The Volokh Conspiracy
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Posting Video of 10-Year-Old Hockey Player's "Tantrum" Isn't Intentional Infliction of Emotional Distress
In Mufarreh v. Google, Inc., decided Friday by the Illinois Appellate Court (Justice Raymond Mitchell, joined by Justices Sharon Oden-Johnson and Thaddeus Wilson), a 10-year-old hockey player and his parents sued an anonymous video poster, and sought to discover the poster's name:
[I]n a competitive youth hockey game[,] Mufarreh missed the final penalty shot, losing the game, and had a severe emotional response on the ice. Among other things, he screamed, threw his hockey stick, gloves, and helmet, and fell to the ground.
On November 2, 2023, YouTube user FunnyIllinoisHockey uploaded a compilation video of Mufarreh's emotional episode. The video, entitled "TI Tantrum," was set to the song "Tantrum" by Madeline The Person. The video was two minutes and forty-four seconds in length and tracked Mufarreh's movements around the ice, zooming in on him as he broke down.
According to the petition, between November 2023 and April 2024, every time petitioners sought to have the video taken down, it would reappear. The video spread widely throughout the small youth hockey community. Mufarreh alleged that he suffered from restless sleep and anxiety attacks and was humiliated, mocked, and socially ostracized. His parents also alleged that they endured sleepless nights, psychological distress, and a strain on their marriage.
Petitioners alleged that the video was repeatedly republished "purely to humiliate, isolate, and psychologically destroy" them. Petitioners also alleged that, based on information and belief, the anonymous account belonged to a 23-year-old coach from a rival hockey team who was using the video to recruit kids for his team and keep them away from Mufarreh's team.
Petitioners sought to compel respondents Google and YouTube to disclose the identity of the user who posted the video so they could sue the user for defamation, infringement on the right of publicity, and intentional infliction of emotional distress. Respondents informed the user of the litigation, and he appeared as John Doe, an interested party….
[T]he circuit court dismissed petitioners' claims for defamation and infringement on the right of publicity with prejudice. The circuit court also dismissed the [parents'] intentional infliction of emotional distress claims but allowed petitioners to proceed on the son's claim. Accordingly, the circuit court ordered respondents to turn over Doe's identity….
The court reversed, concluding that, as a matter of law, Doe's behavior as alleged by the plaintiffs didn't constitute intentional infliction of emotional distress:
"[T]o state a cause of action for intentional infliction of emotional distress, a plaintiff must adequately allege that: (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended to inflict severe emotional distress or knew that there was a high probability that its conduct would do so; and (3) the defendant's conduct actually caused severe emotional distress."
Whether conduct is extreme and outrageous is determined using an objective standard considering the facts and circumstances. "Extreme and outrageous behavior will not be found with mere insults, indignities, threats, annoyances, petty oppressions, or trivialities." "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." The conduct must "be regarded as intolerable in a civilized community." Conduct is extreme and outrageous if "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" …
According to the petition, Doe posted a video to YouTube that depicted Mufarreh having a strong emotional reaction to missing a penalty shot. The video shows Mufarreh having a breakdown on the ice with incidents of screaming, throwing his gear, and falling to the ground. However, the petition also alleged that Mufarreh is a star youth hockey player who regularly competes in high-profile tournaments that "are streamed live with commentary." This suggests Mufarreh was accustomed to playing in games that were public, high stakes, scrutinized, and recorded for online viewers.
Additionally, "Illinois cases in which intentional infliction of emotional distress has been sufficiently alleged have in fact very frequently involved a defendant who stood in a position of power or authority relative to the plaintiff." This situation does not involve any abuse of power over Mufarreh. Petitioners did not allege that Doe abused any position of authority. Rather, Doe posted a video depicting public events. Further, petitioners do not contend that the video was altered or inaccurate.
In other complaints involving media, the extreme and outrageous conduct was far more egregious than the conduct at issue here. See, e.g., Green v. Chicago Tribune Co. (Ill. App. 1996) ("We hold plaintiff stated a cause of action for intentional infliction of emotional distress caused by the Tribune when it barred her from seeing her dead son on December 31 while it photographed him, and when it published the January 1 article featuring her statements to her son and the photograph of him lying dead."); Kolegas v. Heftel Broadcasting Corp. (Ill. 1992) (concluding radio announcers' conduct was sufficiently extreme and outrageous where they broadcast derogatory remarks about plaintiff's wife and child with neurofibromatosis throughout the larger Chicago area and implied they had deformed heads and were hideous). Additionally, the Illinois Supreme Court in Kolegas highlighted that the radio announcers who behaved outrageously "had access to channels of communication," whereas "the plaintiffs had no similar access to the public," so were deprived "of the opportunity to deny or rebut [the] false statements." Due to this communication imbalance, the radio announcers had power over the plaintiffs. The same is not true for petitioners here, who also had access to Doe's channels of communication, the internet, if they wished. There was no power imbalance.
Moreover, while the plaintiffs in Green and Kolegas were identified by name in the respective publications, Mufarreh is not recognizable from the video. The recording is filmed from a distance and is of poor quality, making Mufarreh's face blurry, pixelated, and not clearly depicted. Neither is his name or other identifying information on his jersey visible to the camera. Nothing distinguishes him from the other players on his team.
Ultimately, unless a viewer already knew it was Mufarreh, they would not be able to identify him from the video. Thus, considering the totality of the facts and circumstances, posting the video to YouTube does not go "beyond all possible bounds of decency, such that a reasonable person would hear the facts and be compelled to feelings of resentment and outrage." …
Petitioners also argue that because Mufarreh was a 10-year-old child, he was particularly susceptible to emotional distress. But "peculiar susceptibility unaccompanied by major outrage cannot of itself raise the defendants' conduct to the level of extreme and outrageous." …
Petitioners were also required to show that Doe "either intended that his [ ] conduct should inflict severe emotional distress or knew there was a high probability" that his conduct would do so. However, petitioners alleged that Doe "is using the video as a weapon to recruit kids to his program and keep kids away from Team Illinois." Thus, petitioners alleged Doe's intent was to benefit his team, not to cause Mufarreh severe emotional distress. Elsewhere, petitioners alleged the video was posted "purely to humiliate, isolate, and psychologically destroy the Mufarrehs," but these allegations are conclusory and insufficient on their own.
Likewise, petitioners needed to allege that "the defendant's conduct actually caused severe emotional distress." "To constitute severe distress, the distress inflicted must be so severe that no reasonable man could be expected to endure it; fright, horror, grief, shame, humiliation, worry, etc. alone are not actionable."
Petitioners alleged that Mufarreh "endured persistent psychological torment" and was "terrorized." They alleged that Mufarreh suffered "severe sleep deprivation" due to "repeated nights of restless sleep, haunted by the humiliation and social ostracization caused by the video's relentless circulation." Mufarreh was "emotionally paralyzed," enduring "anxiety attacks" and withdrawing from friends and hockey.
Although petitioners alleged Mufarreh suffered from humiliation and anxiety, "[m]erely characterizing emotional distress as severe is not sufficient." "[T]he plaintiffs generally allege that they suffered anxiety, humiliation, and extreme and severe emotional distress, but the complaint contains no factual allegations from which the level of severity of the emotional distress could be inferred." Without more specificity, petitioners' allegations that Mufarreh endured restless sleep and anxiety attacks are insufficient to meet the heightened pleading standard for intentional infliction of emotional distress….
Allen R. Perl, Bridgette M. Moran, and Christopher M. Goodsnyder (Perl & Goodsnyder, Ltd.) represent Doe.
