Felsher v. University of Evansville

• Decision Date: 01 October 2001
• Docket Number: No. 82S04-0008-CV-477.,82S04-0008-CV-477.
• Citation: 755 N.E.2d 589
• Parties: Dr. William M. FELSHER, Appellant (Defendant Below), v. UNIVERSITY OF EVANSVILLE, Dr. James S. Vinson, Dr. Stephen G. Greiner, and Dr. Larry W. Colter, Appellees (Plaintiffs Below).
• Court: Indiana Supreme Court

755 N.E.2d 589

Dr. William M. FELSHER, Appellant (Defendant Below), v. UNIVERSITY OF EVANSVILLE, Dr. James S. Vinson, Dr. Stephen G. Greiner, and Dr. Larry W. Colter, Appellees (Plaintiffs Below).

No. 82S04-0008-CV-477.

Supreme Court of Indiana.

October 1, 2001.

William M. Felsher, pro se, Evansville, IN, Attorney for Appellant.

Thomas O. Magan, Scott F. Hill, Kahn, Dees, Donovan & Kahn, LLP, Evansville, IN, Attorneys for Appellees.

Daniel P. Byron, Steven D. Hardin, Jennifer F. Perry, Brad R. Maurer, McHale, Cook & Welch, Indianapolis, IN, Attorneys for Amici Curiae, Hoosier State Press Assn., LIN Television Corp., National Assn. of Broadcasters, and Society of Professional Journalists. SHEPARD, Chief Justice.

We live in an age when technology pushes us quickly ahead, and the law struggles to keep up. In this case, we encounter for the first time assumption of identity via the Internet. A number of existing statutes and common law precepts seem to serve surprisingly well in this dramatic new environment.

Dr. William Felsher appeals the trial court's grant of summary judgment in favor of his former employer, the University of Evansville, and its officials. The court's order permanently enjoined Felsher from engaging in certain Internet activity including the creation and use of e-mail addresses and websites having an appearance of association with the University. He raises several issues, which we restate as:

I. Whether the University of Evansville is entitled to bring an action for invasion of privacy, and

II. Whether the injunction placed upon Felsher was necessary and proper.

We thus address protection afforded to corporations and individuals against unauthorized and retaliatory use of private or personal names on the Internet.

Facts and Procedural History

The University of Evansville is a not-for-profit corporation, originally founded at Moores Hill, Indiana, in 1854.¹ Felsher was formerly a professor of French. The University terminated him in 1991.

In 1997, Felsher created Internet websites and electronic mail accounts containing portions of the names of Dr. James S. Vinson, President of the University; Dr. Stephen G. Greiner, Vice President for Academic Affairs; and Dr. Larry W. Colter, Dean of the College of Arts and Sciences.² Each of these addresses also contained the letters UE, which is a common abbreviation for the University of Evansville.

Felsher featured articles that he had written on the websites he created. The articles alleged wrongdoings by Vinson and other University employees. One article alleged that President Vinson violated the University Faculty Manual. In another article Felsher stated that one UE professor had publicly declared himself unqualified to teach one of his courses. (R. at 54-55.)

Using the e-mail accounts he created, Felsher sent mail to several universities nominating each of the University officials, in turn, for various academic positions. In his e-mail message, Felsher directed the reader to one of the web pages he had created as a reference for the nominee's activities.

The University, Vinson, Greiner and Colter filed this lawsuit alleging invasion of privacy, and Felsher then removed the e-mail addresses and the websites. Felsher later created another twelve websites containing roughly the same information as had appeared on the previously removed sites.

Pending resolution of the suit, the University sought and obtained a preliminary injunction prohibiting Felsher from engaging in certain Internet activities. The court denied Felsher's motion to remove the University as a plaintiff. The trial court ultimately granted summary judgment in favor of the University and its officials, concluding that they have "a protectable privacy interest in their rights to the exclusive use of their identities .... [and that Felsher] invaded this interest when he appropriated the[ir] names ... for use in e-mail correspondence .... and for his benefit in creating the Internet web sites...." (R. at 281-82, 291.)

The court's order permanently enjoined Felsher from (1) "[a]ppropriating the names and likenesses" of the University, Vinson, Greiner, Colter, "or the name of any other person or individual associated with the University [ ] for any purpose"; (2) "USING THE E-MAIL ADDRESSES" he created "or any other e-mail address that incorporates the [plaintiffs'] names ... [including] `UE' ... or the name of any other person or individual associated with the University"; (3) "[m]aintaining any web site" with a URL or address containing any of the plaintiffs' names, including UE, "or the names of any person or individual associated with the University ..."; and (4) "[n]ominating [ ] Vinson, [ ] Greiner, [ ] Colter or any person or individual associated with the University for positions with any other schools, colleges, or universities." (R. at 281-82.)³

The Court of Appeals affirmed. Felsher v. Univ. of Evansville, 727 N.E.2d 783 (Ind.Ct.App.2000). We grant Felsher's petition to transfer.

Standard of Review for Summary Judgment

Summary judgment is proper if the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Ind. Dep't of Env't Mgmt. v. Med. Disposal Servs., Inc., 729 N.E.2d 577 (Ind.2000). On appeal, we construe all facts and reasonable inferences drawn from those facts in a light most favorable to the nonmoving party. Butler v. Peru, 733 N.E.2d 912 (Ind.2000). We carefully review the trial court's decision to ensure that the responding party was not improperly denied his day in court. Id.

I. Invasion of Privacy and Corporations

Felsher first argues that the trial court erred because the University is not entitled to an invasion of privacy claim.⁴ (Appellant's Br. at 13.) Felsher asserts that the right to privacy has an "intensely personal nature" and therefore applies to real persons and not to corporations. (Id. at 16.)

Representatives of several news organizations, as amici curiae, support Felsher's petition to transfer stating, "[W]ell established privacy law ... precludes corporations from bringing an action for invasion of privacy." (Amici Curiae Br. at 3.)⁵ Amici accurately assert that no other state has recognized a claim for invasion of privacy by a corporation. (Id. at 2.)

The issue of whether a corporate entity is entitled to an invasion of privacy claim is one of first impression in Indiana. We begin our analysis by acknowledging the position taken in the Restatement (Second) of Torts, § 652A(1) (1977): "One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other."

This Court has previously observed that the term "invasion of privacy" is a label used to describe "four distinct injuries: (1) intrusion upon seclusion, (2) appropriation of [name or] likeness, (3) public disclosure of private facts, and (4) false-light publicity." Doe v. Methodist Hosp., 690 N.E.2d 681, 684 (Ind.1997) (citing Restatement (Second) of Torts, § 652A (1977)). In Doe, we examined the genesis of the privacy tort, apparently originating in an 1890 law review article written by Samuel Warren and future U.S. Supreme Court Justice Louis Brandeis. Id. Professor William Prosser later characterized the authors as heralding "the emergence of a new, if ill-defined, right to privacy" signaled by several decisions granting relief "on the basis of defamation or invasion of some property right, or a breach of confidence or an implied contract." Id. (quoting William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 384 (1960)).

In Doe, we also noted the Second Restatement's view that the four injuries involved in the privacy tort are "only tenuously related." Doe, 690 N.E.2d at 684. We explained that the four wrongs were separate and "united only in their common focus on some abstract notion of being left alone." Id. (citing Restatement (Second) of Torts, § 652A cmt. b (1977)). We indicated that "recognizing one branch of the privacy tort does not entail recognizing all four." Id. at 685. Our discussion of this history and the Second Restatement served as a prelude to our decision not to recognize a branch of the tort involving the public disclosure of private facts. Id. at 682, 693.

The only injury at issue here is appropriation.⁶ The University argues that it may maintain an action for appropriation because the claim addresses a property interest rather than personal feelings. (Appellees' Br. at 8 (citing Restatement (Second) of Torts, § 652C cmt. a (1977) ("right created by [appropriation rule] is in the nature of a property right....")).) The University also relies on Restatement § 652I, which says, "Except for the appropriation of one's name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded." (Appellees' Br. at 8.)

While we agree that an appropriation claim involves a privacy issue "in the nature of a property right," we think the University's reliance on the exception set forth in the Restatement is misplaced. Each of the comments to Restatement § 652I negates the inference that a corporation is entitled to an appropriation claim. The first comment states that the privacy right is personal. The comment then states a rule: "The cause of action is not assignable, and it cannot be maintained by other persons...." Restatement (Second) of Torts, § 652I cmt. a (1977). The appropriation exception that follows addresses this rule, not the personal character of the right.

The second comment discusses the general requirement that "the action for the invasion of privacy cannot be maintained after the death of the individual whose privacy is invaded." Id., cmt. b. This comment states an exception for appropriation actions due to its "similar[ity] to [an] impairment of a property right...." The exception is clarified as a recognition of survival rights in an appropriation...