Supreme Court of New Hampshire.
Helen REMSBURG, Administratrix of the Estate of Amy Lynn Boyer,
v.
DOCUSEARCH, INC., d/b/a Docusearch.Com & a.
No. 2002-255.
Argued Nov. 14, 2002.
Opinion Issued Feb. 18, 2003.
After her daughter was fatally shot at
workplace, mother, as administrator of daughter's estate, brought action in
federal court against Internet-based investigation service and related
defendants which sold daughter's work address to the killer, asserting claims
for wrongful death, invasion of privacy through intrusion upon seclusion,
invasion of privacy through commercial appropriation of private information,
and violation of the New Hampshire Consumer Protection Act. The United States
District Court for the District of New Hampshire, 2002 WL 844403, Barbadoro, C.J., certified questions of law. The Supreme Court, Dalianis, J., held that: (1) investigation service had duty to exercise
reasonable care in disclosing personal information about daughter to client;
(2) daughter's work address was not something secret, secluded or private, and thus disclosure of that
address could not support claim for invasion of privacy by intrusion upon
seclusion; (3) New Hampshire recognizes cause of action for invasion of privacy
by appropriation of individual's name or likeness; (4) mother did not have a
cause of action for appropriation; and (5) investigation service, which
obtained daughter's work address through a pretextual phone call, was subject
to liability for damages under Consumer Protection Act.
Remanded.
West Headnotes
[1] Negligence 
210
[1] Negligence
233
All
persons have a duty to exercise reasonable care not to subject others to an
unreasonable risk of harm.
[2] Negligence 213
[2] Negligence
1692
Whether a
defendant's conduct creates a risk of harm to others sufficiently foreseeable
to charge the defendant with a duty to avoid such conduct is a question of law,
because the existence of a duty does not arise solely from the relationship
between the parties, but also from the need for protection against reasonably
foreseeable harm.
[3] Negligence 210
In some
cases, a party's actions give rise to a duty to exercise reasonable care.
[4] Negligence 213
Parties
owe a duty to those third parties foreseeably endangered by their conduct with respect to those risks whose
likelihood and magnitude make the conduct unreasonably dangerous.
[5] Negligence 220
A private
citizen has no general duty to protect others from the criminal attacks of
third parties.
[6] Negligence 220
The
special circumstances exception to the general rule that private citizen owes
no duty to protect others from criminal conduct includes situations where there
is an especial temptation and opportunity for criminal misconduct brought about
by the defendant; this exception follows from the rule that a party who
realizes or should realize that his conduct has created a condition which
involves an unreasonable risk of harm to another has a duty to exercise
reasonable care to prevent the risk from occurring.
[7] Negligence 220
For a
defendant to have duty to protect another from criminal conduct, the exact
occurrence or precise injuries need not have been foreseeable; rather, where
the defendant's conduct has created an unreasonable risk of criminal misconduct,
a duty is owed to those foreseeably endangered.
[8] Detectives 4
Internet-based
investigation service which sold to client personal information about a third
person, including her work address and social security number, had a duty to
exercise reasonable care in disclosing such information; the risk of criminal
misconduct was sufficiently foreseeable, in light of threats posed by stalking
and identity theft.
[9] Detectives 4
[9] Negligence
220
If a private investigator or information
broker's disclosure of information to a client creates a foreseeable risk of
criminal misconduct against the third person whose information was disclosed,
the investigator or information broker owes a duty to exercise reasonable care
not to subject the third person to an unreasonable risk of harm.
[10] Torts 340
(Formerly 379k8.5(2))
A tort
action for invasion of privacy based upon an intrusion upon seclusion must
relate to something secret, secluded or private pertaining to the plaintiff.
[11] Torts 340
(Formerly 379k8.5(2))
Liability
for invasion of privacy by intrusion upon seclusion exists only if the
defendant's conduct was such that the defendant should have realized that it would be offensive to persons of ordinary
sensibilities; it is only where the intrusion has gone beyond the limits of
decency that liability accrues.
[12] Torts 376
(Formerly 379k28)
Whether
the intrusion would be offensive to persons of ordinary sensibilities, so as to
support claim for invasion of privacy by intrusion upon seclusion, is
ordinarily a question for the fact-finder and only becomes a question of law if
reasonable persons can draw only one conclusion from the evidence.
[13] Torts 340
(Formerly 379k8.5(2))
In making
determination as to whether an intrusion would be offensive to persons of
ordinary sensibilities, so as to support claim for invasion of privacy by
intrusion upon seclusion, the fact-finder should consider the degree of
intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and
objectives, the setting into which he intrudes, and the expectations of those
whose privacy is invaded.
[14] Torts 341
(Formerly 379k8.5(4))
A person
whose social security number is obtained by an investigator from a credit
reporting agency without the person's knowledge or permission may have a cause
of action for intrusion upon seclusion for damages caused by the sale of the
social security number, but must prove that the intrusion was such that it
would have been offensive to a person of ordinary sensibilities.
[15] Torts 341
(Formerly 379k8.5(4))
A work address
that is readily observable by members of the public is not something secret,
secluded, or private, and thus a person does not have a cause of action for
invasion of privacy by intrusion upon seclusion when a private investigator
obtains the person's work address by using a pretextual phone call.
[16] Torts 383
(Formerly 379k8.5(6))
Restatement
(Second) of Torts section, providing that one who appropriates to his own use
or benefit the name or likeness of another is subject to liability to the other
for invasion of his privacy, was adopted.
Restatement
(Second) of Torts § 652C.
[17] Torts 388
(Formerly 379k8.5(6))
The tort
of invasion of privacy by appropriation of an individual's name or likeness
does not protect one's name per se; rather it protects the value associated
with that name. Restatement
(Second) of Torts § 652C.
[18] Torts 387
Appropriation
of an individual's name or likeness is not actionable through tort of invasion
of privacy if the person's name or likeness is published for purposes other
than taking advantage of the person's reputation, prestige or other value
associated with the person. Restatement
(Second) of Torts § 652C.
[19] Torts 387
(Formerly 379k8.5(6))
A person
whose personal information is sold by an investigator does not have a cause of
action against the investigator for invasion of privacy by appropriation of
individual's name or likeness; an investigator who sells personal information
sells the information for the value of the information itself, not to take
advantage of the person's reputation or prestige. Restatement
(Second) of Torts § 652C.
[20] Statutes 176
[20] Statutes
205
On
questions of statutory interpretation, the Supreme Court is the final arbiter
of the intent of the legislature as expressed in the words of a statute
considered as a whole.
[21] Statutes 188
When
interpreting a statute, court begins by considering the plain meaning of the
words of the statute.
[22] Statutes 205
In
conducting statutory analysis, court will focus on the statute as a whole, not
on isolated words or phrases.
[23] Statutes 176
In
construing a statute, court will not consider what the legislature might have
said or add words that the legislature did not include.
[24] Antitrust and Trade Regulation 146(1)
(Formerly 92Hk6 Consumer Protection)
Private
investigator's pretextual phone call, in which investigator obtained the call
recipient's work address by lying about who she was and the purpose of the
call, occurred in the conduct of "trade" or "commerce," so
as to subject investigator to liability under the Consumer Protection Act,
where investigator used the pretextual phone call to complete the sale of
information to client. RSA
358-A:1, 358-A:2.
[25] Antitrust and Trade Regulation 290
(Formerly 92Hk32 Consumer Protection)
Person who
is deceived by a pretextual phone call by an investigator, and discloses personal information to the
investigator, has standing under the Consumer Protection Act to maintain a
private cause of action for damages. RSA
358-A:10.
[26] Antitrust and Trade Regulation 292
(Formerly 92Hk32 Consumer Protection)
Section
defining who may bring a private cause of action under the Consumer Protection
Act does not limit the class of persons who have standing to those in privity
with defendant. RSA
358-A:10.
**1004 *150 Gottesman and Hollis,
P.A., of Nashua (David
A. Gottesman and
Anna
Barbara Hantz on the brief, and Mr. Gottesman
orally), for the plaintiff.
Getman, Stacey, Tamposi, Schulthess &
Steere, PA, of Bedford (Andrew
R. Schulman and Dona
Feeney on the brief, and Mr. Schulman orally),
for defendants Docusearch Inc., Wing and a Prayer, Inc. and Daniel
Cohn.
Law Office of Hess & Fraas, of Bow (Carol
L. Hess on the brief), for defendant Kenneth
Zeiss.
Sichenzia Ross Friedman & Ference, of New York,
New York (Steven
B. Ross on the brief), and Brennan Caron Lenehan
& Iacopino, of Manchester (Michael J.
Iacopino on the brief and orally), for defendant
Michele Gambino.
Chris J. Hoofnagle & a., of Washington,
D.C., by brief, for the Electronic Privacy Information Center, as amicus
curiae.
Scott
H. Harris, of Manchester, by brief, for the New
Hampshire Trial Lawyers Association, as amicus curiae.
*151 John M. Healy and Jordan G. Ulery,
appearing pursuant to Supreme Court Rule 33(2), by brief, for the New Hampshire
League of Investigators, Inc., as amicus curiae.
DALIANIS, J.
Pursuant to Supreme
Court Rule 34, the United States District Court
for the District of New Hampshire (Barbadoro, C.J.) certified to us the
following questions of law:
1. Under the common
law of New Hampshire and in light of the undisputed facts presented by this
case, does a private investigator or information broker who sells information
to a client pertaining to a third party have a cognizable legal duty to that
third party with respect to the sale of the information?
2. If a private
investigator or information broker obtains a person's social security number
from a credit reporting agency as a part of a credit header without the
person's knowledge or permission and sells the social security number to a client, does the individual whose
social security number was sold have a cause of action for intrusion upon her
seclusion against the private investigator **1005 or information broker
for damages caused by the sale of the information?
3. When a private
investigator or information broker obtains a person's work address by means of
a pretextual telephone call and sells the work address to a client, does the
individual whose work address was deceitfully obtained have a cause of action
for intrusion upon her seclusion against the private investigator or
information broker for damages caused by the sale of the information?
4. If a private
investigator or information broker obtains a social security number from a
credit reporting agency as a part of a credit header, or a work address by
means of a pretextual telephone call, and then sells the information, does the
individual whose social security number or work address was sold have a cause of
action for commercial appropriation against the private investigator or
information broker for damages caused by the sale of the information?
5. If a private
investigator or information broker obtains a person's work address by means of
a pretextual telephone call, and then sells the information, is the private
investigator or information broker liable under N.H.Rev.Stat. Ann. § 358-A to the person it deceived for damages
caused by the sale of the information?
*152 For the reasons expressed below,
we respond to the first, second and fifth questions in the affirmative, and the
third and fourth questions in the negative.
I. Facts
We adopt the district court's recitation of
the facts. Docusearch, Inc. and Wing and
a Prayer, Inc. (WAAP) jointly own and operate an Internet-based investigation
and information service known as Docusearch.com. Daniel Cohn and Kenneth Zeiss
each own 50% of each company's stock.
Cohn serves as president of both companies and Zeiss serves as a
director of WAAP. Cohn is licensed as a
private investigator by both the State of Florida and Palm Beach County,
Florida.
On July 29, 1999, New Hampshire resident Liam
Youens contacted Docusearch through its Internet website and requested the date
of birth for Amy Lynn Boyer, another New Hampshire resident. Youens provided Docusearch his name, New
Hampshire address, and a contact telephone number. He paid the $20 fee by credit card. Zeiss placed a telephone call to Youens in
New Hampshire on the same day. Zeiss
cannot recall the reason for the phone call, but speculates that it was to
verify the order. The next day, July
30, 1999, Docusearch provided Youens with the birth dates for several Amy
Boyers, but none was for the Amy Boyer sought by Youens. In response, Youens e-mailed Docusearch inquiring whether it would be possible to get
better results using Boyer's home address, which he provided. Youens gave Docusearch a different contact
phone number.
Later that same day, Youens again contacted
Docusearch and placed an order for Boyer's social security number (SSN), paying
the $45 fee by credit card. On August
2, 1999, Docusearch obtained Boyer's social security number from a credit reporting
agency as a part of a "credit header" and provided it to Youens. A "credit header" is typically
provided at the top of a credit report and includes a person's name, address
and social security number. The next
day, Youens placed an order with Docusearch for Boyer's employment information,
paying the $109 fee by credit card, and giving Docusearch the same phone number
he had provided originally. Docusearch
phone records indicate that Zeiss placed a phone call to Youens on August 6,
1999. The phone number used was the **1006
one Youens had provided with his follow-up inquiry regarding Boyer's birth
date. The phone call lasted for less
than one minute, and no record exists concerning its topic or whether Zeiss was
able to speak with Youens. On August
20, 1999, having received no response to his latest request, Youens placed a
second request for Boyer's employment information, again paying the $109 fee by
credit card. On September 1, 1999, *153
Docusearch refunded Youens' first payment of $109 because its efforts to
fulfill his first request for Boyer's employment information had failed.
With his second request for Boyer's employment
information pending, Youens placed yet another order for information with
Docusearch on September 6, 1999. This time, he requested a "locate by
social security number" search for Boyer. Youens paid the $30 fee by
credit card, and received the results of the search--Boyer's home address--on
September 7, 1999.
On September 8, 1999, Docusearch informed
Youens of Boyer's employment address.
Docusearch acquired this address through a subcontractor, Michele
Gambino, who had obtained the information by placing a "pretext" telephone
call to Boyer in New Hampshire. Gambino
lied about who she was and the purpose of her call in order to convince Boyer
to reveal her employment information. Gambino had no contact with Youens, nor
did she know why Youens was requesting the information.
On October 15, 1999, Youens drove to Boyer's
workplace and fatally shot her as she left work. Youens then shot and killed himself. A subsequent police investigation revealed
that Youens kept firearms and ammunition in his bedroom, and maintained a
website containing references to stalking and killing Boyer as well as other
information and statements related to violence and killing.
II. Question 1
[1][2][3][4] All persons have a duty to exercise reasonable care not to
subject others to an unreasonable risk of harm. See Walls
v. Oxford Management Co.,
137 N.H. 653, 656, 633 A.2d 103 (1993). Whether a defendant's conduct creates a risk of harm to others
sufficiently foreseeable to charge the defendant with a duty to avoid such
conduct is a question of law, Iannelli
v. Burger King Corp.,
145 N.H. 190, 193, 761 A.2d 417 (2000), because
"the existence of a duty does not arise solely from the relationship
between the parties, but also from the need for protection against reasonably
foreseeable harm." Hungerford
v. Jones,
143 N.H. 208, 211, 722 A.2d 478 (1998) (quotation
omitted). Thus, in some cases, a
party's actions give rise to a duty. Walls,
137 N.H. at 656, 633 A.2d 103. Parties owe a duty to those third parties
foreseeably endangered by their conduct with respect to those risks whose
likelihood and magnitude make the conduct unreasonably dangerous. Hungerford,
143 N.H. at 211, 722 A.2d 478.
[5] In situations in which the harm is caused by criminal
misconduct, however, determining whether a duty exists is complicated by the
competing rule "that a private citizen has no general duty to protect
others from the criminal attacks of third parties." Dupont
v. Aavid Thermal Technologies,
147 N.H. 706, 709, 798 A.2d 587 (2002). This rule is grounded in the *154
fundamental unfairness of holding private citizens responsible for the
unanticipated criminal acts of third parties, because "[u]nder all
ordinary and normal circumstances, in the absence of any reason to expect the
contrary, the actor may reasonably proceed upon the assumption that others will
obey the law." Walls,
137 N.H. at 657-58, 633 A.2d 103 (quotation
omitted).
[6][7] **1007 In
certain limited circumstances, however, we have recognized that there are
exceptions to the general rule where a duty to exercise reasonable care will
arise. See Dupont,
147 N.H. at 709, 798 A.2d 587. We have held that such a duty may arise
because: (1) a special relationship
exists; (2) special circumstances
exist; or (3) the duty has been
voluntarily assumed. Id.. The special circumstances exception includes
situations where there is "an especial temptation and opportunity for
criminal misconduct brought about by the defendant." Walls,
137 N.H. at 658, 633 A.2d 103 (quotation
omitted). This exception follows from
the rule that a party who realizes or should realize that his conduct has
created a condition which involves an unreasonable risk of harm to another has
a duty to exercise reasonable care to prevent the risk from occurring. Id.
The exact occurrence or precise injuries need not have been
foreseeable. Iannelli,
145 N.H. at 194, 761 A.2d 417. Rather, where the defendant's conduct has
created an unreasonable risk of criminal misconduct, a duty is owed to those
foreseeably endangered. See id.
[8][9] Thus, if a private investigator or information
broker's (hereinafter
"investigator" collectively) disclosure of information to a client
creates a foreseeable risk of criminal misconduct against the third person
whose information was disclosed, the investigator owes a duty to exercise
reasonable care not to subject the third person to an unreasonable risk of harm.
In determining whether the risk of criminal misconduct is foreseeable to
an investigator, we examine two risks of information disclosure implicated by
this case: stalking and identity theft.
It is undisputed that stalkers, in seeking to
locate and track a victim, sometimes use an investigator to obtain personal
information about the victims. See
Note, Stalking
Humans: Is There A Need For
Federalization Of Anti-Stalking Laws In Order To Prevent Recidivism In
Stalking?,
50 Syracuse L.Rev. 1067, 1075 (2000) (discussing
two high profile California cases where the stalkers used investigators to
obtain their victims' home addresses).
Public concern about stalking has compelled
all fifty States to pass some form of legislation criminalizing stalking. Approximately one million women and 371,000
men are stalked annually in the United States.
P. Tjaden & N. Thoennes, Nat'l Inst. of Justice Ctr. for Disease
Control and Prevention, Stalking in America:
Findings from the National Violence Against Women Survey, Apr. 1998,
at 2. Stalking is a crime that causes *155
serious psychological harm to the victims, and often results in the victim
experiencing post-traumatic stress disorder, anxiety, sleeplessness, and
sometimes, suicidal ideations. See
Mullen & Pathe, Stalking,
29 Crime & Just. 273, 296-97 (2002). Not only is stalking itself a crime, but it
can lead to more violent crimes, including assault, rape or homicide. See, e.g., Brunner
v. State,
683 So.2d 1129, 1130 (Fla.Dist.Ct.App.1996); People
v. Sowewimo,
276 Ill.App.3d
330, 212 Ill.Dec. 702, 657 N.E.2d 1047, 1049 (1995); Com.
v. Cruz,
424 Mass. 207, 675 N.E.2d 764, 765 (1997).
Identity theft, i.e., the use of one
person's identity by another, is an increasingly common risk associated with
the disclosure of personal information, such as a SSN. Komuves, We've
Got Your Number: An Overview of
Legislation and Decisions to Control the Use of Social Security Numbers as
Personal Identifiers,
16 J. Marshall J. Computer & Info. L. 529, 534 (1998). A person's SSN has
attained the status of a quasi-universal personal identification number. Id.
at 531-32.
At the same time, however, a person's privacy interest in his or her SSN
is recognized by state and federal statutes, including **1008RSA 260:14, IV-a
(Supp.2002) which prohibits the release of SSNs contained within drivers'
license records. See also
Financial Services Modernization Act of 1999, 15
U.S.C. § § 6801-6809
(2000);
Privacy Act of 1974, 5
U.S.C. § 552a (2000). "[A]rmed with
one's SSN, an unscrupulous individual could obtain a person's welfare benefits
or Social Security benefits, order new checks at a new address on that person's
checking account, obtain credit cards, or even obtain the person's
paycheck." Greidinger
v. Davis,
988 F.2d 1344, 1353 (4th Cir.1993).
Like the consequences of stalking, the
consequences of identity theft can be severe.
The best estimates place the number of victims in excess of 100,000 per
year and the dollar loss in excess of $2 billion per year. LoPucki, Human
Identification Theory and the Identity Theft Problem,
80 Tex. L.Rev. 89, 89 (2001). Victims of identity theft risk the
destruction of their good credit histories.
This often destroys a victim's ability to obtain credit from any source
and may, in some cases, render the victim unemployable or even cause the victim
to be incarcerated. Id. at 91.
The threats posed by stalking and identity
theft lead us to conclude that the risk of criminal misconduct is sufficiently
foreseeable so that an investigator has a duty to exercise reasonable care in
disclosing a third person's personal information to a client. And we so hold. This is especially true when, as in this
case, the investigator does not know the client or the client's purpose in
seeking the information.
*156 III. Questions 2 and 3
[10][11] A tort action based upon an intrusion upon seclusion must
relate to something secret, secluded or private pertaining to the plaintiff. Fischer
v. Hooper,
143 N.H. 585, 590, 732 A.2d 396 (1999). Moreover, liability exists only if the
defendant's conduct was such that the defendant should have realized that it
would be offensive to persons of ordinary sensibilities. Id.
"It is only where the intrusion has gone beyond the limits of
decency that liability accrues." Hamberger
v. Eastman,
106 N.H. 107, 111, 206 A.2d 239 (1964) (quotation
omitted); see Restatement
(Second) of Torts
§ 652B
comment d at 380 (1977).
In
addressing whether a person's SSN is something secret, secluded or private, we
must determine whether a person has a reasonable expectation of privacy in the
number. See Fischer,
143 N.H. at 589-90, 732 A.2d 396. SSNs are available in a wide variety of
contexts. Bodah
v. Lakeville Motor Express Inc.,
649 N.W.2d 859, 863 (Minn.Ct.App.2002). SSNs are used to identify people to track
social security benefits, as well as when taxes and credit applications are
filed. See Greidinger,
988 F.2d at 1352-53. In fact, "the widespread use of SSNs as
universal identifiers in the public and private sectors is one of the most
serious manifestations of privacy concerns in the Nation." Id.
at 1353 (quotation omitted). As noted above, a person's interest in
maintaining the privacy of his or her SSN has been recognized by numerous
federal and state statutes. As a result,
the entities to which this information is disclosed and their employees are
bound by legal, and, perhaps, contractual constraints to hold SSNs in
confidence to ensure that they remain private.
See
Bodah, 649 N.W.2d at 863. Thus, while a SSN must be disclosed in
certain circumstances, a person may reasonably expect that the number will
remain private.
[12][13][14] Whether the intrusion would be offensive to persons of
ordinary sensibilities is ordinarily a question for the fact-finder and only
becomes a question of law if reasonable persons can draw only one conclusion
from the evidence. See Swarthout
v. Mutual Service Life Ins. Co.,
632 N.W.2d 741, 745 (Minn.Ct.App.2001). The evidence underlying the certified
question **1009 is insufficient to draw any such conclusion here, and we
therefore must leave this question to the fact-finder. In making this determination, the
fact-finder should consider "the degree of intrusion, the context, conduct
and circumstances surrounding the intrusion as well as the intruder's motives
and objectives, the setting into which he intrudes, and the expectations of
those whose privacy is invaded." Bauer
v. Ford Motor Credit Co.,
149 F.Supp.2d 1106, 1109 (D.Minn.2001). Accordingly, a person whose SSN is obtained
by an investigator from a credit reporting *157 agency without the
person's knowledge or permission may have a cause of action for intrusion upon
seclusion for damages caused by the sale of the SSN, but must prove that the
intrusion was such that it would have been offensive to a person of ordinary
sensibilities.
[15] We next address whether a person has a cause of action for
intrusion upon seclusion where an investigator obtains the person's work
address by using a pretextual phone call.
We must first establish whether a work address is something secret,
secluded or private about the plaintiff.
See Fischer,
143 N.H. at 590, 732 A.2d 396.
In most cases, a person works in a public
place. "On the public street, or in
any other public place, [a person] has no legal right to be alone." W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 117, at
855 (5th ed.1984).
A person's employment, where he lives, and where he works
are exposures which we all must suffer.
We have no reasonable expectation of privacy as to our identity or as to
where we live or work. Our commuting to
and from where we live and work is not done clandestinely and each place
provides a facet of our total identity.
Webb
v. City of Shreveport,
371 So.2d 316, 319 (La.Ct.App.1979). Thus, where a person's work address is
readily observable by members of the public, the address cannot be private and
no intrusion upon seclusion action can be maintained.
IV. Question 4
[16][17][18] "One who appropriates to his own use or benefit the
name or likeness of another is subject to liability to the other for invasion
of his privacy." Restatement
(Second) of Torts
§ 652C at 380. In Hamberger, we noted
that the law of invasion of privacy consists of four separate causes of action,
including appropriation. Hamberger,
106 N.H. at 110-11, 206 A.2d 239. However, we have not had occasion to
recognize appropriation as a cause of action within the State. We now hold that New Hampshire recognizes
the tort of invasion of privacy by appropriation of an individual's name or
likeness, and adopt the Restatement view. "The interest protected by the rule ...
is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his
name or likeness, and in so far as the use may be of benefit to him or to
others." Restatement
(Second) of Torts
§ 652C
comment a at 381.
Tortious liability for appropriation of a name or likeness
is intended to protect the value of an individual's notoriety or skill. *158 Thus, the Restatement
notes, in order that there may be liability under the rule stated in this
Section, the defendant must have appropriated to his own use or benefit the
reputation, prestige, social or commercial standing, public interest or other
values of the plaintiff's name or likeness.
The misappropriation tort does not protect one's name per se; rather it protects the value associated with
that name.
Matthews
v. Wozencraft,
15 F.3d 432, 437 (5th Cir.1994) (citation,
brackets and quotation omitted).
Appropriation is not actionable if the person's name or likeness is **1010
published for "purposes other than taking advantage of [the person's]
reputation, prestige or other value" associated with the person. Restatement
(Second) of Torts
§ 652C
comment d at 382- 83. Thus,
appropriation occurs most often when the person's name or likeness is used to
advertise the defendant's product or when the defendant impersonates the person
for gain. Matthews,
15 F.3d at 437;
see Restatement
(Second) of Torts
§ 652C
comment b at 381.
[19] An investigator who sells personal information sells the information for the value of the information
itself, not to take advantage of the person's reputation or prestige. The investigator does not capitalize upon
the goodwill value associated with the information but rather upon the client's
willingness to pay for the information.
In other words, the benefit derived from the sale in no way relates to
the social or commercial standing of the person whose information is sold. Thus, a person whose personal information is
sold does not have a cause of action for appropriation against the investigator
who sold the information.
V. Question 5
[20][21][22][23] The last issue relates to the construction of the Consumer
Protection Act, RSA chapter 358-A.
"On questions of statutory interpretation, this court is the final
arbiter of the intent of the legislature as expressed in the words of a statute
considered as a whole." Franklin
Lodge of Elks v. Marcoux,
147 N.H. 95, 96, 782 A.2d 907 (2001) (quotation
omitted). We begin by considering the
plain meaning of the words of the statute.
Snow
v. American Morgan Horse Assoc.,
141 N.H. 467, 471, 686 A.2d 1168 (1996). In conducting our analysis "we will
focus on the statute as a whole, not on isolated words or phrases." Id.
"[W]e will not consider what the legislature might have said or add
words that the legislature did not include." Minuteman,
LLC v. Microsoft Corp.,
147 N.H. 634, 636, 795 A.2d 833 (2002) (quotation
omitted).
RSA
358-A:2 (1995) states, in pertinent part:
*159
It shall be unlawful for any person to use ... any unfair or deceptive act or
practice in the conduct of any trade or commerce within this state. Such ... unfair or deceptive act or practice
shall include, but is not limited to, the following:
...
III. Causing
likelihood of confusion or of misunderstanding as to affiliation, connection or
association with ... another.
Pretext phone calling has been described as
the use of deception and trickery to obtain a person's private information for
resale to others. See Com.
v. Source One Associates, Inc.,
436 Mass. 118, 763 N.E.2d 42, 47-48, n. 8 (2002).
The target of the phone call is deceived into believing that the caller is
affiliated with a reliable entity who has a legitimate purpose in requesting
the information. RSA
358-A:2, III explicitly prohibits this conduct.
The pretext clearly creates a misunderstanding as to the investigator's
affiliation.
[24] The defendant argues that our holding in Snow bars recovery
in cases such as this because an investigator who makes a pretextual phone call
to obtain information for sale does not conduct any "trade" or
"commerce" with the person deceived by the phone call. The Consumer Protection Act defines
"trade" and "commerce" as including "the advertising,
offering for sale, sale, or distribution of
any services and any property...." RSA
358-A:1, II. There is no language in the Act that
would restrict the definition of "trade" and "commerce" to
that affecting **1011 the party deceived by the prohibited conduct. In fact, the Act explicitly includes
"trade or commerce directly or indirectly affecting the people of
this state." Id. (emphasis added). In Snow, we held
that the registering of foals, alone, was not a transaction involving trade or
commerce. Snow,
141 N.H. at 471, 686 A.2d 1168. Such is not the case here. Here, the investigator used the pretext
phone call to complete the sale of information to a client. Thus, the investigator's pretextual phone
call occurred in the conduct of trade or commerce within the State.
[25][26] The defendant argues that a person deceived by a
pretextual phone call lacks standing to maintain a private cause of action
under RSA chapter 358-A because only a buyer or seller in privity with the
defendant may recover under the statute.
We disagree. According to the
statute, "[a]ny person injured by another's use of any method, act
or practice declared unlawful under this chapter may bring an action for
damages...." RSA
358-A:10 (emphasis added). The statute defines who may bring a private
action broadly, Milford
Lumber Co. v. RCB Realty,
147 N.H. 15, 17, 780 A.2d 1259 (2001), *160
and by its plain meaning does not limit the class of persons who have standing
to those in privity with the defendant.
We
find support for this conclusion in the Massachusetts Consumer Protection Act,
which is similar in many respects to the New Hampshire statute. See Milford
Lumber Co., 147 N.H. at 18, 780 A.2d 1259; see also Mass. Gen. Laws ch. 93A (1997).
When the Massachusetts Consumer Protection Act was amended in 1979,
section 9 was changed to permit "any person" (other than commercial
entities covered under a separate section) to recover for damages, which
"substantially broadened the class of persons who could maintain actions
under [the statute]." Van
Dyke v. St. Paul Fire and Marine Ins. Co.,
388 Mass. 671, 448 N.E.2d 357, 360 (1983). Consequently, Massachusetts courts have
permitted third parties who were not in privity with the defendant to recover
for damages caused by the defendant's violation of the statute. Maillet
v. ATF-Davidson Co., Inc.,
407 Mass. 185, 552 N.E.2d 95, 99 (1990); see also Ellis
v. Safety Ins. Co.,
41 Mass.App.Ct. 630, 672 N.E.2d 979, 985-86, n. 13 (1996) (permitting the housemates of an insurance policyholder to
maintain an action claiming racial harassment during an insurance investigation
despite lack of privity).
Accordingly, we conclude that an investigator
who obtains a person's work address by means of pretextual phone calling, and
then sells the information, may be liable for damages under RSA chapter 358-A
to the person deceived.
Remanded.
NADEAU and DUGGAN, JJ., concurred.
149 N.H. 148, 816 A.2d 1001
END OF
DOCUMENT