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A Troll Heads to Court
Jason Fortuny, the subject of Sunday's NYT
Mag
cover story, has been sued by one of the victims/schmucks from
his "Craigslist
Experiment." (WARNING: link not safe for work).
Background: Fortuny posted a rather raunchy ad, posing as a
submissive heterosexual woman seeking a dominant heterosexual male
for a little BDSM play. Over 170 men responded, many of them from
their personal and work email accounts (as opposed to a dummy
account started with fake personal info that everyone in his or her
right mind should have for some very good,
nonsexual reasons). The men sent pictures (some nude, some
not), promised to do all kinds of sexual things to Fortuny's
pseodonymous fem/sub, and requested meetings. Fortuny posted
everything he received on his blog.
Two years later, one of the respondents is looking
for some payback:
one of his victims has filed a $75,000 lawsuit against Fortuny in U.S. District Court, and this summer (after four months of effort) finally obtained a valid address for Fortuny and issued a summons....
According to the suit Fortuny "acted with actual malice to harm and deceive the individuals responding to the Craigslist ad." The suit demands a jury trial and seeks a full slate of damages — compensatory, statutory, and punitive, plus attorney's fees and costs.
"Plaintiff has suffered, and continues to suffer, harm arising from the foregoing wrongful conduct by Mr. Fortuny," the lawsuit complains, identifying the victim as John Doe and arguing that the incident affected his private life "and the manner in which he is viewed among family, friends, and colleagues."
John Doe is asking that Fortuny be enjoined from publishing the photo, that Fortuny destroy his copy of the photo (and sexy email), and to "cooperate in the removal...from any cached sites."
The specific charges?
Count one: Violation of copyright act
Count two: Public disclosure of private facts
Count three: Intrusion upon seclusion
Count four: Injunctive relief
And Fortuny's response (which you can read in greater detail here):
"In his communication, Plaintiff does not use his actual name, or provide any method of personal contact," he writes in his motion to dismiss — noting that the victim had used an anonymous email address....
"I did not obtain any information by intruding into Plaintiff's personal space, eavesdropping, or illegally intercepting any communication," Fortuny argues. "Thus, the disclosure of Plaintiff's e-mail is not, by its nature, personal or intrusive."...
"The use of the photo is in reduced form, is transformative, does not affect market value of the original photo, and is for a purpose of education and public interest." The motion also notes that it's a 4-kilobyte image (and not the original 22 kilobytes), and "there is ample case law that protects the fair use of reduced versions of media, especially for the purposes of education and discussion."
Andy Baio at Waxy.org has a great timeline of the Fortuny scandal, which he updated this morning. I wrote about Fortuny and the antisocial troll subculture here.
Episiarch|8.5.08 @ 3:54PM|#
Let's see...don't send naked pictures of yourself to people you
don't know if you care what gets done with that picture.
OK, that was easy. What's our next lulz? I say we create an
elaborate scheme to get Mike Riggs to send naked pictures of
himself to Fortuny.
|8.5.08 @ 3:55PM|#
Were John Doe to beat the shit out of Fortuny, I'd find it
difficult to convict him.
Hell, I'd find it difficult to not by him a drink afterwards.
That said, he doesn't (shouldn't?) have a legal case. IANAL, but I
can talk shit on the tubes.
Naga Sadow|8.5.08 @ 3:55PM|#
From the looks of the specific charges, Fortuny is gonna be able to counter sue for his lawyer fees and court costs.
robc|8.5.08 @ 4:03PM|#
Epi,
Let's see...don't send naked pictures of yourself to people
you don't know if you care what gets done with that
picture.
Fixed.
There are reasons there are lots of ex-girlfriend pictures/videos
on the web.
|8.5.08 @ 4:04PM|#
That said, he doesn't (shouldn't?) have a legal
case.
Sure he does. It's just not a criminal case.
-jcr
Naga Sadow|8.5.08 @ 4:04PM|#
Episiarch,
If I can't safely send naked pictures of myself to people I don't
know then I don't wanna live in this cruel world. Sending naked
pictures of myself is why I got in the game in the first place.
Jennifer|8.5.08 @ 4:05PM|#
Ignoring the issues of sex and BDSM (which tend to cloud
people's judgments), what, if any, are the laws concerning the
publication of information obtained under false pretenses?
For example: Suppose I see a help-wanted ad for a job in my field,
and send off a cover letter and resume. Then it turns out the ad
was fake, and the prankster publishes my letter, resume and e-mail
address along with a notation to the effect of "Look at this
sucker, thinking I would give her a job." Have I any rights in this
matter?
|8.5.08 @ 4:08PM|#
curiosity:
what is the picture posted with this post from? Is that one of the
PG rated pictures from Fortuny's site?
Naga Sadow|8.5.08 @ 4:08PM|#
Good point Randolph. I forgot that in criminal cases it's reasonable doubt and in civil cases a preponderance of evidence.
Episiarch|8.5.08 @ 4:09PM|#
If I can't safely send naked pictures of myself to people I
don't know then I don't wanna live in this cruel world. Sending
naked pictures of myself is why I got in the game in the first
place.
Golden rule of naked picture sending: make sure it's a picture
you're proud to have people see.
|8.5.08 @ 4:12PM|#
I agree with J Sub D. The proper response is to beat the little bastard senseless. That said, the guy lied with the specific intent to embarass people. It seems to me that qualifies for intentional infliction of emotional distress. If I remember 1st year torts correctly, the standard is conduct with a reckless disregard for the liklyhood of causing emotional distress to the plaintiff qualifies. In this case, it seems to me that his posting of the responses and pictures is acting with a reckless disregard for the the emotional distress it would cause the subjects.
Naga Sadow|8.5.08 @ 4:14PM|#
Sweet Jesus, Episiarch!!! Now there are rules to sending naked pictures? Everything used to be black and white to me and now there are these gray areas!!!
|8.5.08 @ 4:14PM|#
If any unfortunate soul cons me into sending a naked picture, they will have suffered enough.
Episiarch|8.5.08 @ 4:17PM|#
Sweet Jesus, Episiarch!!! Now there are rules to sending
naked pictures? Everything used to be black and white to me and now
there are these gray areas!!!
Naga, it's very simple: just send your naked pictures here and here.
|8.5.08 @ 4:18PM|#
For no particular reason I'm reminded of the following scene
from The Simpsons:
Bart bids a tearful goodbye to Stampy outside the animal
refuge. Stampy reaches for him and Bart cringes, expecting to be
put in his mouth once again, but instead Stampy lifts him on his
back. The elephant runs into the pasture, spilling Bart off, and
starts butting another elephant.
"Attaboy, Stampy! Butt him once for me!"
[Stampy butts another elephant]
Marge: Gosh, I thought he'd be happier in his true habitat.
Warden: Oh, I think he is.
Marge: Then why is he attacking all those other elephants?
Warden: Well, animals are not like people, Mrs. Simpson. Some of
them act badly because they've had a hard life, or have been
mistreated...but, like people, some of them are just jerks.
[Homer butts the warden repeatedly]
Stop that, Mr. Simpson.
|8.5.08 @ 4:26PM|#
For example: Suppose I see a help-wanted ad for a job in my
field, and send off a cover letter and resume. Then it turns out
the ad was fake, and the prankster publishes my letter, resume and
e-mail address along with a notation to the effect of "Look at this
sucker, thinking I would give her a job." Have I any rights in this
matter?
Jennifer, I usually love your stuff, but in this case, I can't see
why you would. It'd be a crappy thing to do, but illegal?
Just ask the "Impossible is Nothing" guy..
Jennifer|8.5.08 @ 4:29PM|#
Jennifer, I usually love your stuff, but in this case, I
can't see why you would. It'd be a crappy thing to do, but
illegal?
So when my currently-underemployed self sends resumes and letters
to various job possibilities, I simply have to accept the idea that
I'm leaving myself open to the risk of having my home address and
phone number posted on the Web?
The Extispicator|8.5.08 @ 4:31PM|#
As an attorney, I believe that he does have a claim for Count
No. 2 (none of the others). In this case and in Jennifer's
hypothetical, yes, there is a recognized claim for distribution in
public of information you intended to be kept private. The
difficulty is in proving the damages.
Maybe Jon Doe lost a job, maybe in Jennifer's hypothetical someone
had their identity stolen and accounts cleaned out, etc. In most
Public Disclosure cases, though, the only damage is hurt feelings
and a jury award of $1.
|8.5.08 @ 4:44PM|#
My question: what's the likelihood that this letter will end the
case?
If Mr. Fortuny gets the benefit of Fed. R. Civ. P. 8, and his
letter is construed "for substantial justice," there's still the
question as to whether his letter counts as an answer or as a
motion to dismiss.
If it counts as a motion to dismiss, he may or may not succeed,
because, failing some obvious jurisdictional error that I don't
want to waste time figuring out in the pleadings, in considering a
12(b) motion the plaintiff's complaint wins all contests of who's
right and who's wrong and a moderately clever lawyer will draft a
complaint so that it sounds like a tort, even if the "real facts"
don't support it.
Which means that Mr. Fortuny would have to answer, and spend some
money.
Or, if the letter is an answer, then Mr. Fortuny has to continue
participating in the lawsuit; they don't dismiss themselves. He can
file a separate motion, but the pendency of that motion won't stop
the clock.
|8.5.08 @ 4:50PM|#
I had to check, from work, to see if that site really was NSFW.
It isn't. Can I sue
Reason? Yah, I know they gave a warning, but they KNEW some of us
were going to have to have a look anyway. Most of the NSFW stuff I
view really isn't all that NSFW.
David Ross|8.5.08 @ 4:51PM|#
posting nekkid BDSM pics sent to you in private == actionable,
IMO.
posting nekkid BDSM pics of MARRIED MEN sent to you in private ==
epic lulz. Roffles, in fact.
Jennifer|8.5.08 @ 5:04PM|#
It's pretty damned sociopathic to say "Betraying people's trust is funny," even when the people who trusted you have sexual proclivities outside the mainstream.
Episiarch|8.5.08 @ 5:09PM|#
Jennifer, it's not that "betraying people's trust is funny",
it's that "people who send revealing pictures to people they don't
know and have never even seen and then cry that they got betrayed
is funny".
Do you feel this bad for people who get fleeced by Nigerian email
scams?
KipEsquire|8.5.08 @ 5:09PM|#
Based on the limited info available, I think the PDPF claim (#2)
could easily be a winner.
The elements are summarized nicely here.
Of course, one must sue where the tort is actually recognized --
which isn't everywhere.
Fluffy|8.5.08 @ 5:11PM|#
Frankly, unless you're sending information to someone who is
acting in a fiduciary capacity to you or who has some other
statutory obligation to keep silent [doctors, for example] I don't
think you should be able to control or punish the use of your
information.
Don't want people to know that you're into BDSM? Don't communicate
that fact to anyone, then.
I don't understand the modern notion that there is information you
can communicate to others that they are obligated to forget, or not
track, or not share.
And John's post is a good example of why the emotional distress
tort is such garbage. Basically it's an all-purpose crock designed
to allow juries to punish people for engaging in behavior that is
or that ought to be legal, if it hurts someone's feelings. If you
feel badly because other people find out you are into BDSM, tough
luck. You're basically arguing that you have a legal right to be
protected from the opinion others form of you based on true facts,
and that's crap.
bill|8.5.08 @ 5:11PM|#
"Intrusion Upon Seclusion" is now officially the name of the band I'm going to start just so I can use that for the name.
Fluffy|8.5.08 @ 5:14PM|#
It's pretty damned sociopathic to say "Betraying people's
trust is funny," even when the people who trusted you have sexual
proclivities outside the mainstream.
It really doesn't matter if it's funny.
What matters is if it should be legal, and/or if we should allow
the misuse of the civil court system to devise a proxy means of
making it illegal.
A civil court system that allows you to recover damages if people
find out that you're into BDSM is basically saying that society
should punish people for communicating true information.
|8.5.08 @ 5:14PM|#
It's possible that reason for the plaintiff's case was just to get Fortuny's address. Distributing it to the other 169 men on his website would likely yield better revenge than suing him ever could.
bill|8.5.08 @ 5:16PM|#
Oh and BTW, the guy perpetrated a fraud. As a radical capitalist to whom the initiatory use of force, FRAUD or coercion are anathema I think the guy should be punished in some manner. Lying is bad. Lying with the express intent to hurt someone should be actionable.
Episiarch|8.5.08 @ 5:19PM|#
It's possible that reason for the plaintiff's case was just
to get Fortuny's address. Distributing it to the other 169 men on
his website would likely yield better revenge than suing him ever
could.
This is a good point. Fortuny might want to visit the sporting
goods store right away. And move.
Jennifer|8.5.08 @ 5:27PM|#
Do you feel this bad for people who get fleeced by Nigerian
email scams?
I don't express admiration for the scammer and act like he's some
comedic genius, which is more in keeping with the topic of this
thread.
Frankly, unless you're sending information to someone who is
acting in a fiduciary capacity to you or who has some other
statutory obligation to keep silent [doctors, for example] I don't
think you should be able to control or punish the use of your
information.
So if I apply for a job I should just suck it up if my resume and
all the personal information therein ends up all over the web?
Fluffy|8.5.08 @ 5:28PM|#
Oh and BTW, the guy perpetrated a fraud. As a radical
capitalist to whom the initiatory use of force, FRAUD or coercion
are anathema I think the guy should be punished in some
manner.
A fraud requires that some material benefit be gained.
The guy used an online persona to get information. Everyone who
registers for a newspaper website using a non-personal email does
that.
|8.5.08 @ 5:29PM|#
For lying to be fraud, there has to be some tangible benefit
gained by the liar as a direct result of the lie.
I don't see that being the case here.
Fluffy|8.5.08 @ 5:31PM|#
So if I apply for a job I should just suck it up if my
resume and all the personal information therein ends up all over
the web?
Well, yes. Frankly there's nothing on your resume that isn't known
by large numbers of people. All your former coworkers, bosses, and
customers know where you worked before, and you have no ability to
stop them from communicating that fact to anyone. You can't force
people to forget where you went to college. Your home address is a
matter of public record. Maybe you have an unlisted phone number,
but that's between you and your phone company and if you give me
your phone number for some reason you can't stop me from
communicating it.
Episiarch|8.5.08 @ 5:31PM|#
So if I apply for a job I should just suck it up if my
resume and all the personal information therein ends up all over
the web?
You emailed it to a guy you never met. Yes, you should just suck it
up. You cannot have an airtight seal on your personal
information--it's not possible. So making stupid rules/laws to try
and make it possible--which it isn't--is pointless and harmful.
It's like the music industry--they can't stop copying and sharing,
and they ways they are trying are harmful and stupid.
This is the way the world is now. Get used to it.
|8.5.08 @ 5:32PM|#
So if I apply for a job I should just suck it up if my
resume and all the personal information therein ends up all over
the web?
Umm, yeah. If you don't like it, only send your resume to potential
employers who sign a confidentiality agreement.
|8.5.08 @ 5:37PM|#
This case has all kinds of interesting philosophical
implications...My first thought was Episarchs (that is, you can't
complain if you knowingly sent the stuff). But upon further
reflection jennifer's question seemed more insightful.
Isn't the reason why most libertarians throw fraud in with force as
the two things the government can break bad on your ass for that in
the case of fraud there may not have been a truly voluntary
agreement (if I had the facts hid from me I never agreed to a
bargain including those facts)?
If so, there seems to be fraud here, knowing fraud from what I can
tell.
fluffy-I think once you told me you were either a lawyer or law
student. If so, you can probably recall this famous early case of
emotional distress where these two guys beat the living shit out of
this third fellow as his daughter watched (and they knew she was
watching). It upset her to the point that she had physical
manifestations of her mental trauma. She sued and won. Do you think
she should not have a cause of action?
bill|8.5.08 @ 5:39PM|#
This is what I meant.
From Wikipedia
Fraud, in addition to being a criminal act, is also a type of civil
law violation known as a tort. A tort is a civil wrong for which
the law provides a remedy. A civil fraud typically involves the act
of intentionally making a false representation of a material fact,
with the intent to deceive, which is reasonably relied upon by
another person to that person's detriment. A "false representation"
can take many forms, such as:
* A false statement of fact, known to be false at the time it was
made;
* A statement of fact with no reasonable basis to make that
statement;
* A promise of future performance made with an intent, at the time
the promise was made, not to perform as promised;
* A statement of opinion based on a false statement of fact;
* A statement of opinion that the maker knows to be false; or
* An expression of opinion that is false, made by one claiming or
implying to have special knowledge of the subject matter of the
opinion. "Special knowledge" in this case means knowledge or
information superior to that possessed by the other party, and to
which the other party did not have equal access.
|8.5.08 @ 5:40PM|#
What if, as an elaborate prank, I set up an office space and put
a "Help Wanted" sign out front. People come in and fill out an
application. I post their name, social security number, criminal
background, etc. on my blog site.
What's the difference with this and Jennifer's example?
BTW-In what way are most people's addresses "public record?" A lot
of people don't list their info in the phone book, many do so
because they have a reason for not wanting people to easily get
this kind of thing (perhaps they have been stalked or abused or
something from someone)
|8.5.08 @ 5:46PM|#
It'd be a crappy thing to do, but illegal?
Sure, for civil damages. The hard part will be to prove the
damages. If the jurisdiction recognizes intangible damages (a big
if, and a debate for another day), Mr. Fortuny is about to discover
what it feels like to get tied up and fucked. By a
professional.
What gets defendants into trouble is when they get the jury mad at
them. If this gets to a jury, I see no possible way Mr. Fortuny
doesn't wind up with a jury eager to hurt him however they can.
Fluffy|8.5.08 @ 5:47PM|#
Jennifer, I think what's happening here is that you think you're
applying a libertarian concern for privacy, when really your
reasoning is straight-up Naderite - to the extent that it a)
applies a concept that should be reserved for government action to
private action and b) takes the viewpoint that anyone who deals in
any way with "consumers" is their servant and lackey.
If FBI agents had bugged motel rooms and found out that a bunch of
Democrats were bondage freaks and then leaked that information to
influence the political process, that would be a violation of
privacy. But if I'm a private citizen and people email me telling
me that they're bondage freaks, they have no grounds for demanding
that I keep that information to myself.
If you buy a bag of corn chips from me, you should not be able to
tell me I can't sell that information to Frito-Lay, so that they
can bombard you with junk mail. That's because the fact that you
bought corn chips from me isn't really information about
you; it's information about me. You have to
employ Nader logic to conclude otherwise, and privilege certain
persons and certain information. And I just don't buy that.
fluffy-I think once you told me you were either a lawyer or law
student. If so, you can probably recall this famous early case of
emotional distress where these two guys beat the living shit out of
this third fellow as his daughter watched (and they knew she was
watching). It upset her to the point that she had physical
manifestations of her mental trauma. She sued and won. Do you think
she should not have a cause of action?
I am not a lawyer or law student, but I would think that there
would be other grounds for recovery here: if she was under some
kind of restraint so she was forced to witness this attack, if she
was threatened herself, etc. The case at hand is more like giving
her a cause of action if her dad cheats on her mom, and I tell her
about it and upset her.
Old Bull Lee|8.5.08 @ 5:48PM|#
Dan Savage had an interesting take on this. A lot of these guys
were actually doing something right: identifying themselves to this
hypothetical girl.
In the BDSM meet-up world, this is something you're supposed to do
so the girl can take steps to protect herself (e.g. telling a
friend who she'll be with and where) n case the guy turns out to be
a psycho.
I'm not saying that's exactly why they all identified themselves,
nonetheless guys who want to do the right thing in this situation
will now be discouraged, thus making it more difficult for these
meet-ups to be done safely.
|8.5.08 @ 5:55PM|#
"A fraud requires that some material benefit be gained."
Is that true? I always thought it was a knowing misrepresentation
of a material fact upon which the victim reasonably relied to their
detriment (in other words it's the victim's detriment not the
offender's benefit that matters). Does the "material" mean
monetary? I'm actually asking because I'm not sure myself, no
trap.
|8.5.08 @ 5:57PM|#
"But if I'm a private citizen and people email me telling me
that they're bondage freaks, they have no grounds for demanding
that I keep that information to myself."
Hey fluffy, remember that this guy "solicited" (and under false
pretenses) their information. They didn't just send it to him like
Papa John's does their coupons to me (God love 'em)
|8.5.08 @ 6:07PM|#
MNG,
There's no direct link between the lie and the alleged victim's
detriment.
The lie here is Fortuny's claim that he was a woman interested in
BDSM. If that were true, that still wouldn't be a guarantee that
the plaintiff could expect confidentiality.
If Fortuny had assured the plaintiff of confideintiality and then
published the communications, that might be actionable.
Old Bull Lee|8.5.08 @ 6:11PM|#
In setting up a sexual encounter, isn't some degree of
confidentiality implied?
Mentioning it to some of your friends is one thing, posting it in
public is something else.
|8.5.08 @ 6:15PM|#
"A fraud requires that some material benefit be
gained."
As the plaintiff's attorney, were this true, one could argue that
the material/tangible benefits were fame, promotion of his own
name/products and blog, for ad revenue.
|8.5.08 @ 6:37PM|#
The Angry Optimist | August 5, 2008, 6:15pm | #
"A fraud requires that some material benefit be gained."
As the plaintiff's attorney, were this true, one could argue that the material/tangible benefits were fame, promotion of his own name/products and blog, for ad revenue.
This.
/Too much Farking.
//As if you couldn't tell.
JB|8.5.08 @ 6:42PM|#
I would hire a PI to follow the troll for a week. Everything he did would be put on a blog.
|8.5.08 @ 6:52PM|#
In setting up a sexual encounter, isn't some degree of
confidentiality implied?
This could lead down a slippery slope to the end of all "mama"
jokes!
anon|8.5.08 @ 7:00PM|#
@Naga Sadow: "Sending naked pictures of myself is why I got in
the game in the first place."
What game are you playing and how do I sign up?
@bill: My band is already called Intrusion Upon Seclusion. If you
use this name our feelings will be hurt... and we will sue you.
Fluffy|8.5.08 @ 7:14PM|#
As the plaintiff's attorney, were this true, one could argue
that the material/tangible benefits were fame, promotion of his own
name/products and blog, for ad revenue.
This aren't material benefits gained from the plaintiff.
If I tell you I have cured cancer, and all I get from that from
you is that you think I am a great guy and walk around saying,
"That Fluffy, he's a great guy," you have not been defrauded.
You're not defrauded until I get money from you or attempt to get
money from you for my fake cure for cancer. If I'm not getting any
valuable consideration from you, I can tell you whatever ridiculous
lies I want. Maybe the photo can be said to have a dollar value,
but I doubt it.
Neu Mejican|8.5.08 @ 7:37PM|#
Fluffy,
You are wrong on the question of whether this is fraud. He gained
information that he would not otherwise have gained. The lie led
directly to a material gain, information.
But of course, fraud is really about a lie used to the detriment of
another. Unless you feel reputation has no value, I don't see how
you can argue that the lie did not lead directly to a material
harm.
Remember, information is power, is valuable, and can be used to
harm. Using fraud to obtain information should be as actionable as
using fraud to obtain money.
Neu Mejican|8.5.08 @ 7:50PM|#
There seems to be a general sense that information is a material
gain.
here...
In criminal activity, social engineering is the art of
manipulating people into performing disclosure actions or divulging
confidential information.
http://en.wikipedia.org/wiki/Social_engineering_(security)
to commit fraud such as accessing confidential information or
to gain property not belonging to them.
http://en.wikipedia.org/wiki/Impersonator
Fluffy|8.5.08 @ 8:31PM|#
But of course, fraud is really about a lie used to the
detriment of another. Unless you feel reputation has no value, I
don't see how you can argue that the lie did not lead directly to a
material harm.
Yet another person shows up in the thread to claim that someone is
harmed by having a reputation based on the truth.
Don't you realize how absolutely fucking stupid and insane that
is?
If you are actually a person who is into BDSM, you can not claim to
be harmed if you have the reputation of being into BDSM.
You can only assert that you have been harmed if you lose something
to which you are entitled. If I steal the property of some guy in
France, you can't sue me claiming I have harmed you,
because no property of yours was stolen. The people who were
revealed to be into BDSM can't argue to me that they are entitled
to possess the ongoing reputation that they aren't into
it, and have therefore not lost anything to which they are
entitled.
Don't get me wrong, I have no doubt that you could find one of our
corrupt and unjust courts to buy this bullshit. But that's, you
know, because they're corrupt and unjust. It just surprises me to
see libertarians standing up to defend this nonsense.
Kolohe|8.5.08 @ 9:24PM|#
Is it possible that since he violated the craiglist TOS, Mr. Craig (?) may have a claim?
|8.5.08 @ 9:49PM|#
Neu Mejican,
Wikipedia is not an authoritative source for legal analysis. You're
going to have to do some less sloppy research, sir.
Also, your assertion that the lie led to the disclosure implies
that if Fortuny were a woman, publishing this guy's info would not
be actionable.
|8.5.08 @ 9:59PM|#
Neu Mejican,
Here's an analogy for you. A man tells a woman he has a law degree
from Harvard, and this influences her decision to go out with him.
They have sex and she pays for a trip to Europe with him. After the
trip, she discovers he does not have a degree from Harvard.
Can she sue him for fraud, with the damages being the money spent
on the Europe trip, and the violation of her bodily integrity?
bill|8.5.08 @ 10:20PM|#
Why is everyone confusing criminal fraud and civil fraud? Yes, criminal fraud requires that some material benefit be gained by the perpetrator. Civil fraud involves the act of intentionally making a false representation of a material fact, with the intent to deceive, which is reasonably relied upon by another person to that person's detriment. Mr. Fortuny is being sued in civil(tort) court. No one is trying to charge him with a crime. As a civil case I think he might be in trouble. I guess we'll just have to wait and see.
|8.5.08 @ 10:31PM|#
So the plaintiff thought his information would be kept
confidential...because he thought he was dealing with a
woman?
This doesn't compute. There's no direct link between the deception
and the harm.
|8.5.08 @ 10:41PM|#
fluffy:Yet another person shows up in the
thread to claim that someone is harmed by having a reputation based
on the truth.
Yes. Meanwhile, in the real world, I think most of us have aspects
of our selves we would prefer to remain out of the public eye, even
as we share them with a select few. So long as those aspects ARE
NOT HARMING ANYONE, I think that we, as majority owners of our
reputations, should have considerable say as to what is publicly
bruited about. Especially in a world where it is highly likely that
people's jobs might be lost if they were known.
You cling mightily to this "but it's the truth!" idea, whereas I
think I and some others are arguing that in this case at least,
truth is not the issue. I know, I know, trying to suggest that
maybe its not about Truth is like saying pizza is evil, but really,
I think the case here is about personal, private information, and
the degree to which (and when) that information can be
publicized.
|8.5.08 @ 11:07PM|#
Jammer, is that what you really think, or what you want us to think you think. I always wonder that when I read your posts. "Jammer" is a Prisoner handle, right?
|8.5.08 @ 11:16PM|#
bigbigslacker:Jammer, is that what you
really think, or what you want us to think you think. I always
wonder that when I read your posts. "Jammer" is a Prisoner handle,
right?
No, I'm afraid I'm not that cunning. For better or worse, what I
write here is pretty much what I actually think. And the nick has a
lot more to do with initials of my name and loud music in the dorm
than Patrick McGoohan.
|8.5.08 @ 11:48PM|#
Jammer,
If you don't want your personal information published, don't share
it with an anonymous person on the Internet.
Personal responsibility: the Anti-State.
|8.6.08 @ 12:25AM|#
With regard to the posters above who think actionable fraud
requires that the fraudster receive a benefit, you would be wrong
in the vast majority of jurisdictions. The tort of fraud normally
requires injury to the plaintiff, not gain for the defendant.
From the Restatement (Second) of Torts, § 525:
"One who fraudulently makes a misrepresentation of fact, opinion,
intention or law for the purpose of inducing another to act or to
refrain from action in reliance upon it, is subject to liability to
the other in deceit for pecuniary loss caused to him by his
justifiable reliance upon the misrepresentation."
|8.6.08 @ 12:38AM|#
A fraud requires that some material benefit be
gained.
Well, actually, it's well-known that Fortuny attempted to
convince another well-known asshole by the name of Tucker Max to
help him cash in.
See
update #2:
Jason Fortuny sent an email to Tucker Max for advice (himself
Internet-famous for posting his sexual exploits online). In the
email, Jason notes that he's been flooded with thousands of phone
calls and has since changed his phone number. In a followup post to
that message board, he states clearly he wants to capitalize on the
controversy: "Let's milk this. All the way... There must be a way
to combine this. Into money. Money is important. Money is good."
He's planning on setting up a dedicated website for his exploits,
either on his Rfjason.com site or on the Craigslistsexbaits.com
domain registered by Tucker Max.
Neu Mejican|8.6.08 @ 3:15AM|#
O's TBrush,
Wikipedia is not an authoritative source for legal
analysis.
You don't say.
It is, however, a fairly good source for elucidating the general
sense of common terms.
But, of course, see bill's post above, or Jack's.
Can she sue him for fraud
Sure. He misrepresented himself to gain something of value from
her. Civil court is an appropriate forum for civil disputes of this
nature.
Also, your assertion that the lie led to the disclosure implies
that if Fortuny were a woman, publishing this guy's info would not
be actionable.
No it doesn't.
Just for fun, even if Fortuny were exactly the woman he pretended
to be, and really wanted rough sex (i.e., not a woman
misrepresenting herself), there can still be a claim in civil court
based on the disclosure bec
|8.6.08 @ 3:34AM|#
If this plaintiff is successful in his case, does it set a legal precedent for defendants caught in underage sex stings to fight the police? It seems the cops are doing the same things to set up pervs by posing as 13 year old girls.
|8.6.08 @ 9:43AM|#
Occam, you're edging awfully close to the "she was dressed like she wanted it" defense.
Rick H.|8.6.08 @ 11:27AM|#
So the plaintiff thought his information would be kept
confidential...because he thought he was dealing with a
woman?
No, because the plaintiff (reasonably) thought he was dealing with
someone into BDSM. Fortuny didn't simply say, "Hey, I'm a woman!"
and watch the bondage offers roll in. He misrepresented himself as
someone with a built-in motive to keep their information
confidential.
In setting up a sexual encounter, isn't some degree of
confidentiality implied?
Exactly. The idea that if you ever want to engage in any sexual
activity, you should expect Jason Fortuny to pop out of the bushes,
is asinine.
Fluffy|8.6.08 @ 2:58PM|#
Yes. Meanwhile, in the real world, I think most of us have
aspects of our selves we would prefer to remain out of the public
eye, even as we share them with a select few. So long as those
aspects ARE NOT HARMING ANYONE, I think that we, as majority owners
of our reputations, should have considerable say as to what is
publicly bruited about. Especially in a world where it is highly
likely that people's jobs might be lost if they were
known.
Sorry, guys. Too fucking bad.
This is why I assert that the concept of privacy being pushed here
is Naderite nonsense.
It may or may not be unfair that some people would think less of
you if they found out you were into BDSM. Either way, you don't get
to dictate the appropriate emotional response to that knowledge,
and you shouldn't get to try to dictate the social response you
receive as a result of knowledge of your preferences leaking
out.
You're basically trying to say that, since people should be free to
engage in whatever sexual activities they want as long as they are
consensual [I agree] that they also are entitled to have private
persons prevented from thinking less of them as a result of their
sexual preferences [a complete absurdity] and that therefore the
false reputation they enjoy while this information is
unknown has a dollar value and Fortuny should be liable for
damaging that.
You aren't the majority owner of your reputation. Your reputation
resides in the mind and opinion of every other human being on the
planet. If I know something true about you and communicate that to
someone else, and we decide to think less of you as a result, those
events occur in something we own 100% - our minds.
No, because the plaintiff (reasonably) thought he was dealing
with someone into BDSM. Fortuny didn't simply say, "Hey, I'm a
woman!" and watch the bondage offers roll in. He misrepresented
himself as someone with a built-in motive to keep their information
confidential.
In the absence of a specific promise of confidentiality, you have
no grounds for expecting anyone - sexual partner, potential sexual
partner, guy on the street - will keep information you communicate
to them confidential, and whatever calculated hunch you make on
your own ["Well, this person I'm talking to is into BDSM, so they
probably will be discrete,"] is your own affair.
|8.6.08 @ 4:22PM|#
If this plaintiff is successful in his case, does it set a
legal precedent for defendants caught in underage sex stings to
fight the police? It seems the cops are doing the same things to
set up pervs by posing as 13 year old girls.
I doubt it.
One thing is that the cops who are imitating underage girls are not
supposed to mention sex until their interlocur brings it up (if
they do its entrappment which invalidates the state's ability to
prosecute, regardless of this case).
Another thing is that the responders to the "craigslist experiment"
were soliciting from an adult, which they have the right to do.
However, the guys on "To Catch a Predator" solicit from people who
they reasonably think are underage, which is a crime.
|8.6.08 @ 4:36PM|#
I don't know what to think of this whole thing; except that if I
ever send personal information online that I don't want made
public, I will put something to that effect in the subject of the
email.
Subject: "By opening this email, you agree not to publicize any
information therein whereby the sender can be identified. This
includes, but is not limited to, names, birthdays, SS#, email
addresses, and pictures. If you do not agree to this, do not open
the email."
Does anyone know if I can change the font size in the email subject
field?
On second thought, maybe it would be better to send a preliminary
email with such terms and conditions and require a "yes" response
before I send the email with my info.
Neu Mejican|8.6.08 @ 5:16PM|#
Fluffy is putting up quite the fight on this one, but I still
find the argument lacking nuance.
You're basically trying to say that, since people should be
free to engage in whatever sexual activities they want as long as
they are consensual [I agree] that they also are entitled to have
private persons prevented from thinking less of them as a result of
their sexual preferences [a complete absurdity]
Not asserted or required to assert that Fortuny committed an
actionable fraud that did damage.
and that therefore the false reputation they enjoy while this
information is unknown has a dollar value and Fortuny should be
liable for damaging that.
A reputation is not true or false, but it has value and can be
damaged by the actions of another. If those actions were designed
to harm you, a claim can justly be made against the actor who
intended to inflict the harm. All you have to do is show the harm
and the malicious intent. The fraud helps the case for
demonstrating intent to harm.
But let's return to who "owns" your reputation. This concept is
slippery enough that a better term, which comes out of
conversational analysis, may be the term "face." You don't own the
reactions of others in any meaningful sense, but there seems to be
a basic right to control, to the degree possible the face you put
forward to the public. That right to control is certainly limited,
but what Fortuny did was use fraud to wrest control of face from
his victims. This harms the victims in tangible ways, and makes for
a reasonable claim to be decided in court.
Neu Mejican|8.6.08 @ 5:18PM|#
In the absence of a specific promise of
confidentiality
What are your thoughts on the concept of implied consent?
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