CHAPTER 6: INTENTIONAL TORTS AND PRIVACY 131
• Certain Approval Programs, L.L.C. v. XCentric Ventures L.L.C., __ F.Supp.2d __ (D.Ariz. 2009): Alleged
defamatory web site’s creation or development of information made it plausible that alleged defamatory web site was
an information content provider for some content, and thus the CDA did not completely immunize alleged defamatory
web site.
C. THE SPREAD OF SPAM
Spam is junk e-mail.
(b) Penalties.—The punishment for an offense under subsection (a) is—
1. State Regulation of Spam
2. The Federal CAN-SPAM Act
The Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act preempts state
anti-spam statutes, except for those that prohibit deceptive e-mailing practices, and permits the use of
unsolicited commercial e-mail but prohibits certain spamming activities, including the use of false return
addresses and other misleading or deceptive information. Also prohibited are “dictionary attacks”—sending
messages to randomly generated e-mail addresses—and “harvesting” e-mail addresses from Web sites.
ADDITIONAL BACKGROUND—
Spam
Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act in 2003
to take effect in 2004. The act applies to “commercial electronic mail messages” that are sent to promote a product or
service. Unsolicited commercial e-mail is allowed under the act, but its use is regulated to prohibit false, deceptive, or
misleading information and to limit the spread of unwanted spam. Following is part of the text of the CAN-SPAM Act.
18 U.S.C. Section 1037
Fraud and related activity in connection with electronic mail
(a) In general.—Whoever, in or affecting interstate or foreign commerce, knowingly—
(2) uses a protected computer to relay or retransmit multiple commercial electronic mail messages, with the intent to
deceive or mislead recipients, or any Internet access service, as to the origin of such messages,
(3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates
the transmission of such messages,
(4) registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic
(5) falsely represents oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more
Internet Protocol addresses, and intentionally initiates the transmission of multiple commercial electronic mail
(1) a fine under this title, imprisonment for not more than 5 years, or both, if—
(A) the offense is committed in furtherance of any felony under the laws of the United States or of any State; or
(2) a fine under this title, imprisonment for not more than 3 years, or both, if—
(A) the offense is an offense under subsection (a)(1);
(B) the offense is an offense under subsection (a)(4) and involved 20 or more falsified electronic mail or online user
(C) the volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during any 24-
(D) the offense caused loss to one or more persons aggregating $5,000 or more in value during any 1-year period;
more during any 1-year period; or
the defendant occupied a position of organizer or leader; and
(3) a fine under this title or imprisonment for not more than 1 year, or both, in any other case.
(c) Forfeiture.—
(1) In general.—The court, in imposing sentence on a person who is convicted of an offense under this section, shall
order that the defendant forfeit to the United States—
(A) any property, real or personal, constituting or traceable to gross proceeds obtained from such offense; and
(B) any equipment, software, or other technology used or intended to be used to commit or to facilitate the
(2) Procedures.—The procedures set forth in section 413 of the Controlled Substances Act (21 U.S.C. 853), other than
(d) Definitions.—In this section:
(1) Loss.—The term “loss” has the meaning given that term in section 1030(e) of this title.
(2) Materially.—For purposes of paragraphs (3) and (4) of subsection (a), header information or registration
information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of
(3) Multiple.—The term “multiple” means more than 100 electronic mail messages during a 24-hour period, more than
(4) Other terms.—Any other term has the meaning given that term by section 3 of the CAN-SPAM Act of 2003 [15
U.S.C. Section 7701].
3. The U.S. Safe Web Act
The Undertaking Spam, Spyware, and Fraud Enforcement with Enforcers Beyond the Borders (U.S. Safe
Web) Act of 2006 allows the Federal Trade Commission (FTC) to cooperate and share information with
foreign agencies investigating and prosecuting Internet fraud, spamming, and spyware. Internet service
providers (ISPs) have a “safe harbor”—immunity from liability—for supplying information to the FTC
concerning unfair or deceptive conduct in foreign jurisdictions.
ADDITIONAL BACKGROUND—
Investigating and Prosecuting Cyber Crime
To cooperate and share information with foreign agencies investigating and prosecuting Internet fraud,
Congress enacted the Undertaking Spam, Spyware, and Fraud Enforcement with Enforcers Beyond the Borders (U.S.
Safe Web) Act of 2006. Among other things, the act also provides Internet service providers with immunity from
liability (a “safe harbor”) for supplying information to the Federal Trade Commission concerning unfair or deceptive
conduct in foreign jurisdictions. Following is some of the text of the U.S. Safe Web Act.
15 U.S.C. Section 57c-1
Staff exchanges
(a) In general
The Commission may—
(2) detail officers or employees of the Commission to work on a temporary basis for appropriate foreign government
agencies.
(b) Reciprocity and reimbursement
The staff arrangements described in subsection (a) of this section need not be reciprocal. The Commission may accept
message or to investigate the alleged violation.
CHAPTER 6: INTENTIONAL TORTS AND PRIVACY 135
members, and employees in carrying out such arrangements.
(c) Standards of conduct
A person appointed under subsection (a)(1) of this section shall be subject to the provisions of law relating to ethics,
conflicts of interest, corruption, and any other criminal or civil statute or regulation governing the standards of
conduct for Federal employees that are applicable to the type of appointment.
15 U.S.C. Section 57b-2b
Protection for voluntary provision of information
(a) In general
(1) No liability for providing certain material
An entity described in paragraphs (2) or (3) of subsection (d) of this section that voluntarily provides material to the
Commission that such entity reasonably believes is relevant to—
(B) assets subject to recovery by the Commission, including assets located in foreign jurisdictions;
(2) Limitations
Nothing in this subsection shall be construed to exempt any such entity from liability—
(A) for the underlying conduct reported; or
(b) Certain financial institutions
(1) a disclosure regarding assets, including assets located in foreign jurisdictions—
(A) related to possibly fraudulent or deceptive commercial practices;
(B) related to persons involved in such practices; or
(C) otherwise subject to recovery by the Commission; or
(2) a disclosure regarding suspicious chargeback rates related to possibly fraudulent or deceptive commercial
practices.
(c) Consumer complaints
(d) Application
(1) A financial institution as defined in section 5312 of Title 31.
(2) To the extent not included in paragraph (1), a bank or thrift institution, a commercial bank or trust company, an
(3) A courier service, a commercial mail receiving agency, an industry membership organization, a payment system
provider, a consumer reporting agency, a domain name registrar or registry acting as such, and a provider of
alternative dispute resolution services.
(4) An Internet service provider or provider of telephone services.
ENHANCING YOUR LECTURE—
CROSS-BORDER SPAM
Spam is a serious problem in the United States, but enforcing antispam laws has been complicated by the fact that
many spammers are located outside U.S. borders. After the CAN SPAM Act of 2003 prohibited false and deceptive e–
mails originating in the United States, spamming from other nations increased, and the wrongdoers generally were
able to escape detection and legal sanctions.
Before 2006, the Federal Trade Commission (FTC) lacked the authority to investigate cross-border spamming
activities and to communicate with foreign nations concerning spam and other deceptive practices conducted via the
Internet. In December 2006, however, Congress passed the U.S. Safe Web Act of 2006 (also known as the Undertaking
Spam, Spyware, and Fraud Enforcement with Enforcers Beyond Borders Act of 2006),a which increased the FTC’s ability
to combat spam on a global level.
CHAPTER 6: INTENTIONAL TORTS AND PRIVACY 137
The act allows the FTC to cooperate and share information with foreign agencies in investigating and prosecuting
those involved in Internet fraud and deception, including spamming, spyware, and various Internet scams. Although
the FTC and foreign agencies can provide investigative assistance to one another, the act exempts foreign agencies
from U.S. public disclosure laws. In other words, the activities undertaken by the foreign agency (even if requested by
the FTC) will be kept secret.
FOR CRITICAL ANALYSIS
TEACHING SUGGESTIONS
1. To illustrate any tort, set out the elements and provide a hypothetical in which one of the elements is missing. This
helps students to identify and distinguish the elements in fact situations. Possible hypotheticals include: Driving in a
2. Tort law involves civil liability. This chapter provides an opportunity to emphasize the distinction between civil and
criminal liability by providing examples of acts that constitute a tort and a crime, a tort and no crime, a crime and no
tort, and no tort and no crime. For instance:
a. Believing he is entitled to Paula’s typewriter, Ralph takes it. Ralph has committed a tort (conversion) but
no crime (because he lacked criminal intent).
Cyberlaw Link
Ask students to consider the parameters of tort law in cyberspace. What is its potential and what are its limits?
138 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
How might the tort of misappropriation be applied in cases of misconduct online? What are some of the tort
causes of action that might apply to defective or misleading electronic transfers of information?
DISCUSSION QUESTIONS
1. Identify and define the torts that protect against the intentional interference with persons. Assault. An
intentional, unexcused act that creates in another person a reasonable apprehension or fear of immediate harmful or offensive
contact. Battery. An unexcused, harmful, or offensive physical contact intentionally performed. False imprisonment. The
2. Identify and describe defenses to assault and battery. Consent. There is no liability for damage done by an act to
which the injured person consented (as long as the act was within the boundaries of the consent). Self-defense. An individual
3. What is the basis for the tort of defamation? The publication of a statement that holds an individual up to
4. Discuss the category of business tort known as wrongful interference with a contractual relationship. The basic
5. What are defenses to charges of wrongful interference with the business rights of others? The interference was
6. What is appropriation? The use of one person’s name or likeness by another, without permission and for the benefit
7. Identify and define the torts that protect against the intentional interference with property. Trespass to land.
When a person, without permission, enters onto another’s land, or causes anything or anyone to enter onto the land, or
8. Why are Internet service providers (ISPs) exempt from liability, under some statutes, for the actions of their
customers? Sometimes it is viewed as unfair to impose liability on an ISP for the actions of its customers, who may number in
9. Large damages awards in tort litigation have to be paid by someone. If the defendant is insured, then
insurance companies foot the bill. Ultimately, though, high insurance rates are passed on to consumers of goods and
140 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
services in the United States. Will tort reform that reduces the size and number of damages awards ultimately mean
lower costs of goods and services? Will tort reform lead to higher risks associated with services and products?
10. Considering that punitive damages are intended in part to punish, should a defendant’s financial situation be
taken into account in setting the amount? Yes, because the “punishment” might otherwise be disproportionate to the
ACTIVITY AND RESEARCH ASSIGNMENTS
2. News reports of local, national, and international controversies involving the subjects considered in this chapter can
often be found and may be used effectively in discussing this material. Events that are frequently widely publicized include
competitors’ wrongfully attempting to obtain information and cases involving professional athletes. Have students keep an eye
out for these and discuss them in class.
EXPLANATIONS OF SELECTED FOOTNOTES IN THE TEXT
Footnote 9: The case of New York Times v. Sullivan grew out of an advertisement placed in the New York
Times in 1960 to raise money for civil rights causes. Titled “Heed Their Rising Voices,” the ad stated that thousands of African–
American students were engaging in nonviolent demonstrations in affirmation of their right to live in dignity. The ad claimed
that the students’ efforts to uphold the guarantees of the Constitution and the Bill of Rights were being met by “an
unprecedented wave of terror by those who would deny” those guarantees. The ad described a number of events by way of
illustration, including the expulsion of students for demonstrating at the Alabama state capitol in Montgomery and the
“truckloads of police armed with shotguns and tear gas [that] ringed the Alabama State College campus.” No specific public offi–
cial was named. The ad asked for funds to support the student movement, the struggle for the right to vote, and the legal
defense of Martin Luther King, Jr., who had been indicted for perjury. The ad was signed with the names of sixty-four well-
known personalities in public affairs, religion, trade unions, and the arts. L. B. Sullivan, commissioner of the Montgomery police
department, claimed that he was implicitly the butt of allegedly libelous charges. In fact, the ad was full of mistakes unrelated
to the alleged libel (for example, the students had not been expelled for demonstrating at the capitol, but for demanding service
CHAPTER 6: INTENTIONAL TORTS AND PRIVACY 141
at a lunch counter in the Montgomery County courthouse). Citing the unrelated mistakes, Sullivan’s former employer testified
that he would not reemploy Sullivan if he believed “the things that the paper said he did.” Under Alabama law, the statements
were found libelous per se on the ground that they injured Sullivan in his reputation, profession, trade, or business, and the jury
awarded him $500,000. The Alabama Supreme Court affirmed the decision. The Times appealed. The United States Supreme
Court reversed. The Supreme Court ruled that even applications of the law of libel must be made “against the background of a
Footnote 11: After Dick and Karyn Anderson’s marriage collapsed and they divorced, Karyn’s new boy friend Paul
Mergenhagen began following Dick’s new wife Maureen. On more than a dozen occasions Paul took photos of, and made
obscene gestures to, Maureen as she was driving in her car or walking with her children. Frightened, disturbed, distracted,
nervous, upset, shaken, and scared, Maureen called the police several times. Paul admitted that he followed Maureen at least
four times and took more than thirty photos of her car. Maureen filed a suit in a Georgia state court against Paul, alleging,
among other things, invasion of privacy. The court issued a summary judgment in Paul’s favor. Maureen appealed. In Anderson
v. Mergenhagen, a state intermediate appellate court reversed and remanded. “[S]urveillance of an individual on public
thoroughfares, where such surveillance aims to frighten or torment a person, is an unreasonable intrusion upon a person’s
privacy. . . . [R]epeatedly following a woman, who was pregnant for part of that time and was frequently alone or with her
small children, photographing her at least 40 times, repeatedly causing her to become frightened and upset, to flee to her
home, and to call the police seeking help, creates a jury question as to whether the defendant’s actions . . . intruded upon her
privacy.”
Under a Georgia state statute [Official Code of Georgia Section16-5-90(a)(1)
A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person
at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the
other person. . . . For the purpose of this article, the term “place or places” shall include any public or private property
Maureen alleged in part that Paul’s conduct constituted stalking. Paul admitted to certain acts that might qualify but
denied that he had the requisite intent. The court ordered this issue to go to trial. Could Paul be liable if there is no finding
of intent? No. The statute requires “knowing and willful” conduct. This conduct must be “directed at a specific person which
causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or
her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate
purpose.”
Suppose that Dick and Karyn had two children and Dick had been awarded custody of them. If Pau had been
watching Maureen to determine her fitness to care for the children, would the result in this case have been different?
142 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
Explain. There would likely be no privacy violation by a parent’s watching, or even eavesdropping and spying, on the other
parent’s spouse to determine that individual’s fitness for custody of the parents’ children. The same factors would determine
the case, however: whether the surveillance was “conducted in a vicious or malicious manner not reasonably limited and
designated to obtain information needed for the defense of a lawsuit or deliberately calculated to frighten or torment the
plaintiff.”
To succeed on a claim of intrusion into an individual’s affairs or seclusion, should a plaintiff have to prove a
physical intrusion? Why or why not? The court pointed out that under Georgia law “to state a claim under the ‘unreasonable
intrusion’ tort, the plaintiff must allege a physical intrusion.” Invading someone’s home or searching their personal belongings,
for example, would qualify. The court explained further, however, that “this ‘physical’ requirement can be met by showing that
Footnote 12: Vanna White, hostess of “Wheel of Fortune,” markets her identity to advertisers. Without White’s
permission, Samsung Electronics America, Inc., attempted to use White’s identity. An ad for Samsung videocassette recorders
depicted a robot, dressed in an outfit resembling White’s and posed next to a game board that resembled the “Wheel of
Fortune” set, in a stance for which White is famous. White sued Samsung, alleging, among other things, that the company had
appropriated her celebrity status. The court granted Samsung’s motion for summary judgment. White appealed. In White v.
Samsung Electronics America, Inc., the U.S. Court of Appeals for the Ninth Circuit held that it is not important how a
Circuit Judges Kozinski, O’Scannlain, and Kleinfeld dissented from the majority opinion. The following is an excerpt from
their dissent (as it appears on Westlaw).
Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. [FN1] Clint Eastwood doesn’t
want tabloids to write about him. [FN2] Rudolph Valentino’s heirs want to control his film biography. [FN3] The Girl
Scouts don’t want their image soiled by association with certain activities. [FN4] George Lucas wants to keep Strategic
Defense Initiative fans from calling it “Star Wars.” [FN5] Pepsico doesn’t want singers to use the word “Pepsi” in their
songs. [FN6] Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve.
[FN7] Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. [FN8] Paul
Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. [FN9] And scads of
copyright holders see purple when their creations are made fun of. [FN10]
FN1. See Eben Shapiro, Rising Caution on Using Celebrity Images, N.Y. Times, Nov. 4, 1992, at D20 (Iraqi diplomat
FN2. Eastwood v. Superior Court, 149 Cal.App.3d 409, 198 Cal.Rptr. 342 (1983).
FN3. Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860, 160 Cal.Rptr. 352, 603 P.2d 454 (1979) (Rudolph Valentino);
see also Maheu v. CBS, Inc., 201 Cal.App.3d 662, 668, 247 Cal.Rptr. 304 (1988) (aide to Howard Hughes). Cf. Frank
Gannon, Vanna Karenina, in Vanna Karenina and Other Reflections (1988) (A humorous short story with a tragic ending.
“She thought of the first day she had met VR__SKY. How foolish she had been. How could she love a man who wouldn’t
even tell her all the letters in his name?”).
FN5. Lucasfilm Ltd. v. High Frontier, 622 F.Supp. 931 (D.D.C.1985).
FN6. Pepsico Inc. claimed the lyrics and packaging of grunge rocker Tad Doyle’s “Jack Pepsi” song were “offensive to [it]
and […] likely to offend [its] customers,” in part because they “associate [Pepsico] and its Pepsi marks with intoxication
and drunk driving.” Deborah Russell, Doyle Leaves Pepsi Thirsty for Compensation, Billboard, June 15, 1991, at 43.
(1991); The Wonder Years (ABC 1988-present) (“Wonder Years” was a slogan of Wonder Bread); Tim Rice & Andrew
Lloyd Webber, Joseph and the Amazing Technicolor Dream Coat (musical). Hear Janis Joplin, Mercedes Benz, on Pearl
1979); Mel Tillis, Coca- Cola Cowboy, on The Very Best of (MCA 1981) (“You’re just a Coca–Cola cowboy / You’ve got an
Eastwood smile and Robert Redford hair …”). Dance to Talking Heads, Popular Favorites 1976-92: Sand in the Vaseline
(Sire 1992); Talking Heads, Popsicle, on id. Admire Andy Warhol, Campbell’s Soup Can. Cf. REO Speedwagon, 38
Special, and Jello Biafra of the Dead Kennedys. The creators of some of these works might have gotten permission from
the trademark owners, though it’s unlikely Kool-Aid relished being connected with LSD, Hershey with homicidal
maniacs, Disney with armed robbers, or Coca-Cola with cultural imperialism. Certainly no free society can demand that
artists get such permission.
* * * *
FN25. See Spaceballs (1987). Compare Madonna: Truth or Dare (1991) with Medusa: Dare to Be Truthful (1991);
Loaded Weapon I (1993) with Lethal Weapon (1987); Young Frankenstein (1974) with Bride of Frankenstein (1935).
FN29. The majority’s failure to recognize a parody exception to the right of publicity would apply equally to parodies of
politicians as of actresses. Consider the case of Wok Fast, a Los Angeles Chinese food delivery service, which put up a
billboard with a picture of then-L.A. Police Chief Daryl Gates and the text “When you can’t leave the office. Or won’t.”
(This was an allusion to Chief Gates’s refusal to retire despite pressure from Mayor Tom Bradley.) Gates forced the
restaurant to take the billboard down by threatening a right of publicity lawsuit. Leslie Berger, He Did Leave the Office—
And Now Sign Will Go, Too, L.A. Times, July 31, 1992, at B2. See also Samsung Has Seen the Future: Brace Yourself,
Adweek, Oct. 3, 1988, at 26 (ER 72) (Samsung planned another ad that would show a dollar bill with Richard Nixon’s
face on it and the caption ‘Dollar bill, 2025 A.D.., ‘ but Nixon refused permission to use his likeness); Madow supra note
19, at 142-46 (discussing other politically and culturally charged parodies).
Footnote 18: In ancient times, it was not the existence of a contract that was important but the relation recognized
by law in which the parties stood and with which the third party interfered. In early Roman law, the head of a household could
maintain an action against one who committed violence on household members, including slaves. By the 1200s, the common
law had incorporated this idea with a twist—an action for damages could be sustained by any master for loss of the services of a
servant through violence committed on the servant. After the Black Death, in 1349, because of the shortage of labor in England,
a system of compulsory labor was introduced in an Ordinance of Labourers (later Statute of Labourers). A penalty was provided
ANSWERS TO ESSAY QUESTIONS IN
STUDY GUIDE TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
BY HOLLOWELL & MILLER
1. What is a tort? A tort is a civil wrong (other than a breach of contract) for which a remedy is provided in the form of
2. What is a cyber tort, and how are tort theories being applied in cyberspace? A cyber tort is a tort committed in
cyber space. The text states that determining what tort duties apply in cyberspace and the point at which one of those duties is
breached is not an easy task for the courts. Generally, tort theories are being applied in cyberspace in traditional ways with
some additional problems caused by the technology.
REVIEWING—
INTENTIONAL TORTS AND PRIVACY
Two sisters, Darla and Irene, are partners in an import business located in a small town in Rhode Island. Irene is
married to a well-known real estate developer and is campaigning to be the mayor of their town. Darla is in her mid-
thirties and has never been married. Both sisters travel to other countries to purchase the goods they sell at their retail
store. Irene buys Indonesian goods, and Darla buys goods from Africa. After a tsunami (tidal wave) destroys many of
1. Suppose that Darla tells several of her friends about Irene instructing the man to take goods without
paying for them from the people of Indonesia after the tsunami disaster. If Irene files a tort action against
Darla alleging slander, will her suit be successful? Why or why not? No, because what Darla said was true and
2. Now suppose that Irene wins the election and becomes the city’s mayor. Darla then writes a letter to the
editor of the local newspaper disclosing Irene’s misconduct. If Irene accuses Darla of committing libel, what
defenses could Darla assert? Truth is normally an absolute defense to any claim of defamation or slander. Because
3. If Irene accepts goods shipped from Indonesia that were wrongfully obtained, has she committed an
intentional tort against property? Explain. Yes, because she has accepted wrongfully obtained goods, even though it
146 INSTRUCTOR’S MANUAL TO ACCOMPANY BUSINESS LAW, TWELFTH EDITION
without paying for them.
4. Suppose now that Irene, who is angry with her sister for disclosing her business improprieties, writes a
letter to the editor falsely accusing Darla of having sexual relations with her neighbor’s thirteen-year-old son.
For what intentional tort or torts could Darla sue Irene in this situation? Defamation per se and emotional distress.
The strongest suit would be for defamation per se. Irene’s letter is defamation per se because the false information
involves a claim that Darla committed a criminal act. There could also be a claim of emotional distress, since the
outrage of being accused of this act could be found to exceed the bounds of decency.
DEBATE THIS:
Because of the often anonymous nature of the Internet, defamation has become an outdated legal
concept. It’s no too difficult to track down the person responsible for the defamatory statement. Each day in
blogs around the world, statements are posted that legally constitute libel. So what? The cost of tracking down the
Simply ignoring libelous statements posted on the Web will further encourage more such statements. If