Monday, January 25, 2016

"Revenge Porn," Defamation and Intentional Infliction of Emotional Distress

This post examines an opinion recently issued by the Fourteenth Court of Appeals of Texas – Houston:  Patel v. Hussain, 2016 WL 270014 (2016).  The Court of Appeals Justice who wrote the court’s opinion begins by explaining that
This appeal follows a plaintiff's jury verdict in a `revenge porn’ case.  Specifically, appellee Nadia Hussain sued appellant Akhil Patel, alleging that after the couple broke up, Patel hounded her with a slew of offensive and threatening communications, hacked or attempted to hack her accounts, and posted secretly recorded sexual videos of Nadia on the Internet. The jury found in Nadia's favor on her claims for intentional infliction of emotional distress (IIED), intrusion on seclusion, public disclosure of private facts, and defamation.

The jury awarded her damages totaling $500,000, including past and future mental anguish damages, past and future reputation damages, and exemplary damages. The trial court signed a final judgment for $500,000 in damages and a permanent injunction.
Patel v. Hussain, supra.  You can, if you are interested, read more about the facts and legal issues in the case in the article you can find here.
The Court of Appeals goes on to explain that
[o]n appeal, Patel does not challenge the evidence supporting the liability allegations. Instead, in six issues, Patel contends the trial court erred by (1) denying his motion for JNOV on the defamation claim because the jury found the publication was substantially true; (2) denying his motion for JNOV because the trial court's judgment violated the one-satisfaction rule; (3) awarding damages attributable to Nadia's claim for IIED because this `gap filler’ tort was unavailable in the context of this case; (4) awarding mental anguish damages in the judgment because Nadia's stipulation concerning her social media posts established that Nadia did not have a substantial disruption to her daily routine; (5) awarding mental anguish damages because the evidence is legally and factually insufficient; and (6) awarding exemplary damages when the evidence is legally and factually insufficient to support mental anguish damages.

We sustain Patel's first and third issues and overrule the others. Thus, we modify the trial court's judgment to remove the damages associated with the defamation and IIED claims and affirm the judgment as modified, resulting in a judgment of $345,000.
Patel v. Hussain, supra. 
I am going to proceed in this post in a fashion that differs in one respect from how I usually translate a court’s opinion into a blog post:  I usually go through the entire opinion, explaining what the court did and why.  I cannot do that with this opinion, which I think can make a good post, because the Court of Appeals quotes extensively from texts and emails exchanged between Patel and Hussein.  If I were to quote all of them, the post would be much longer than my posts usually are.
So, instead, I am going to use the opinion to outline the arguments in the case and the essential facts that provided the basis for Hussain’s lawsuit. Patel v. Hussain, supra.  If you would like to read all of the texts and emails quoted in the opinion, you can find the full opinion here.
The Court of Appeals begins the initial part of its opinion, in which it outlines the relevant facts and legal issues, by explaining that
Nadia and Patel began a relationship in high school and had an `on-and-off’ dating relationship for about seven years. Nadia is Muslim and Patel is Hindu, which caused difficulties during the relationship. They broke up in late 2010. During the relationship, Nadia emailed several pictures of herself to Patel that showed her topless and wearing only underwear. Nadia asked Patel to delete the pictures after she sent them. He didn't. Also during the relationship, Patel recorded videos of Skype (video chat) conversations during which Nadia undressed herself and masturbated. Nadia did not consent to being recorded.
Patel v. Hussain, supra.  In a footnote, the court says “[t]he parties disputed whether Nadia was aware she was being recorded.” Patel v. Hussain, supra. 
This excerpt from the next section of the court’s opinion should give you an idea of how things stood between the two of them at the time:
Patel continued to contact Nadia after they broke up despite Nadia and her mother, Sakina, telling him to stop in December 2010. At first, Nadia engaged Patel. Patel's father emailed Nadia in April 2011, asking her to `Please send him a message telling him he has to move on with his life and to leave you alone otherwise you will have to call the authorities for st[al]king you.’ Patel sent Nadia text messages in July 2011 because he wanted to talk with her. She did not respond to most of his text messages. The trial court admitted screenshots of the text messages into evidence, including the following from early July:
Patel: Retaliation ...... you think this is retaliation? ? ? ? ? ? ? ? Haha retaliation woulda been something totally diff nadia but, THINK back you fuckin genius did I? ? ?
Patel: I'm going to give you until 6pm to come up with a better response nadia.
Nadia: OR WHAT AKHIL
Patel: Hahha look how quick u respond when you FEEL like ur gonna get hurt ... do you care about huring me hahahha NOPE.!
Patel: Or what ? ? ? ? Hahah nadia think about it like I said 6pm to give a better response.
Patel: Do you hold back from anything when you talk to me or the way you act with me NO, why do you EXPECT ME TO DO THE SAME NADIA? ? ? ? HUH WHY? ? ? ?
Patel: Times up!
Patel: I hope you are happy now!
Patel: You have never given me a chance ..... and I have given you numerous, times up for you ..... like I said in the car rmr those words.
Patel: [Link to a YouTube video]
Patel: Em going to give you until 630pm to come up with a better response nadia.
Patel: It's privatized nadia.
Patel: What now u amt gonna respond or what? ? ?
Patel: You know what fuck it .......
Patel: If officially lost you right ....what do I have to lose ....
Patel: I'm tired of being ur bitch all the time ....haha all I wanted was to be fine ....this is gonna help you cause this is ur health, thank me later.
Patel: [Link to a YouTube video]
Patel: That's the legit link....I gave u a chance and u decided to treat me like a dog
Patel: And if that didn't work ....check ur email ....0 wait u prolly have all my emails blocked hahah even tho I barely email you hahahahhahahahah
Patel: Hahahhahaah you don't have to be like this anymore. Your done.
Patel: And we both know what's gonna happen now ...... right? ? ? ? ? ?
Patel: Family will be very ashamed .......
Patel: You could have prevented this, that's what's FUCKING FUNNY. You didn't fuckin get what I asked for and u acted in an inappropriate way.
Patel: Stop crying in ur room nadia you had to think at one point you treating me like this was gonna back fire hahha and yet still ur video is private you want me to send it to your mom? ? ? ? ? FUCKING ANSWER ME NADIA?
Patel: Don't worry like I said only people with the link can view it!! Hahah
Patel: [Link to a YouTube video]
Patel: [Link to a YouTube video]
Patel: That's the least of your worries
Patel: U need to learn how to respect people and stop hanging up on people.
Patel: You still have a chance nadia just FYI.
Patel: Unlike you, regardless of how you treat me....I still wanna give you a chance and not say anything to your mom
Patel: [Link to YouTube video]
Patel: Ya and those pics u sent me too gotta see if the google techs can rwcover those too so you can post those too!! So than again more guys! For you that's what you wanted right to go thru a bunch of guys!! You warm up to them easily hahah but can't talk to a guy that uve known for 7 years ... and were in a relationship and wanted to marry and start a family with ....again u said the above text that's why I'm say in this to you ....jus hurts that u ignore.
Patel: YES! According to a guy I know from UT who works at google, they can recover it ... it'll take a couple of days, but then I can give it to you so whenever u go on ur date you can give it to him
Patel: Look how much fun I can have with your family ... esp since I know all of them, and ur couz like me and think I'm good for you [link to YouTube video]
Patel: You have until Saturday.
Patel v. Hussain, supra.  
The opinion explains that the text messages continued a few weeks later:
Patel: No nadia its done ...... I'm sick and tired of how you treat me.
Patel: I knew you would do this to me which is why I went and got my laptop fixed ....my gut told me that once you know that my laptop was fucked up and that I deleted those pics ... ud disrespect me.
Patel: Best buy fixed my laptop in fact and restored everything. Nadia. It took you 5 days to respond to me asking if you needed space. Nadia I'm not a dumbass, your mom told me you were busy so you might not have texted for that reason. Nadia you prolly text and call people on the norm, but no not akhil for what? ? ? ? You don't know nadia. I'm tired of you disrespecting me.
Patel: Stuff I say, yes nadia everyone says stuff out of frustration even you. I just miss you and miss talking about random stuff and having fun! Ill give you space
Nadia: I don't go to the extent of retrieving life threatening information just to threaten.
Patel: I didn't.
Patel: I didn't even threaten you that's the funny thing.
Patel continued a few days later:
Patel: I'm fucking done. Treat me like shit. Continue it.
Patel: U don't tell ur mom shit on how u treat me, but ur mom thinks I'm some horrible person.
Patel: Go watch ur video and know that I have it all 30 min of it
Patel: And now I'm gonna mess with you just like you messed with me, and rmr this, your friends say a lot
Patel: And now I have found the website, xvideos.com. I will send the link later tonight.
Patel: [Link to YouTube video]
Patel: Already on youtube ... and it has 2 views!
Patel: Congrats uve fucked ur own life up and best believe imma email ph tomorrow with the email along with those other videos of you.
Patel: Hahahahhahahahahha you FUCKED UP NADIA BIG TIME.
Patel: You ignoring me like I just told your mom is the worst thing you can do.
Patel: Aight imma see you on Sunday that's cool!
Patel: And I know where ph is that's cool! Call the cops I haven't done anything
Patel: [email address for Nadia's grandfather]. don't worry I got you.
Patel: I haven't done anything! Hahhahah trust me keep messin with me
Patel: Hahha I'm with ronak and rajiv ....and they said u deleted them!? ? ?7
Patel: On facebook hahahhaa ur soo wack I jus showed them ur video
Patel v. Hussain, supra. 
I am going to include one more excerpt from the communications between the two:

Patel texted Nadia again over the course of several days in late October 2011:
Patel: [....] I do have your nana n nani's number, you really don't know how bad I just want to text them those pics and stuff, WHY THE FUCK CANT YOU JUST REPLY SO WE CAN END THIS!!!!!? ? ! ? ! ? ! ? ! ?
Patel: YOU HAVE HURT ME SOO MUCH NADIA. DO I want to RUIN YOUR REP!!!! yes i do very much so, prolly because im frustrated, but will i do
Patel: All I want is some kind of response, if I don't get that at least, even a single “A”, imma act like you IMMATURE and send stuff to spite/hurt you cause you love to hurt me soo much so I guess I will return the favor, im tired of being hurt by you
Patel: thanks for nana n nanis number, they will get involved now too since you cant MAN UP to your decisions, they get pic msgs nadia
Patel: Go and hide behind ur phone, you will see me one day either I will come to ph or at talhas wedding and don't make any faces to me then cause ill get on the dj's comp and play ur video.
Patel: You tell your mom about the videos? ? What about nana or uncle or co workers like Rachel? ? ? ?
Patel: Oh ya nadia I have something far more valuable of yours than those stupid pics
Patel: I sent that to chris and amanda, I'm sorry it had to come to this. Hope you don't get fired.
Patel: Ahh yes and your father, I have his contact info as well nadia, I know you don't really care for him too much but still.
Patel: [....] I'm going to make sure each one of your family members knows about those pics n vids and when I say family I mean nana nani mom uncle bhabi dad
Patel: [ ....] wisen up, or learn a lesson the hard way. I have nanas email and his cell phone. Along with nanis phone. I could jus mail the pics to the house if that's what you want!?
Patel: Just sent you and your mom that pic
Patel: I'm glad you don't worry about your nana or nani
Patel: I'm going to call your work again until you realize you cant treat people like this!
Patel texted Nadia again, during the middle of the night, over the course of several days in January 2012:
Patel: Like I told you earlier and just now. I asked for something simple. You are asking me to come to PH you know that ? ? ? ?
Patel: You fucked up and now, not me, you will pay the price because I've been nice
Patel: Tomorrow your mom is going to find out what you did.
Patel: And so is your nana nani and uncle
Patel: I would say a lot to you ... but imma wait ....and let your mom nana nani uncle and bhabi know what you have done.
Patel: You think you are sooo smart ... wait until tomorrow. Confess to ur nana then nadia. Tired of ur shit
Patel: Your mom nana etc need to realize how rude of a person you are.
Patel: Your action or lack thereof will cause/determine my reaction.
Patel v. Hussain, supra.  In a footnote, the court notes that, later, “Patel testified that `nana and nani’ were Nadia's grandparents” and that “`bhabi’ is Nadia's aunt.” Patel v. Hussain, supra. 
I am going to include one more excerpt from the communications quoted in the opinion and, as I noted above, you can find the full opinion by using the link supplied above:

In January and February 2012, Nadia started receiving text messages from unknown and unverified numbers. Nadia believed the texts were from Patel and that Patel had been discovering information about her whereabouts, purchases, and activities based on texts such as these:

Patel: Hurd u like bangin texmex guys! Lmfao
Patel: juz cuz u got caught wit the texmex
Patel: i c u! sittin near da door ill come say hi in a bit.
Patel: stp rackin up shi on the credit gurl! debt getting hi:=(
Patel: howz da new spot gurl!?
Patel: howz da new i4!?!?!?! ? gud recep with vzn? Lmfao

In February 2012, Nadia began receiving emails from her email service provider stating that she had been trying to recover her account password, although she had not been doing so. The emails came almost every other week. Nadia filed a police report on March 8, 2012, to report Patel's harassing conduct and possible breach of computer security. She reported that she received upwards of 20 to 30 text messages and phone calls per day.

Nadia lived with her grandparents and mother, Sakina, at the time. Sakina testified that Patel would prank call the house multiple times per day at all hours, including 1:00 a.m. and 2:00 a.m. He did this for several years. They would have to leave the phone off the hook at night and block his calls. Nadia testified that she changed her phone number multiple times, but Patel kept discovering it and contacting her. She put an application on her phone that would only allow certain contacts to reach her, but she believed Patel was impersonating her contacts, calling her, and hanging up.

Police officers spoke with Patel in March 2012 and told him to stop contacting Nadia. He didn't. Shortly after the police spoke with him, he emailed Sakina:

`[ ... ] This week coming up its nadias birthday. Since you and her think its funny that calling the cops on someone for your own problems when they have nothing to do with it, will somehow solve them, I will let you two go ahead and think like that. You seem to be a very smart woman, so you should be able to anticipate what my gift to nadia will be this year! You can relay the information to her as well that before she laughs at the fact that she called the cops on an innocent person she may want to remember what she has put out there. [ ... ] Similar to what both of y'all did, getting my family and friends as well as me involved into your own lifes problems, she should anticipate hers getting involved to, all thanks to y'alls decision to try and ruin my life.’
Patel v. Hussain, supra. 
In the next section of the opinion, the court explained that
[t]hen, Patel uploaded Nadia's videos to the Internet. The trial court admitted print-outs from a pornographic website showing Nadia's videos on the Internet with the title `Pakistani Nadia Houston.’ The text messages continued from March 2012 through August 2012:

Patel: Your vid is up online. Congrats to you and your family ....over 2000 ppl have viewed what you do in your bed.
Patel: You seem to be very popular amongst the guys, they can't stop watching you! 5000 views with your name on it!
Patel: Who knew your pictures an videos would draw such a big audience? Not only did 5000 men and women watch you, 300 downloaded your videos!
Patel v. Hussain, supra. 
The Court of Appeals then took up Patel’s argument that “the trial court erred by awarding damages to Nadia on her defamation claim because the jury found that the published material was substantially true.”  Patel v. Hussain, supra.  It went on to point out that
[t]he affirmative defense of substantial truth is a complete defense to defamation. Knox v. Taylor, 992 S.W.2d 40 Tex.App.--Houston 1999); see also Texas Civil Practice & Remedies Code Ann. § 73.005. A jury's finding of substantial truth precludes liability for a defamation claim. See Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Supreme Court of Texas 2000). And, in the absence of liability, the question of damages becomes immaterial. See Hancock v. City of San Antonio, 800 S.W.2d 881 (Texas Court of Appeals San Antonio 1991). The same rationale applies to a finding of actual malice and exemplary damages. See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203 (Texas Supreme Court 1996) (actual malice finding and exemplary damages rendered immaterial by jury's answers establishing an affirmative defense; `the trial court should have disregarded the actual malice finding as immaterial’).

Thus, the trial court erred by denying Patel's motion for JNOV on this basis. The trial court should have disregarded the jury's award of $50,000 in damages for the defamation claim. Patel's first issue is sustained.
Patel v. Hussain, supra. 
The Court of Appeals then took up the third issue Patel raised in his appeal:
Patel contends the trial court erred by not granting his motion for JNOV on the IIED [intentional infliction of emotional distress] claim because this `gap-filler’ tort is unavailable under the facts of this case. In particular, Patel claims that his conduct invaded Nadia's legally protected privacy interest under her claims for intrusion on seclusion and public disclosure of private facts. We agree.
Patel v. Hussain, supra. 
The court went on to explain that
IIED is a `gap-filler tort, judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.’ Hoffman–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Supreme Court of Texas 2004). IIED `simply has no application when the actor intends to invade some other legally protected interest, even if emotional distress results.’ Hoffman–La Roche Inc. v. Zeltwanger, supra (quotations omitted). `Where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available.’ Hoffman–La Roche Inc. v. Zeltwanger, supra.
Patel v. Hussain, supra. 
The Court of Appeals then outlined its analysis of Patel’s “gap-filler tort” argument:
Nadia contends that IIED applied here because Patel intended to invade a right that was not legally protected. She argues, `Patel engaged in numerous extreme and outrageous acts that are not actionable under any other theory of recovery.’ Nadia cites a single example: when Patel sent Nadia a text message threatening to play Nadia's video during a mutual friend's wedding. Specifically, Nadia contends the `wedding threat’ did not lie within the umbra of Nadia's claim for intrusion on seclusion.

Nadia contends that Patel's threat involved a “public place,” and she cites Floyd v. Park Cities People, Inc., for the proposition that “it is well-established in Texas law that if an intrusion involves a public place or public matters, the defendant is not liable.” See Floyd v. Park, supra.  We disagree with Nadia's broad interpretation of Floyd. Floyd concerned more than mere `involvement’ with a public place or concern. In Floyd, a newspaper published a picture of the plaintiff's front yard, which included the plaintiff standing on his front porch. Floyd v. Park, supra. The yard and plaintiff had been in full view of the public at the time, and the topic of the plaintiff's front yard `had become the subject of a controversy which was publicly debated before the Highland Park Town Council.’ Floyd v. Park, supra. The Dallas Court of Appeals affirmed summary judgment on the invasion of privacy claim because there was no intrusion on the plaintiff's solitude, seclusion, or private affairs as a matter of law. See Floyd v. Park, supra.
Patel v. Hussain, supra. 
The Court of Appeals went on to explain that,
[h]ere, according to the charge, the jury found that Patel `intentionally intrude[d] into Nadia Hussain's solitude, seclusion, or private affairs or concerns in a manner that would be highly offensive to a reasonable person.’ At trial, Nadia presented the `wedding threat’ as one of hundreds of offensive and threatening text messages Patel sent to her, along with the phone calls and hacking attempts, to establish an intentional intrusion on Nadia's solitude, seclusion, or private affairs. Household Credit Services, Inc. v. Driscol, supra (sufficient evidence for invasion of privacy when the defendant made frequent offensive telephone calls to the plaintiff). The wedding threat involved a “public place or public matter” only in the tangential sense that Patel was threatening another theory of invasion of privacy upon which Nadia successfully recovered at trial—public disclosure of private facts. Unlike the picture in Floyd, the secretly recorded video depicted Nadia in a private place engaged in private conduct that was not publicly debated or a matter of public concern. A privately communicated threat to reveal such private content at a wedding does not involve a public place or public matter as in Floyd.

Nadia also relies on Durban v. Guajardo, wherein the Dallas Court of Appeals held that a plaintiff could recover under a theory of IIED and assault even though the two claims `involve[d] the same acts by’ the defendant—the defendant physically attacked the plaintiff. 79 S.W.3d 198 (Tex.App.—Dallas 2002). The court of appeals reasoned that the plaintiff could maintain an action for IIED even though emotional distress was `the essence’ of an assault and battery claim. Durban v. Guajardo, supra. We decline to follow Durban; its reasoning is inconsistent with Texas Supreme Court's pronouncements in Hoffman–La Roche Inc. v. Zeltwanger, supra (citing Rice v. Janovich, 742 P.2d 1230 (Supreme Court of Washington 1987) (trial court erred to instruct the jury on IIED in addition to assault because a plaintiff can recover emotional distress damages for an assault claim)).

From reviewing the entire record, we conclude that the gravamen of Nadia's complaint was fully encompassed by her invasion of privacy claims for intrusion on seclusion and public disclosure of private facts. Nadia complained globally about Patel's frequent threatening and offensive communications, hacking into her accounts, and uploading the secretly recorded videos to the Internet. Neither on appeal nor at trial has Nadia identified evidence that would enable recovery under a theory of IIED independent of her other claims. . . .

Accordingly, IIED was unavailable as a matter of law. The trial court erred by not granting Patel's motion for JNOV on this ground and thereby incorporating the jury's award of damages for IIED in the final judgment. Hoffman–La Roche Inc. v. Zeltwanger, supra (court of appeals should render judgment for the appropriate amount of damages when the judgment awards relief on an unavailable claim such as IIED).

Patel's third issue is sustained.
Patel v. Hussain, supra. 
Otherwise, the Court of Appeals affirmed the decision by the trial judge:
We have sustained Patel's first and third issues and concluded that the trial court erred by including in the judgment damages associated with the defamation and IIED claims. Having overruled the remainder of Patel's issues, we modify the trial court's judgment to reduce the amount of damages from $500,000 to $345,000. See Hoffman–La Roche Inc. v. Zeltwanger, supra  (remanding to court of appeal for rendition of the appropriate amount of damages).

The judgment is affirmed as modified.

Patel v. Hussain, supra.  As I noted at the beginning of this post, the full opinion includes a number of excerpts from the social media traffic between Patel and Hussain, all of which help put the litigation, and this decision, in perspective.

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