contentions were 'plainly unsubstantial' and the complaint was dismissed.

The tort of invasion of privacy is defined in Ohio, as follows:

'An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.' Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d 340.

Dean Prosser in his Handbook of The Law of Torts (4 Ed., 1971), Section 117, states that invasion of the right of privacy is not a single tort but consists of four distinct torts. These four forms of invasion of privacy, which are based on different elements, are:

(1) Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

(2) Public disclosure of embarrassing private facts about the plaintiff;

(3) Publicity which places the plaintiff in a false light in the public eye; and

(4) Appropriation, for defendant's advantage, of plaintiff's name or likeness.

By plaintiff's admission his claim does not fit into any of the above definitions. Plaintiff is also not supported by any reported cases. Dean Prosser adds support to defendants when, at page 816, in discussing possible expansion of the law regarding invasion of privacy, he states:

'* * * Thus far no such expansion has occurred; and there is as yet no decided case allowing recovery which does not fall fairly within one of the four categories with which the courts have thus far been concerned.'

As defendants have pointed out, plaintiff and intervenor should look for relief to the legislative branch. The General Assembly has acted in the area of sales of names and addresses to direct mail advertisers in two instances. One concerns the sale by the state of Ohio of names and addresses of registrants of motor vehicles. Another concerns the regulation of the use and transfer of computerized personal data. Because of the General Assembly's activity in this area, the court feels it would be appropriate for the plaintiff and intervenor to seek relief from that branch.

The founders of our nation constitutionally set up a government composed of three branches-the legislative executive and judicial. It is improper for one to invade the province of the other. This is a case peculiarly within the province of the legislative branch and it would be improper for the judicial branch to usurp the legislative function. The judicial branch may interpret the laws enacted by the legislative branch but it may not legislate, and that is what...