Facemash as Tort (continued)

In my previous post, we considered Facemash from Harvard’s perspective, so we asked whether Mark Zuckerberg–the Harvard hacker and creator of Facemash–committed the tort of conversion or the tort of trespass to chattels when he hacked into the University’s computer network. In this post, let’s consider Facemash from the perspective of the “Facemash Girls”–the co-eds whose pictures were posted to the Facemash website without their consent. In particular, couldn’t some or all of the Facemash Girls have sued Zuckerberg for invading their privacy or for intentional infliction of emotional distress? (This is not a crazy question; a lot of the students at Harvard have powerful parents.)

Let’s consider the common law right to privacy first. In brief, there are four ways of proving that an unlawful “invasion of privacy” occurred: intrusion of solitude, public disclosure of private facts, false light, and appropriation of name or image. But however we slice and dice it, there are two big problems with all these privacy theories of liability in the case of Facemash: (1) what are the damages, and (2) is there a reasonable expectation of privacy in semi-public I.D. photos? To begin with, a tort plaintiff is required to allege and prove an injury or damages to win her case, but what damages did the Facemash Girls suffer when their pictures were posted to Facemash? Now, for the sake of argument, let’s suppose the Facemash Girls can prove damages. (After all, those pictures were posted to Facemash without the Facemash Girls’ consent. In other words, the injury here is that Zuckerberg did not ask for anyone’s permission first.) The plaintiff will also have to show that she had a reasonable expectation of privacy in her college I.D. photo. The problem, however, is that those I.D. photos are meant to be seen! How can one say that one has a reasonable expectation of privacy in something that is meant to be seen by your classmates?

What about the tort of intentional infliction of emotional distress or IIED? To recover under this theory of tort liability, a plaintiff will have to prove two things: (1) that the defendant acted in an “extreme and outrageous” way, and (2) that she, the victim, suffered “severe emotional distress” because of the defendant’s extreme and outrageous behavior. So, was Facemash really all that “extreme and outrageous”? It’s hard to say, especially given the fact that people judge each other based on their physical appearance all the time. Plus, even if Facemash was extreme and outrageous, how could it cause any severe emotional distress? Remember, the website was up only for a short period of time before the University shut it down.

This concludes our legal analysis of Facemash (and hacking generally) from a common law perspective. In our next two blog posts, we will consider two federal laws that might apply to Facemash.

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