Shibley v. Time, Inc.
| Decision Date | 19 June 1975 |
| Citation | 45 Ohio App.2d 69,341 N.E.2d 337 |
| Parties | , 82 A.L.R.3d 765, 74 O.O.2d 101 SHIBLEY et al., Appellant, v. TIME, INC., et al., Appellees. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. When a magazine publisher sells subscription lists to direct mail advertisers without the consent of the individual subscribers he does not violate the subscribers' rights of privacy.
2. In a purported class action where the plaintiff and intervenor present claims which are adverse to each other, their claims are not typical of the class as a whole and when they are represented by their respective law firms they cannot fairly and adequately represent the interests of the class.
John G. Lancione, Cleveland, for appellant.
David M. King, Cleveland, for intervenor Joseph Kalk.
Ezra K. Bryan and Don Pace, Cleveland, for appellee Time, Inc.
Harry C. Nester and David C. Weiner, Cleveland, for appellee Playboy Enterprises, Inc.
George F. Karch, Jr., Cleveland, for appellee.
Plaintiff, Norman W. Shibley, and intervenor, Joseph Kalk, have both filed appeals from the trial court's granting of all defendants' motions to dismiss the complaint and crossclaim for failure to state a claim upon which relief can be granted. They also appeal a finding by the trial court that this action may not be maintained as a class action. The ruling appealed from is reported as Shibley v. Time (1974), 40 Ohio Misc. 51, 321 N.E.2d 791. The appeals of plaintiff and intervenor have been consolidated by this court.
This action originated with the plaintiff's complaint against the publishers of Time Magazine, Esquire, Playboy, and Ladies Home Journal and against the issuer of American Express credit cards. The complaint alleged that the defendants' practice of selling subscription lists to direct mail advertising businesses without the prior consent of subscribers constituted an invasion of privacy and unjust enrichment. Plaintiff sought certification as a class action on behalf of all subscribers, an injunction against defendants from selling subscription lists, damages, and costs. Intervenor entered this action as a member of the purported class seeking to protect the interests of those members who wished to waive their privacy right and permit their names to be sold to direct mail advertisers. His cross-claim demanded that defendants be required to seek the consent of all subscribers before including their names on lists sold to advertisers. Subsequent to the dismissal of all defendants and the denial of a class action appellants entered into a settlement with American Express and therefore do not appeal the judgment as to that defendant.
On appeal plaintiff has modified his original position and has joined intervenor in demanding that defendants obtain the prior consent of subscribers before selling subscription lists. A motion to dismiss the appeal for failure to list assignments of error was overruled by this court. It is clear that this appeal consists of two basic issues: 'Do the complaint and cross-claim state a cause of action?' and 'Could this action be maintained as a class action?'
Appellants take the position that an adverse ruling as to the first issue makes a ruling on the second issue unnecessary. We do not agree. Pursuant to App.R. 12(A) this court is under a duty to pass upon all errors assigned. Furthermore, should we determine that this is properly a class action any future settlements between the parties similar to the one entered into by appellants and American Express would require approval of the court and notice to all members of the class under Civ.R. 23(E).
Appellants' argument on appeal is that defendants' practice of renting and selling subscription lists constitutes an invasion of privacy because it amounts to a sale of individual 'personality profiles,' which subjects the subscribers to solicitations from direct mail advertisers. The reasoning behind this position is the contention that the buyers of these lists are able to draw certain conclusions about the financial position, social habits, and general personality of the persons on the lists by virtue of the fact that they subscribe to certain publications and that this information is then used in determining the type of advertisement to be sent. This, appellants contend, is an invasion of privacy which was not consented to nor made a part of the original subscription contract. The argument then continues that defendants have therefore been unjustly enriched at the subscribers' expense.
We cannot agree with appellants that this practice constitutes an invasion of privacy and therefore find that the trial court correctly granted defendants' motions to dismiss. Invasion of privacy, as it is recognized in Ohio, is defined in the second syllabus of Housh v. Peth (1956), 165 Ohio St. 35, 133 N.E.2d 340, 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.'
Recognizing that their situation does not fall within any definition of invasion of privacy as yet propounded, appellants nevertheless attempt to bring themselves within Housh v. Peth, supra by arguing that defendants' activity constitutes an 'appropriation of one's personality.' It is clear from a reading of the authorities dealing with invasion of privacy that the 'appropriation or exploitation of one's personality' referred to in Housh refers to those situations where the plaintiff's name or likeness is displayed to the public to indicate that the plaintiff indorses the defendant's product or business. See W. Prosser, Law of Torts § 117 (4th ed.1971). The activity complained of here does not fall within that classification.
That defendants' activity does not constitute an invasion of privacy is indicated by the fact that the Ohio legislature has enacted R.C. 4503.26 permitting the sale of names and addresses of registrants of motor vehicles. The present state of the law as to the relation between the right of privacy and the practice of selling subscription lists to direct mail advertisers is summarized in a case challenging the constitutionality of a New York statute authorizing the Commissioner of Motor Vehicles to sell registration lists. Lamont v. Commissioner of Motor Vehicles (1967), D.C., 269 F.Supp. 880. In that case the court stated:
The right of privacy does not extend to the mailbox and therefore it is constitutionally permissible to sell subscription lists to direct mail advertisers. It necessarily follows that the practice complained of here does not constitute an invasion of privacy even if appellants' unsupported assertion that this amounts to the sale of 'personality profiles' is taken as true because these profiles are only used to determine what type of advertisement is to be sent.
Appellants have requested that this court make new law by expanding the present concept of invasion of privacy to include the practice complained of here. It is not within our province to create a specific right which is not...
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