Monday, April 13, 2015

Ectodermal Displasia, the Basketball Player and Invasion of Privacy

This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Eastern of Michigan.  Binion v. O’Neal, 2015 WL 1505673 (2015).  He begins the opinion by explaining that
Jahmel Binion (Plaintiff) is suing Shaquille O'Neal (O'Neal), Alfonso Clark `Trey’ Burke (Burke), and Juaquin Malphurs (Malphurs) (collectively, Defendants) claiming that Defendants posted mocking and ridiculing photographs of him on social media websites. 
Binion v. O’Neal, supra.  He also noted that the Complaint Binion filed to initiate the suit alleged four different causes of action: invasion of privacy, intentional infliction of emotional distress, defamation and general negligence. Binion v. O’Neal, supra. 
According to one news story, this is how the suit arose:
A disabled man is suing former NBA great Shaquille O'Neal and two other celebrities for ridiculing his appearance in an online post. 

Jahmel Binion, 23, claims he suffered emotional distress after O’Neal posted a picture on Instagram of his own contorted faced next to Binion's with the caption 'Smile Today'.  The April post gained more than 14,000 likes, with basketball player Trey Burke and rapper Waka Flocka Flame joining in on the teasing.

Following a public backlash, the post was deleted and Shaq and Burke apologized to Binion. 

However, the Michigan man has filed a lawsuit in Macomb County alleging that O’Neal, Burke and Waka Flocka Flame intentionally inflicted emotional distress, invaded his privacy and defamed him, Macomb Daily reported. In the lawsuit, Binion claims the mocking photos 'constituted a public disclosure of embarrassing private facts about the plaintiff' and 'placed plaintiff in a false light in the public eye.'

Binion was diagnosed with hypohidrotic ectodermal dysplasia as a baby, a disorder which causes sparse hair growth, missing teeth and facial deformities.  He said he struggles to hold down a job and can't work in hot conditions.
You can, if you are interested, see some of the photos mentioned in the article above here.  And you can find another story about the case here.
The suit was filed in a U.S. District Court, which means that the litigation process was governed by the Federal Rules of Civil Procedure.  As Wikipedia explains, under the Federal Rules, which apply when a plaintiff files a complaint and thereby initiates a lawsuit against the defendant or defendants, the latter can strike back by filing a motion to dismiss the plaintiff’s suit under Rule 12(b).
Rule 12(b) gives a defendant several choices as to the basis for filing a motion to dismiss, but O’Neal chose only one:  lack of personal jurisdiction".  Binion v. O’Neal, supra.  As Wikipedia also explains, “personal jurisdiction” refers to a court’s
jurisdiction over the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law and facts involved in the suit.

If a court does not have personal jurisdiction over a party, its rulings . . . cannot be enforced upon that party. . . . A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. . . .
(emphasis in the original). The District Court Judge therefore wrote the opinion this post examines to explain why he was ruling the way he was on O’Neal’s motion to dismiss under Rule 12(b)(2).  Binion v. O’Neal, supra. In his motion, O’Neal argued that “not subject to personal jurisdiction in Michigan by merely posting images of [Binion] on his Instagram and Twitter accounts.” Binion v. O’Neal, supra.
The judge began his opinion with a review of the “background” of the case, the initial installments of which dealt with social media:
Instagram is a social media website that describes itself as a `fun and quirky way to share your life with friends through a series of pictures.’ (FAQ, INSTAGRAM. COM,, (last visited Mar. 5, 2015)) Every Instagram user is advised that `[a]ll photos are public by default which means they are visible to anyone using Instagram or on the website.’ FAQ, INSTAGRAM. COM, supra. However, Instagram allows users to `make [their] account private’ such that `only people who follow [the user] on Instagram will be able to see [their] photos.’ FAQ, INSTAGRAM. COM, supra. If the Instagram user fails to make his/her account private, `anyone can subscribe to follow [their] photos.’ FAQ, INSTAGRAM. COM, supra.

Instagram's privacy policy states that `[b]y using our Service you understand and agree that we are providing a platform for you to post content, including photos, comments and other materials (“User Content”), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service.’ (Privacy Policy, INSTAGRAM. COM., https:// (last visited Mar. 5, 2015)) The privacy policy further states, `[a]ny information or content that you voluntarily disclose for posting to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings that you set. . . . Once you have shared User Content or made it public, that User Content may be re-shared by others.’ Privacy Policy, INSTAGRAM. COM., supra.
Binion v. O’Neal, supra.
The judge went on to further explain that,
[l]ike Instagram, Twitter is a social media website that allows users to post `Tweets,’ which are described as `an expression of a moment or idea. It can contain text, photos, and videos. Millions of Tweets are shared in real time, every day.’(The Story of a Tweet: What Is a Tweet, TWITTER.COM, (last visited March 12, 2015)). As with Instagram, Twitter allows users to `share photos, in real time, with everyone or with the people [they] choose.’ (So Much More than Words,TWITTER.COM, (last visited March 12, 2015)). Twitter users can also `follow’ other users, so that others' Tweets will appear in the user's Twitter feed. Finally, Twitter allows users to re-post or `Retweet’ content from other users' Twitter feeds to be shared with their own followers. (The Story of a Tweet: What Is a Tweet, supra. . . .
Binion v. O’Neal, supra.
Before the judge began his analysis of O’Neal’s motion to dismiss, he outlined the essential facts in the case:
Because the Court is responding to O'Neal's Motion to Dismiss, the facts alleged in the Complaint . . . are accepted as true and are summarized below.

[Binion] is an individual who resides in Macomb County, Michigan. [He] suffers from a rare genetic condition called ectodermal dysplasia, which causes cosmetic abnormalities in the hair, nails, sweat glands, and teeth. O'Neal is a former professional basketball player residing in Florida and Massachusetts.

In April of 2014, when [Binion] was approximately 23 years old, [he] posted a number of photographs of himself on his public Instagram account. O'Neal obtained a photograph of [Binion] and posted it on his Instagram and Twitter accounts, side-by-side with a photograph of O'Neal mockingly contorting his face to look like [Binion’s]. O'Neal has an estimated half-million Instagram followers and 8.46 million Twitter followers.
Binion v. O’Neal, supra.
The judge then took up the personal jurisdiction issue, noting that a federal court’s
`exercise of personal jurisdiction in a diversity of citizenship case must be both (1) authorized by the law of the state in which it sits, and (2) in accordance with the Due Process Clause of the 14th Amendment.’ Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883 (U.S. Court of Appeals for the 6th Circuit 2002) . . . In this case, [Binion] is not invoking general jurisdiction under Michigan's general jurisdiction statute, [Michigan Compiled Laws] § 600.711, but limited jurisdiction under Michigan's `Long Arm’ statute[Michigan Compiled Laws] § 600.705 .

Michigan's limited jurisdiction provisions permit the exercise of jurisdiction to the extent limited by due process requirements; thus, `[w]here the state long-arm statute extends to the limits of the due process clause, the two inquiries are merged and the court need only determine whether exercising personal jurisdiction violates constitutional due process.’ Bridgeport Music, Inc. v. Still N the Water Pub., 327 F.3d 472 (U.S. Court of Appeals for the 6th Circuit 2003).
Binion v. O’Neal, supra.
He went on to explain that the court’s jurisdiction “comports with” due process
`when defendant has sufficient minimum contacts such that traditional notions of fair play and substantial justice are not offended.’ Intera Corp. v. Henderson, 428 F.3d 605 (U.S. Court of Appeals for the 6th Circuit 2005). The Sixth Circuit uses a three-part test in determining whether, consistent with due process, a court may exercise limited personal jurisdiction: (1) the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence to occur there; (2) the cause of action must arise from the defendant's activities in the forum state; and (3) the defendant's acts or the consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over him reasonable. So. Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (U.S. Court of Appeals for the 6th Circuit 1968). There is an inference that the exercise of jurisdiction is reasonable where the first two elements have been satisfied. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (U.S. Court of Appeals for the 6th Circuit 1996).
Binion v. O’Neal, supra.
The judge also noted that in order to establish “purposeful availment,” the defendant
must perform some act whereby the defendant purposefully avails himself of the privilege of doing business in the forum state. Burger King v. Rudzewicz, 471 U.S. 462 (1985). There must be a substantial connection between the defendant's conduct and the state such that the defendant `should reasonably anticipate being hauled into court there.’ Burger King v. Rudzewicz, supra.  As the Supreme Court recently stated, `[t]he principal inquiry in cases of this sort is whether the defendant's activities manifest an intention to submit to the power of a sovereign. J. McIntyreMach., Ltd. v. Nicastro, 131 S.Ct. 2780 (2011).
Binion v. O’Neal, supra.
The District Court Judge then went on to explain that in a tort case involving
defamatory content posted on an internet website, courts in the 6th Circuit have used two different tests to determine if purposeful availment has been established. First, the `Zippo test’ considers how interactive the website is with the people in the forum state. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (U.S. District Court for the Western District of Pennsylvania 1997). Second, the `Calder test’ considers whether the `effects’ of the defendant's intentional tortious conduct, which the defendant could expect to be felt in the forum state, was sufficient for the forum's courts to exercise jurisdiction over him. Lifestyle Lift Holding Co. v. Prendiville, 768 F.Supp.2d 929 (U.S. District Court for the Eastern District of Michigan 2011).
Binion v. O’Neal, supra.
The judge then explained that under the Zippo test, a defendant “`purposefully avails itself of the privilege of acting in a state through its website if the website is interactive to a degree that reveals specifically intended interaction with residents of the state.’” Binion v. O’Neal, supra.  He also noted that courts which, like the Eastern District of Michigan, are part of the U.S. Court of Appeals for the 6th Circuit, have held that social media sites
`do not lend themselves’ to the Zippo test because the defendants do not own or operate the websites, but is merely a visitor or an account holder; in addition, the websites are generally not used primarily to conduct business. See, e.g., Hyperbaric Options v. Oxy-Health, LLC, 2013 WL 5449959 (U.S. District Court for the Eastern District of Michigan 2013). Other courts have applied the Zippo test to social media websites and held that personal jurisdiction is not established by merely posting content on websites such as Facebook: although `slightly more interactive’ because of the ability to `like,’ share, or comment on postings, the site `lack[s] a commercial nature, and additional interactivity [is] absent.’ Thomas v. Barrett, 2012 WL 2952188 (U.S. District Court for the Western District of Michigan 2012).

A similar result is necessary here. Although highly offensive, O'Neal's posts on Instagram and Twitter were little more than the posting of information on social media websites, which became accessible to users in Michigan and elsewhere. The websites are not owned or operated by O'Neal, were minimally interactive, and the postings were not intended to conduct business.
Binion v. O’Neal, supra.
He also explained that under the Calder “effects” test, a plaintiff must establish that
`(1) the defendant intentionally committed a tortious action which was expressly aimed for dissemination in the forum state, and (2) the brunt of the effects of the actions are felt within the forum state.’ Hyperbaric Options v. Oxyhealth, supra. . . . However, `injury to a forum resident is not enough, and the Calder test has not been read to authorize personal jurisdiction in a plaintiff's home forum in the absence of “something more” to demonstrate that the defendant directed this activity toward the forum state.’ Hyperbaric Options v. Oxyhealth, supra. . . .
Binion v. O’Neal, supra.  The judge then found that in this case, Binion could not
establish that O'Neal's posts were `expressly aimed for dissemination’ in Michigan. Nor is there any allegation that O'Neal took affirmative steps to direct the posts to a Michigan audience. Instead, O'Neal's posts were meant for a national or even international audience. Here, the only connection to Michigan is Plaintiff's injury. This, without `something more’ is insufficient to establish personal jurisdiction over O'Neal under the `effects’ test.
Binion v. O’Neal, supra. 
Binion argued, in attempting to establish that the court did have personal jurisdiction over O’Neal, that O’Neal
has several business contacts in Michigan that render him subject to personal jurisdiction in the state. [Binion] says O'Neal has organized comedy performances at local theaters, owns restaurant franchises and other business interests in Michigan, and endorses or has endorsed many products that are distributed in Michigan. [Binion] also says O'Neal's posts were part of his multimedia campaign to promote his own brand image. [Binion] suggests that such questions should survive O'Neal's motion to dismiss and proceed to jurisdiction-related discovery.
Binion v. O’Neal, supra. 
The judge did not agree, holding that the arguments were
unavailing. Although O'Neal may have several business connections to Michigan, [Binion] cannot show that his cause of action arises from O'Neal's activities here. [Binion] was not injured by O'Neal's business dealings in the state, and [his] cause of action is independent of any such business connection. Therefore, [Binion] has not established a sufficient factual basis to support the exercise of personal jurisdiction over O'Neal.

Binion v. O’Neal, supra.  The judge therefore dismissed Binion’s lawsuit.  Binion v. O’Neal, supra. Binion can re-file the suit in a court in a state in which O’Neal (and the other defendants) are subject to personal jurisdiction.  Binion v. O’Neal, supra. 

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