Meyerkord v. Zipatoni Co.

• Decision Date: 23 December 2008
• Docket Number: No. ED 90736.,ED 90736.
• Citation: 276 S.W.3d 319
• Parties: Greg MEYERKORD, Appellant, v. The ZIPATONI COMPANY, Respondent.
• Court: Missouri Court of Appeals

276 S.W.3d 319

Greg MEYERKORD, Appellant, v. The ZIPATONI COMPANY, Respondent.

No. ED 90736.

Missouri Court of Appeals, Eastern District.

December 23, 2008.

Steven D. Rineberg, St. Louis, MO, for Appellant.

Randall D. Grady, St. Louis, MO, for Respondent.

ROBERT G. DOWD, JR., Judge.

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 contends 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 corporation 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.alliwant forxmasisapsp.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.alliwant forxmasisapsp.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.

In his sole point, Meyerkord argues the trial court erred in granting Zipatoni's motion to dismiss because his claim represents the "classic case" of false light invasion of privacy as set forth by the Missouri Supreme Court and the Restatement (Second) of Torts because Zipatoni publicly and falsely attributed a website to Meyerkord.

We review the grant of a motion to dismiss de novo. Platonov v. The Barn, L.P., 226 S.W.3d 238, 240 (Mo.App. E.D. 2007). A motion to dismiss is solely a test of the adequacy of the petition. Id. We accept as true all of the plaintiff's averments and view the allegations in the light most favorable to the plaintiff. Id. We review the petition in an almost academic manner to determine if the facts alleged meet the elements of a recognized cause of action or of a cause that might be adopted in that case. Avila v. Community Bank of Virginia, 143 S.W.3d 1, 4 (Mo.App. W.D. 2003).

Since the early twentieth century, Missouri has recognized a cause of action for an "invasion of privacy." Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 477 (Mo. banc 1986) citing Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076 (1911). 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. Sullivan, 709 S.W.2d at 477.

An "invasion of privacy" is a general term used to describe four different torts. Id. at 478. The Restatement (Second) of Torts spells out these four different torts in Section 652A, which provides:

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.

(2) The right of privacy is invaded by

(a) unreasonable intrusion upon the seclusion of another, as stated in Section 652B; or

(b) appropriation of the other's name or likeness, as stated in Section 652C; or

(c) unreasonable publicity given to the other's private life, as stated in Section 652D; or

(d) publicity that unreasonably places the other in a false light before the public, as stated in Section 652E.

We have acknowledged this Restatement classification, but we have yet to recognize a cause of action for false light invasion of privacy. Sullivan, 709 S.W.2d at 478; see also Buller v. Pulitzer Pub. Co., 684 S.W.2d 473, 481 (Mo.App. E.D.1984)(finding the Restatement distinctions have been adopted by use if not by express language.).

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. Id. 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. Id. at 478. 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 classic case is when one publicly attributes to the plaintiff some opinion or utterance, whether harmful or not, that is false, such as claiming that the plaintiff wrote a poem, article or book which plaintiff did not in fact write.

Id. at 480. 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. Id. at 479. 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. Id.

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. Welling v. Weinfeld, 113 Ohio St.3d 464, 866 N.E.2d 1051, 1057 (2007). 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. Id. On the other hand, the plaintiff's privacy is not invaded when unimportant false statements are made, even when they are made deliberately. Id. at 1058. It is only when there is such a major misrepresentation 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. Id.

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.¹ West v. Media General Convergence, Inc., 53 S.W.3d 640, 644 (Tenn.2001). 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. Id. On the other hand, a minority of jurisdictions have refused to recognize the tort of false light invasion of privacy.² Id.

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. Id. at 645.

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,...