The California Supreme Court has permitted one claim in an invasion of privacy suit to proceed against a college professor who allegedly misrepresented herself to the plaintiff’s former foster mother in order to acquire information about the plaintiff. The Court denied the defendants’ motion to strike the suit entirely in February 2007, and remanded it to the lower court for further proceedings to determine whether the defendant’s alleged actions constitute highly offensive conduct that would give rise to tort liability for intrusion.
The case arises from an article written by Drs. David Corwin and Ema Olafson in May 1997 about the supposed spontaneous return of previously unrecallable memories by the plaintiff Nicole Taus. Corwin’s and Olafson’s article was published in Child Maltreatment magazine, a scientific journal published by the American Professional Society on the Abuse of Children. Corwin and Olafson claimed Taus was unable to remember alleging that her mother abused her as a child in 1984 while being treated by Corwin, until those memories returned to her in 1995 during additional discussions with Corwin. The magazine also contained five shorter articles reviewing Corwin and Olafson’s article, all of which praised their work. None of the articles identified Taus by name, and all other names and places were changed except for Dr. Corwin’s.
Despite the praise for Corwin and Olafson’s work by the other writers in Child Maltreatment magazine, Dr. Elizabeth Loftus and Dr. Melvin Guyer conducted their own research to determine the validity of the article. Loftus’ and Guyer’s article was published in two parts in the summer of 2002 in Skeptical Inquirer magazine and disputed many of Corwin’s claims about Taus’ allegations and supposedly “recovered” memories. While researching their article, Loftus and Guyer interviewed Taus’ biological mother, foster mother, and stepmother. Their article did not disclose Taus’ identity, but did include information about her history not included in the Child Maltreatment articles.
On Feb. 13, 2003, Taus filed her initial complaint in the Superior Court of Salerno County, Calif. against Loftus, Guyer, another individual who wrote an article for Skeptical Inquirer about Loftus and Guyer named Carol Tavris, the Skeptical Inquirer, Loftus’ employer the University of Washington, and an investigation company Loftus and Guyer hired. Taus amended her complaint approximately one month later to add the publisher of Skeptical Inquirer magazine and an affiliate of that publisher. The amended complaint included causes of action for negligent infliction of emotional distress, invasion of privacy, fraud, and defamation.
The defendants asked the district court to strike the complaint pursuant to California’s anti-SLAPP statute, a law designed to protect expressive activities in connection with a public issue from frivolous lawsuits. The district court denied the motion to strike the causes of action for negligent infliction of emotional distress for all defendants; granted the motion to strike the fraud claim against Loftus but denied it for the University of Washington; and granted the motion to strike the defamation action against Tavris but not for Loftus. All defendants whose motions to strike were denied by the district court appealed to the state court of appeals, except for the University of Washington.
The state Court of Appeals entered its order on April 1, 2005 affirming in part and reversing in part in Taus v. Loftus, 2005 Cal. App. LEXIS 3048 (Cal. Ct. App. 2005). This court struck additional causes of action, leaving only claims for invasion of privacy for public disclosure of private facts, invasion of privacy for intrusion, and defamation for review by the state Supreme Court. The remaining defendants appealed asking that all the remaining counts be struck.
The state Supreme Court considered the defendants’ appeal and then ruled on the claims left intact by the appellate court in Taus v. Loftus, 151 P.3d 1185 (Cal. 2007). The public disclosure of private facts claim was based on two separate incidents: statements by Loftus at a 2002 professional seminar that Taus’ has engaged in allegedly destructive behavior that affected her ability to serve in the Navy, and Loftus’ disclosure of Taus’ initials in a deposition unrelated to the present lawsuit. The defamation claim arises from Loftus’ same statements from the 2002 seminar. The intrusion into private matters claim arises from two separate incidents as well: the defendants’ collection of information from court records, and Loftus’ alleged misrepresentations to Taus’ foster mother that Loftus was a colleague or supervisor of Dr. Corwin as a way of acquiring personal information about Taus.
Chief Justice Ronald George’s opinion for the Court initially explained the two part process when a defendant moves to strike pursuant to California anti-SLAPP law, Cal. Civ. Pr. Code section 425.16 (2006). A defendant must make a threshold showing that the challenged cause of action arises from protected expressive activity, and then the burden shifts back to the plaintiff to demonstrate a possibility of prevailing on the claim. The Court found the defendants’ activities to be protected activity related to a substantial controversy in the mental health field, making it a newsworthy and public issue. Therefore, the burden then shifted to the plaintiff to establish a probability of success on the claims.
The Court first considered Loftus’ statements at the 2002 seminar and held those statements did not constitute either a public disclosure of private facts or defamation. The Court expressed doubts that these disclosures were sensitive or intimate private facts offensive to a reasonable person, but found that irrelevant because the facts were nonetheless newsworthy, precluding a public disclosure action. It also ruled those statements could not give rise to a defamation action, as they were protected by Cal. Civ. Code section 47(c)(1) (2006), which grants a common-interest privilege to statements such as these, as they were made by a psychology professor at a conference of other mental health professionals that related to the conference.
The Court summarily dismissed the disclosure of private facts action related to disclosure of Taus’ initials at a deposition unrelated to this lawsuit because that deposition took place after Taus filed her complaint in this lawsuit, revealing her full name.
The Court also found that the private investigation company Loftus hired demonstrated that all the records were open to the public without any being confidential, and therefore could not be subject to an intrusion claim.
But the Court permitted one claim to go forward: an additional intrusion claim related to Loftus obtaining personal information from Taus’ former foster mother Maggie Cantrell. In a declaration filed as part of the record for this lawsuit, Cantrell claimed that Loftus told her that Loftus was working with Dr. Corwin as his supervisor, whom Cantrell knew had a prior relationship with Taus. Cantrell says she relied on this representation in disclosing extensive information about Taus. Loftus denies ever making any such representations.
The Court acknowledged that a person generally cannot maintain an action for intrusion against an individual who speaks to a relative or friend of the plaintiff that reveals personal information about that plaintiff, but permitted the lawsuit to proceed in this case because a person’s preservation of privacy could be substantially undermined if investigators could use any means to extract that information from the plaintiff’s friends and family. The Court believed a jury could find the plaintiff reasonably expected an investigator would not obtain access to personal information from a friend or relative by posing as a supervisor of a professional with whom the plaintiff had confided. The Court further noted the information obtained about Taus from Cantrell was deeply personal, relating to Taus’ drug use and sexual relationships.
The Court addressed an amicus brief filed by several media organizations concerned about implications the case may have on journalists and their relationship with sources. The brief urged the Court to strike this cause of action because a source unhappy with a reporter’s final article that involved the source may claim the reporter was not forthright with that source. The brief further explained that permitting causes of action for intrusion based on alleged misrepresentations by a journalist would have a chilling effect on the gathering and publication of news.
The Court conceded the the concerns of the amicus parties were reasonable, but found that some misrepresentations, such as those alleged in this case where a person feigns a relationship with an individual’s therapist, are so egregious and offensive that causes of action based on those misrepresentations should be allowed to proceed to a jury. It used an example of an investigator posing as an emergency room physician and contacting an individual’s family member to determine if that person has a certain medical condition as something a reasonable person could find highly offensive. The Court reasoned that cases involving such offensive misrepresentations will not have an impact on journalists because they are well beyond normal newsgathering techniques of shading or withholding information about one’s motives while speaking with a source.
Justice Carlos Moreno, joined by Justice Marvin Baxter, dissented in part, stating his belief that the Court should strike the intrusion action. In Moreno’s view, Taus had no reasonable expectation that Cantrell’s observations would remain private.
Attorneys for both the plaintiff and defendants reacted to the Court’s opinion. A February 2007 Associated Press article quoted both of them, with Taus’ attorney saying he will fight for the “vindication of [Taus’] right of privacy,” while Loftus’ attorney, Thomas Burke, said his client never misrepresented herself. Burke also stated his belief that the case will not have a broad impact on journalists, as he believes “the vast majority of working journalists don’t do the sort of things that Dr. Loftus is accused of.”
– Scott Schraut, Silha Research Assistant