(Solved) : Meyerkord V Zipatoni Co 276 Sw3d 319 Mo Ct App 2008 Plaintiff Greg Meyerkord Meyerkord App Q37155770 . . .
Meyerkord v. Zipatoni Co., 276 S.W.3d 319 (Mo. Ct. App.2008)
Plaintiff, Greg Meyerkord (“Meyerkord”), appeals from thejudgment dismissing Meyerkord’s action for false light invasion ofprivacy against defendant, The Zipatoni Co. (“Zipatoni”). Meyerkordcon- tends his claim represents the “classic case” of false lightinvasion of privacy. We vacate and remand. Some time prior to early2003, Meyerkord was employed by Zipatoni, a Missouri corpora- tionthat provides marketing services to businesses, and was listed asthe “registrant” for Zipatoni’s account with Register.com for thepurpose of the registration of websites. Meyerkord’s employmentwith Zipatoni ended in 2003.
In 2006, Zipatoni registered www.alliwantforxmasisapsp.comthrough Register.com. Meyerkord was listed as the registrant forwww.alliwantforxmasisapsp.com, but had no involvement in thecreation, registration, or marketing of the website, which was usedduring a viral marketing campaign initiated by Sony to sell itsPlay Station Portable (“PSP”). Shortly after the PSP campaignbecame active, bloggers, consumers, and consumer activist groupsbegan voicing on blogs and websites their concern, suspicion, andaccusations over the campaign and those associated with it,including Zipatoni and Meyerkord.
Thereafter, Meyerkord filed an action against Zipatoni for falselight invasion of privacy because Zipatoni failed to remove him asthe registrant for its account with Register.com and registeredwww.alliwantforxmasisapsp.com with Meyerkord listed as theregistrant when he no longer worked for Zipatoni. As a directresult of the “negligence” of Zipatoni, Meyerkord alleged thecontent of www.alliwantforxmasisapsp.com was “publicly attributed”to Meyerkord, and his “privacy has been invaded, his reputation andstanding in the community has been injured, and he has sufferedshame, embarrassment, humiliation, harassment, and mental anguish.”Meyerkord also alleged these injuries will continue because theblogs and websites criticizing him will remain “on the [i]nternetand 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 noMissouri court had recognized the “false light” tort as an actionseparate from defamation, and Meyerkord failed to plead a claim fordefamation. The trial court granted Zipatoni’s motion to dismiss.This appeal follows. vacy” [citation omitted]. In Barber v. Time,Inc., 348 Mo. 1199, 159 S.W.2d 291 (1942), the Supreme Courtacknowledged the general “right of privacy” not to have certainprivate affairs made public. An “invasion of privacy” is a generalterm used to describe four different torts.[ . . . ] We haveacknowledged this Restatement classification, but we have yet torecognize a cause of action for false light invasion ofprivacy.
Meyerkord argues the false light invasion of privacy tort shouldbe recognized in this case because this case meets the elements ofthe tort and represents the “classic case” discussed in Sullivan v.Pulitzer Broadcasting Co., 709 S.W.2d 475 (Mo. banc 1986), the keycase dealing with the question of whether Missouri courts shouldadopt a cause of action for false light invasion of privacy. InSullivan, the court looked at the issue of whether a plaintiffcould sue for false light invasion of privacy and avoid the twoyear statute of limitations for defamation actions. In decidingthat question, the court noted it had not yet recognized a cause ofaction apart from defamation for false light invasion of privacy.However, it went on to say that: [i]t may be possible that in thefuture Missouri courts will be presented with an appropriate casejustifying our recognition of the tort of “false light invasion ofprivacy.”
The court also noted the difference between false light anddefamation was that the latter protects one’s interest in his orher reputation, while the former protects one’s interest in theright to be let alone. An action for false light invasion ofprivacy does not require one to also be defamed; it is enough thathe or she is given unreasonable and highly objectionable publicitythat attributes to him or her characteristics, conduct, or beliefsthat are false, and so is placed before the public in a falseposition. Restatement (Second) of Torts Section 652E, cmt. B(1977). When this is the case and the matter attributed to theplaintiff is not defamatory, the rule here affords a differentremedy not available in an action for defamation.
Section 652(E) of the Restatement (Second) of Torts spells outthe elements of the tort of false light invasion of privacy asfollows:
One who gives publicity to a matter concerning another thatplaces the other before the public in a false light is subject toliability to the other for invasion of his privacy, if (a) thefalse light in which the other was placed would be highly offensiveto a reasonable person, and (b) the actor had knowledge of or actedin reckless disregard as to the falsity of the publicized matterand the false light in which the other would be placed.
This section applies only when the publicity given to theplaintiff has placed him in a false light before the public, of akind that would be highly offensive to a reasonable person. Inother words, it applies only when the defendant knows theplaintiff, as a reasonable person, would be justified in the eyesof the community in feeling seriously offended and aggrieved by thepublicity. On the other hand, the plaintiff’s privacy is notinvaded when unimportant false statements are made, even when theyare made deliberately. It is only when there is such a majormisrepresenta- tion of one’s character, history, activities, orbeliefs that serious offense may reasonably be expected to be takenby a reasonable person in his or her position, that there is acause of action for invasion of privacy.
In deciding whether to adopt the tort of false light invasion ofprivacy, we note the majority of jurisdictions addressing falselight claims have chosen to recognize false light as a separateactionable tort. Further, of these jurisdictions most have adoptedeither the analysis of the tort given by Dean Prosser or thedefinition provided by the Restatement (Second) of Torts. On theother hand, a minority of jurisdictions have refused to recognizethe tort of false light invasion of privacy. The rationalescommonly supporting a court’s refusal to recognize false lightinvasion of privacy are that: (1) the protection provided by falselight either duplicates or overlaps the interests already protectedby the defamation torts of slander and libel; (2) to the extent itwould allow recovery beyond that permitted for libel or slander,false light would tend to exacerbate the tension between the FirstAmendment and these cases; and (3) it would require courts toconsider two claims for the same relief, which, if not identical,at least would not differ significantly.
As to the first rationale, we find false light invasion ofprivacy is sufficiently distinguishable from defamation torts. Indefamation law, the interest sought to be protected is theobjective one of reputation, either economic, political, orpersonal, in the outside world. On the other hand, in privacycases, the interest affected is the subjective one of injury to theperson’s right to be let alone. Further, where the issue is truthor falsity, the marketplace of ideas provides a forum where theanswer can be found, while in privacy cases, resort to themarketplace merely accentuates the injury. Thus, we find theinterests at stake are sufficiently distinct for a separate remedyfor false light invasion of privacy to exist.
The second rationale for refusing to recognize false lightinvasion of privacy can be easily mitigated through the adoption ofa heightened standard like actual malice or recklessness. Somecourts have adopted an actual malice standard for claims involvingpublic officials or figures or claims asserted by privateindividuals about matters of public concern and a negligencestandard for claims by private individuals about matters of privateconcern. However, we find that adhering to the actual malicestandard in the Restatement for all types of cases strikes the bestbalance between allowing false light claims and protecting FirstAmendment rights. . . . Moreover, the Restatement’s requirementthat the statement must be “highly offensive to a reasonableperson” reduces the possibility that the recognition of the falselight tort will result in unnecessary litigation. As noted earlier,the Missouri Supreme Court has considered the issue of whetherMissouri courts should adopt the tort of false light invasion ofprivacy, but the Supreme Court concluded it had not yet beenconfronted with a factually suitable case.
We now find that the facts of the present case properly presentthe issue of false light invasion of privacy and we hold that aperson who places another before the public in a false light may beliable in Missouri for the resulting damages. In recognizing thiscause of action, we note that as a result of the accessibility ofthe internet, the barriers to generating publicity are quickly andinexpensively surmounted. Moreover, the ethical standards regardingthe acceptability of certain discourse have been diminished. Thus,as the ability to do harm grows, we believe so must the law’sability to protect the innocent.
We now turn to Zipatoni’s third argument for not recognizing acause of action for false light invasion of privacy in this case.In his petition, Meyerkord alleged Zipatoni was “negligent andcareless” in failing to remove him as the registrant for itsaccount with Register.com and in registering www.alliwantforxmasisapsp.com with Meyerkord listed as the registrant. Because we haveadopted the tort of false light invasion of privacy and have foundthat the proper standard for liability is actual malice, we findMeyerkord has failed to plead the essential elements for a claim offalse light invasion of privacy. Therefore, the trial court did noterr in granting Zipatoni’s motion to dismiss because Meyerkord’spetition failed to state a claim upon which relief may begranted.
However, because of the developing status of this area of thelaw, and because no previous cases have discussed pleadingrequirements in Missouri, we will remand this case and giveMeyerkord an opportunity to amend his petition to plead the correctstandard for his claim of false light invasion of privacy asadopted above.
Case Questions
- Why is accessibility of the Internet a consideration in a claimfor false light? (6 points)
- What were the reasons give by Zipatoni against recognizing acause of action for false light invasion of privacy? (7points)
- Why did the court reject these reasons and recognize the falselight invasion of privacy tort? (7 points)
Expert Answer
Answer to Meyerkord v. Zipatoni Co., 276 S.W.3d 319 (Mo. Ct. App. 2008) Plaintiff, Greg Meyerkord (“Meyerkord”), appeals from …
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