The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Lawsuit Based on Online Enemy's Attempt to Induce Breaches of Contract Can Proceed


From a decision last month by Judge Eli Richardson (M.D. Tenn.) in Santoni v. Mueller:

[The Plaintiff's complaint alleges:] Plaintiff identifies as a businessman who "as a hobby … used various social media platforms" to discuss topics like politics, religion, and world history. While active on social media, Plaintiff utilized a pseudonym to maintain his privacy. Over time, his accounts developed a following and he found himself, "often engaged in debate … and banter with professional journalists, political pundits, celebrities, and other full-time intellectuals and creatives."

Plaintiff also found himself engaging with Defendant, where the two interacted on Twitter from 2016 until the spring of 2019. They never met in person. At times, the interactions between Plaintiff and Defendant would become so "heated" that Plaintiff would end up blocking Defendant from contacting him. However, Plaintiff would eventually be compelled to unblock Defendant; this cycle repeated multiple times between 2018 and 2019. The cycle concluded on June 7, 2019 when Plaintiff permanently lost access to his Twitter account and transitioned to another social media site instead. Defendant sought to establish contact with Plaintiff on the new site, but he refused to engage, which resulted in Defendant exhibiting a "pattern of harassment and tortious conduct."

Between October 2018 and March 2020, Defendant hacked or attempted to hack into three different "internet network accounts that were at one time owned or operated by Plaintiff and/or his family," including Plaintiff's email account. Through this access, Defendant was able to illegally obtain personal information about Plaintiff, which she used to hack into additional accounts belonging to Plaintiff and/or his family.

Defendant was able to discover who Plaintiff was involved in business and contractual relationships with and then contact them in an effort to cause them to breach their contractual agreements with Plaintiff. Defendant was successful in causing some of Plaintiff's relationships to breach their contracts with him. Defendant also contacted Plaintiff's friends and family by posting to their public social media profiles, as well as privately messaging them about Plaintiff….

The statutory version of tortious interference [under Tennessee law] has the following elements: "(1) that there was a legal contract; (2) that the wrongdoer had sufficient knowledge of the contract; (3) that the wrongdoer intended to induce its breach; (4) that the wrongdoer acted maliciously; (5) that the contract was breached; (6) that the act complained of was the proximate cause of the breach; and (7) that damages resulted from the breach."

{[The] common law version of tortious interference in Tennessee …. differs from the statutory one in that it relates not only to actual contracts but also to prospective contractual relations and to business relationships not entailing a formal contract. Additionally, the statutory version of tortious interference allows for treble damages….. [But the] Complaint clearly references the statutory version of tortious interference ….}

Defendant challenges only the fourth element of the cause of action, arguing that Plaintiff has failed to adequately allege malice on the part of Defendant. In the context of tortious interference, malice "does not require illwill [sic] or spite toward the injured party." Nor does it mean, as it tends to mean in colloquial contexts, an intent or desire to hurt another. Instead, malice is defined as "the willful violation of a known right." This means that to properly plead malice in a tortious interference claim, Plaintiff must allege that Defendant acted intentionally and without legal justification. "Interference is without justification if it is done for the indirect purpose of injuring plaintiff or benefiting the defendant at the plaintiff's expense." …

In the present action, Plaintiff's Complaint states Defendant utilized illegally obtained personal information "to ascertain various persons with whom Plaintiff was in contractual relationships." The Complaint continues, "[a]fter becoming aware of Plaintiff's contractual counterparties, Defendant SE subsequently set about intentionally and maliciously to interfere with Plaintiff's contractual relationships …." by "supplying [them] with data, documents, and/or information that was illegally obtained in whole or in part, and/or which was either false, misleading, or inaccurate." Additionally, Plaintiff's Complaint includes a screenshot of a comment Defendant left on Plaintiff's son's Instagram account in September of 2020, which includes the following lines, "[Plaintiff] is one abusive lying clown," "This clown needs to keep his threats in his home," and "I'm not the secret keeper of abusive men."

Drawing all inferences from these allegations in the light most favorable to Plaintiff as required, the Court concludes that Plaintiff has sufficiently alleged that Defendant intentionally sought out information about Plaintiff's contractual counterparts, and then intentionally contacted those contractual counterparts with the (at minimum, indirect) purpose of harming Plaintiff and his relationships. Thus, Plaintiff has adequately alleged that Defendant's actions were intentional and without justification, and Plaintiff has sufficiently pled "malice" as that term is construed for purposes of a tortious interference claim.

The court also allowed plaintiff's intentional infliction of emotional distress claim to proceed; it found that plaintiff wasn't a public figure, and thus didn't have to show knowing or reckless falsehood.

Though Plaintiff's online activity may have included involving himself in conversations regarding political or religious controversies, the substance of Defendant's alleged tortious comments relates not to those controversies, but to Plaintiff's online behavior itself. And … "[t]here is no evidence that anyone besides" Defendant saw Plaintiff's online behavior "as a live issue or a subject of debate." In short, based on the Complaint, Plaintiff is not a public figure (even a limited-purpose one), because Defendant's alleged tortious comments related to a controversy between her and Plaintiff, which was not a controversy the outcome of which "affects the general public or some identifiable segment of the public in an appreciable way." As the Court has determined no public controversy exists, it necessarily concludes in turn that Plaintiff is not a limited-purpose public figure without needing to proceed to the second step of considering Plaintiff's level of involvement in the (non-public) controversy at issue.

The court also concluded that the state anti-SLAPP statute didn't apply in federal court, a question on which federal circuits are split (and on which the Sixth Circuit didn't opine).

Note that trying to induce people to breach binding contracts with a specific person would probably be constitutionally unprotected, as solicitation of illegal (though not criminal) behavior, though the caselaw isn't clear on that. And of course hacking into people's online accounts is illegal and constitutionally unprotected, so inducements of breach of contract that stemmed in part from such hacking would be even more likely to be unprotected.