Civil Liability for Showing Some Friends "Unflattering" Nonconsensual Nude Photo of Ex

From Thibaudeau v. Reis, decided Wednesday by Massachusetts Appeals Court Justices Kenneth Desmond, Maureen Walsh & Robert Toone:

[1.] The conduct forming the basis of the plaintiff's claim for intentional infliction of emotional distress was the defendant's non-consensual acts of sharing an unflattering nude photograph of the plaintiff and surreptitiously accessing the plaintiff's personal email, Google, and Facebook accounts.

At trial, the defendant testified that she took the nude photograph of the plaintiff (photo) on her cell phone when she and the plaintiff were living together as a couple and that they both laughed at the photo because it was unflattering. The defendant further stated that she only showed the photograph to her friend, Amy Gallinelli, while they were sitting alone at a public bar after she and the plaintiff had broken up. She testified that the purpose of showing Gallinelli the photo was to confide in her and to have a laugh.

The defendant also admitted that she sent Gallinelli an electronic copy of the photo on multiple occasions. On one of these occasions, the defendant decided to send Gallinelli the photo to "cheer her up" after Gallinelli had experienced a breakup of her own, and to express the sentiment that "it could be worse." On another occasion, the defendant testified that she set the nude photo as the plaintiff's contact picture on her cell phone and then shared the contact profile with Gallinelli. The defendant could not recall whether she told Gallinelli not to share the photo with anyone else but felt like they had an "unspoken" agreement that her friend would not share the photo with others.

The defendant also readily admitted that she accessed the plaintiff's email, Facebook, and Google accounts without his permission. In so doing, the defendant read the plaintiff's emails and private messages on Facebook, operated his Facebook account, and viewed and deleted some of his photos.

In fact, the defendant sent one text message to Gallinelli detailing her use of the plaintiff's Facebook account to "unblock herself," and sent another text to Gallinelli stating "[h]e [the plaintiff] finally realized that I had accessed his google accounts though because he changed his password. And now I can't get in[to] his email, photos, etc." She subsequently remarked that "it was about time he [the plaintiff] noticed" that she had access to his accounts because she deleted some of the plaintiff's personal photos "weeks ago."

Contrary to the defendant's testimony, Gallinelli testified that the defendant first showed her the photo at Gallinelli's home and then showed the photo again to herself and a group of four or five mutual friends when they were at a local bar. Gallinelli also testified that the photo was shared with multiple people at Gallinelli's home during social gatherings.

Gallinelli further testified that she told other friends that she had a copy of the photograph, and that "everybody knew about it," referring to her mutual friend group with the plaintiff. Additionally, although Gallinelli is unsure whether she told anyone that the defendant had access to the plaintiff's online accounts, Gallinelli did confront at least one of the plaintiff's mutual friends about certain Facebook messages on the plaintiff's account that the defendant shared with her.

The plaintiff's friend, Brian Correria, testified that he learned about the existence of the photo from his girlfriend, who is in the same social circle as the defendant, and immediately notified the plaintiff. Correria stated that after learning about the photo, the plaintiff began to socialize less frequently. Likewise, the plaintiff testified that due to the photo being shared and the defendant's interference with his online accounts, he tended to "stay away as much as possible" from local social gatherings and has experienced considerable mental anguish and difficulty sleeping.

The plaintiff expressed concern about the defendant's actions affecting his employment due to the possibility that the defendant might still possess and share his personal information or other photos. The plaintiff further stated that he has no recollection of the photo being taken and did not give the defendant permission to take the photo.

[2.] To prevail on a claim for intentional infliction of emotional distress, a plaintiff must show

"(1) that the defendant intended to cause, or should have known that [their] conduct would cause, emotional distress; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's conduct caused the plaintiff's distress; and (4) that the plaintiff suffered severe distress. To be considered extreme and outrageous, the defendant's conduct must be beyond all bounds of decency and … utterly intolerable in a civilized community. Liability cannot be founded upon mere insults, threats, or annoyances." …

[W]e must only consider "whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [prevailing party]." Weighing the evidence and assessing the credibility of witnesses are matters for the trial judge that we do not engage in on appellate review.

Here, the judge could reasonably conclude from the totality of the evidence that the defendant should have at least known that her decision to share an unflattering nude photograph of the plaintiff with multiple people in their small community and to access the plaintiff's online accounts and personal photos without his permission would cause him emotional distress. Additionally, sharing an explicit photograph of another person without their consent is the type of conduct that has been recognized as "extreme and outrageous." Finally, given the uncontroverted testimony regarding the plaintiff's mental anguish leading him, inter alia, to avoid socializing in his hometown, the judge's determination that the defendant's conduct caused the plaintiff severe emotional distress was reasonable and supported by the record….