Revenge Porn: "Extreme and Outrageous" as a Matter of Law?

Here's an interesting federal decision by Judge Roman (S.D.N.Y.) out of White Plains, handed down last week.  The subject matter is the sordid civil fall-out from an incident of sexual abuse in 2013.

Both parties are proceeding anonymously under the pseudonyms Jane Doe (Plaintiff) and John Doe (Defendant).  Out of respect for the parties' privacy, and the Court's determination that they are entitled to proceed pseudonymously, we'll use the same names here.

As alleged in the Complaint, while Plaintiff and Defendant were dating, Defendant set up a video camera on his laptop to surreptitiously record the couple having sex.  He uploaded the video to PornHub, and sent links to several of his buddies.  Plaintiff discovered what her boyfriend had done.  She moved out.  She lawyered up.

NYPD got involved.  Defendant was charged with, and later pled guilty to, the New York crimes of unlawful surveillance and dissemination of an unlawful surveillance.

A few years later, at the allocution on his criminal plea, Defendant admitted:  "For my own and another person's amusement and entertainment, I intentionally used and installed . . . an imaging device to surreptitiously . . . record a person undressing and sexual and other intimate parts of such person at a place and time when such person had a reasonable expectation of privacy without that person's knowledge and consent."

Plaintiff then filed a civil suit against Defendant in federal court, alleging causes of action for Intentional Infliction of Emotional Distress (IIED) and Negligent Infliction of Emotional Distress (NIED).  

IIED is the interesting one here.  Under New York law, it requires a plaintiff to prove four elements:  (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress."  The standard for "outrageous" is high, for as the Court of Appeals has observed:

Unlike other intentional torts, intentional infliction of emotional distress does not proscribe specific conduct (compare, e.g., Restatement [Second] of Torts § 18 [battery]; id., § 35 [false imprisonment]), but imposes liability based on after-the-fact judgments about the actor's behavior.  Accordingly, the broadly defined standard of liability is both a virtue and a vice. The tort is as limitless as the human capacity for cruelty. The price for this flexibility in redressing utterly reprehensible behavior, however, is a tort that, by its terms, may overlap other areas of the law, with potential liability for conduct that is otherwise lawful. Moreover, unlike other torts, the actor may not have notice of the precise conduct proscribed (see, Givelber, Social Decency, 82 Colum L Rev, at 51-52).

Consequently, the "requirements of the rule are rigorous, and difficult to satisfy" (Prosser and Keeton, Torts § 12, at 60-61 [5th ed]; see also, Murphy, 58 NY2d, at 303 [describing the standard as "strict"]). Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous (see, Freihofer v Hearst Corp.,65 NY2d, at 143-144; Burlew v American Mut. Ins. Co., 63 NY2d 412, 417-418; Murphy, 58 NY2d, at 303; Fischer v Maloney, 43 NY2d, at 557).  "'Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community' " ( Murphy, 58 NY2d, at 303, quoting Restatement [Second] of Torts § 46, comment d).

Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353-54, 612 N.E.2d 699, 702-03 (1993).

Prior to discovery, Plaintiff moved for summary judgment on the issue of liability.  The motion effectively asked the court to find, as a matter of law, that unauthorized and covert recording and dissemination of Plaintiff having sex with Defendant was "extreme and outrageous" so as to meet the requirements of the tort of IIED.

The Court agreed.

A good decision for victims of this atrocious 21st century version of sexual abuse.  Useful in civil actions following-on surreptitious videorecording and online dissemination of "sex vids."  

It might give pause to defendants (and their counsel) in criminal actions involving these types of allegations.  Should your client plead guilty, even to reduced charges, when it means the victim has a slam-dunk civil case for the tort of outrage?

Finally, an observation about this tort, which the Court of Appeals has observed requires proof of conduct that is "utterly intolerable in a civilized community."  Tort reformers might argue that these types of vaguely-defined causes of action lead to uncertainty and economic inefficiency.  The other side of the coin is that some conduct is so OUTRAGEOUS! that it ought to give rise to tort liability -- even if it doesn't carry discrete physical injury or fall within the four corners of another cause of action, such as invasion of privacy or assault.  

But is judicial determination -- at the summary judgment stage -- appropriate for a tort that by its definition depends on judgments as to what is "utterly intolerable in a civilized community."  Aren't communitarian standards the very reason we have the jury system?  Or do we all agree that revenge porn, at least under the circumstances admitted by John Doe here, so tortiously outrageous as to carry tort liability as a matter of law?