2009 John Marshall Law School International Moot Court Competition in Information Technology and Privacy Law: Brief for the Respondent, 27 J. Marshall J. Computer & Info. L. 169 (2009)

Authors

Michael Jones
Stuart Ladner
Sabrina Stone

Abstract

SUMMARY OF THE ARGUMENT: Nevilson has not raised a genuine issue of material fact on his intrusion upon seclusion claim. First, Nevilson cannot show Marshoogle intentionally invaded Nevilson’s privacy. When Marshoogle captured the images for its Marshall Avenue Perspective feature, no one physically entered Nevilson’s property or used sensory enhancements or telephoto lenses to pry into his private space. Second, Marshoogle’s actions were not highly offensive to a reasonable person because the photographs were not captured in an effort to exploit or defame Nevilson, but rather were captured in an effort to produce a free and effective virtual map for Marshall residents. A reasonable person would not be offended by the context, conduct, and circumstances surrounding Marshoogle’s actions. Third, Nevilson did not have a reasonably objective expectation of privacy because the photographs were taken in public, where anyone could have viewed Nevilson’s conduct. Finally, Nevilson’s damages are not the result of the actual act of taking the photographs. Rather, he complains about the publicity given to this information. Because the tort of intrusion upon seclusion is a conduct-based tort, and not a publication-based tort, the trial court and the court of appeals properly held that summary judgment was appropriate on the intrusion upon seclusion claim. II. Nevilson similarly has not raised a genuine issue of material fact on his publication to private facts claim. First, the photographs of Nevilson were taken from a public vantage point, where anyone passing by would have been able to view Nevilson and his actions. Nevilson could have, but chose not to, take affirmative measures to shield his actions from public view and, as a result, cannot show a reasonable expectation of privacy under the circumstances. Second, the published photographs do not reveal facts that a reasonable person would find highly offensive. The photographs, as Nevilson contends, show nothing more than Nevilson smoking from a hookah. While tabloid media outlets expounded on the possibilities of what other substances Nevilson may have been smoking, Nevilson was a public figure and had media access to clear up any misconceptions. Finally, because Nevilson was a well-known public figure and role model in Marshall, the photographs were of legitimate public concern. Because of these evidentiary showings, the trial court and the court of appeals properly held that summary judgment was appropriate on the publication to private facts claim. III. Nevilson similarly has not raised a genuine issue of material fact on his tortious interference with business expectancy claim. In his estimation, an endorsement contract—contingent entirely on his athletic performance—qualifies as a reasonable and valid business expectancy. Nevilson is mistaken. While he may have high hopes for a good showing, the possibility of winning a competitive sporting event has never been something a court has been willing to characterize as a valid business expectancy to support a tortious interference claim. Furthermore, Nevilson cannot show that Marshoogle acted to prevent that expectancy from ripening. The photographs on M.A.P. were merely incidental to the M.A.P. feature, and the posting on “SportsBlog” was consistent with the reporter’s First Amendment rights to properly report news of legitimate public concern. Because Nevilson cannot establish that Marshoogle caused Nevilson to lose a speculative and contingent endorsement, the trial court and the court of appeals properly held that summary judgment was appropriate on the tortious interference with business expectancy claim. This Court should affirm the court of appeals in all respects.

Recommended Citation

Michael Jones, Stuart Ladner & Sabrina Stone, 2009 John Marshall Law School International Moot Court Competition in Information Technology and Privacy Law: Brief for the Respondent, 27 J. Marshall J. Computer & Info. L. 169 (2009)