Can Publicizing a Person's "Address and Physical Appearance" in Connection with True Allegations of Misconduct Be Actionable?

A federal magistrate judge flags the issue, though doesn't purport to resolve it.

Today's Report and Recommendation by Magistrate Judge Sean Riordan in Davis v. Harrison (E.D. Cal.) discusses a lawsuit that stems from family drama (more details below); plaintiff sued for defamation and for intentional infliction of emotional distress, and then moved for judgment on the pleadings. The report and recommendation concluded that there were factual disputes as to the defamation question (basically, who's telling the truth), and it also concluded that those would affect the IIED claim as well. But it also raised the question whether and when even accurate allegations, coupled with disclosure of personal information about the plaintiff, might constitute IIED:

The Complaint alleges that Defendant's daily efforts to defame and harass Plaintiff online are "so extreme that it exceeds all bounds of decency in a civilized community[.]" It further alleges that Defendant jeopardized Plaintiff's safety by distributing her personal information whenever she made those accusations. Finally, the Complaint asserts that the "emotional, mental, and physical distress" caused by this conduct is amplified by the fact that Plaintiff is trying to process the grief arising from Mr. Shabazz's death.

Defendant's alleged conduct would certainly qualify as outrageous if her statements about Plaintiff and her family are false. But as discussed above, judgment on the pleadings for any defamation claim is improper because the veracity of Defendant's allegations against Plaintiff is in dispute.

Whether daily posts about Plaintiff and her family are extreme and outrageous if Defendant's allegations are true is unclear. Plaintiff cites no case law indicating that prolific social media posting about another individual constitutes IIED where the contents of the posts are substantially true, even if extremely unflattering.

This ambiguity extends to the leaking of Plaintiff's personal information, including her address and physical appearance. There is surprisingly little case law on whether "doxing" an individual can constitute IIED.

One court suggested that doxing, in combination with defamatory content, would be a predicate for IIED. See Lord v. Smith (N.D. Ill. 2022) ("Lord has included a claim for intentional infliction of emotional distress, which is directly tied to the fear he experienced that someone would have both the means and motivation to carry out such threats because of these posts [about sexual misconduct with minors, which revealed Lord's identity and home address]."). [Note that Lord v. Smith said this in the context of discussing personal jurisdiction, not the merits, and the case settled without reaching the merits. -EV]

If Defendant lied about Plaintiff's actions and shared her personal information so others could harass her, as Plaintiff claims, the Court would be comfortable finding such conduct outrageous. However, in light of Defendant's claims that her statements about Plaintiff were true, the Court cannot conclude at this point that the course of Defendant's conduct was outrageous and therefore forms a basis for IIED. Adjudicating the IIED claim will have to await a fact-intensive appraisal of a fully developed record….

And here are the factual allegations:

The Complaint alleges that Iman Shabazz, Plaintiff's older brother, became romantically involved with Defendant. At the time, Mr. Shabazz was living with Plaintiff's eldest sister, Katonya Brittingham, and trying to overcome his problems with drug abuse. Ms. Brittingham believed that Mr. Shabazz and Defendant were using drugs together.

The Complaint further alleges that Mr. Shabazz and Defendant had children together, but that by February 2018 Mr. Shabazz had ended the relationship with Defendant. He then alternated between living with his sister Lorine, friends, and on the streets, before living with his aunt and uncle in Richmond, California. Meanwhile, Defendant filed restraining orders against Mr. Shabazz based on allegations that he wanted to stalk and kill Defendant and their kids. Defendant posted this allegation on social media, where she also accused Mr. Shabazz of tampering with her car in an attempt to harm her. Defendant refused to delete this post even after Plaintiff told her that Mr. Shabazz would never do those things. Defendant then moved their children out of state without Mr. Shabazz's permission and made them fear him so they would not visit him.

In February 2021, Mr. Shabazz suffered a stroke. On April 1, 2021, Plaintiff learned Mr. Shabazz had been hit by a car on the highway and visited him in the hospital. The doctors doubted he would survive, and he was hospitalized for three months.

During this time, Plaintiff's younger brother, Ashante Deaton, was accused of molestation and sexual abuse. [This apparently refers to a criminal felony prosecution in Fresno County, filed in Sept. 2020 but still pending. -EV] Defendant recorded herself falsely telling Mr. Shabazz that Plaintiff was in a molestation ring with Mr. Deaton, and that Plaintiff's family sought to kill Mr. Shabazz. After the hospital prohibited Defendant from visiting Mr. Shabazz, Defendant prohibited Mr. Shabazz from seeing his kids until she was back on the visitors' list. She also spread details of the allegations against Mr. Deaton to Plaintiff's family, trying to blackmail Plaintiff into letting her visit Mr. Shabazz. The Complaint alleges that Defendant sought to manipulate Mr. Shabazz into giving her power of attorney, and to obtain money from him in the process.

Twice in 2021, Plaintiff and Lorine filed claims against Defendant for civil harassment and annoyance. Although the parties settled these cases, the Complaint alleges that Defendant broke any agreements reached thereunder. In February 2022, Defendant was granted temporary conservatorship of Mr. Shabazz before she married him and took him to live with her in Washington state.

The Complaint alleges that Defendant then started two petitions to have Plaintiff arrested based on false allegations that she abused Mr. Shabazz, brainwashed him, kept him from contacting his children, and was involved in a molestation ring with Mr. Deaton. Meanwhile, in Defendant's care, Mr. Shabazz's health declined far more rapidly than during his hospitalization, including through multiple sepsis infections. When Plaintiff called Adult Protective Services (APS), Defendant responded with an angry voicemail telling Plaintiff, inter alia, "you're going to jail, no matter how many times you call."

After Plaintiff blocked Defendant's number, Defendant called Plaintiff from a new one just to say "we got [Plaintiff's brother] K.K. locked up, don't ever call APS on us again." The Complaint alleges that Defendant then posted a recording of this call online in July 2023, the same month that Defendant created new social media accounts to contact Plaintiff's family to repeat her accusations against Plaintiff. Plaintiff eventually learned that on every day that month, Defendant posted screenshots of conversations between them and Plaintiff's personal photos and videos on TikTok, including videos taken of Plaintiff without her consent. These TikTok videos repeated the allegations that Plaintiff abused Mr. Shabazz and took him hostage, adding that Plaintiff would be responsible if he died.

More generally, the Complaint alleges that Defendant has encouraged her online followers to harass Plaintiff on social media. This has forced Plaintiff to limit who can see her content. The false allegations have extended to Plaintiff's husband (who Defendant accused of selling drugs as a school security officer), and Defendant has revealed Plaintiff's address and the names of Plaintiff's children, putting Plaintiff's entire family in danger.