2009 John Marshall Law School International Moot Court Competition in Information Technology and Privacy Law: Brief for the Petitioner, 27 J. Marshall J. Computer & Info. L. 131 (2009)

Authors

Megan Peterson
Tyler Rench

Abstract

SUMMARY OF THE ARGUMENT: As encroaching technologies shrink the realm of privacy and expose intimate details of the home, courts must craft a solution that will provide a remedy to the injured. When Marshoogle’s prying cameras took photographs of Nevilson seated inside his home, they invaded his privacy by intruding into his private area of seclusion and this court should give Nevilson the opportunity to seek a remedy. Because Nevilson was inside his home when the images were captured, he had a reasonable expectation of privacy, which cannot be lost simply by leaving his curtains open. Marshoogle’s cameras were intentionally photographing the interior of private residences and Marshoogle was aware that their photographs captured private matters. A jury would be capable of finding, and should have been allowed to determine, that the use of a nine-camera, car-mounted, drive-by imaging system is highly offensive to a reasonable person. Therefore, Nevilson properly satisfied the elements of intrusion upon seclusion and summary judgment should not have been granted. The publication of such photographs further invaded Nevilson’s privacy because they resulted in the publicity of his private life. When a person is secretly photographed while inside his home engaging in private acts, he maintains a reasonable expectation of privacy and has not left himself open to the public eye. Marshoogle’s photographs represent only a single frame of an individual’s entire life, striping the images of all contexts and depriving Nevilson of his autonomy. It is offensive that Marshoogle widely dispersed the images across the Internet, linked the photographs with addresses of private residences, and failed to protect the privacy of the individuals captured therein. Furthermore, the ability of the images to be reproduced, edited, and saved makes the publication most objectionable. Because Marshoogle published the private images of Nevilson in his home under false allegations and without connection to his diving abilities, the matter is not of a legitimate public concern. Thus, the elements of Nevilson’s claim for publication of private facts have been properly established and the lower courts’ grant of summary judgment was in error. Upon publication of the photographs, Marshoogle continued to harm Nevilson by tortiously interfering with his business expectations. Not only did Marshoogle fail to blur Nevilson’s face in the M.A.P. software, but also their SportsBlog feature directed Internet users to the images. Further, the SportsBlog post insinuated that Nevilson used illicit substances and then directly referenced the proposed endorsement deal with Sunshine. As a result, Marshoogle’s actions required Nevilson to defend his reputation, which caused him four months of stress and distraction. This prevented Nevilson from properly training for the Olympic trials, and thus caused Nevilson to suffer the loss of his expected contract with Sunshine. Therefore, the grant of summary judgment was erroneous because Nevilson established each element of tortious interference with business expectancy. The lower courts erred in by granting summary judgment in favor of Marshoogle because Nevilson’s claims present genuine issues of fact, which a jury must decide. Not only has Nevilson properly pleaded each cause of action, but his allegations also exceed the summary judgment standards required of the nonmoving party. This court should find that Marshoogle’s intentional actions constitute an invasion into Nevilson’s seclusion in his home, a publication of his private facts, and a loss of his business expectancy.

Recommended Citation

Megan Peterson & Tyler Rench, 2009 John Marshall Law School International Moot Court Competition in Information Technology and Privacy Law: Brief for the Petitioner, 27 J. Marshall J. Computer & Info. L. 131 (2009)