As many of you have probably heard, a Duke University student named Karen Owens put out her “unofficial” thesis on “Excelling in the Realm of Horizontal Academics.”  This was basically a list of the 13 different male students Owens slept with, their rankings based on their physical attributes, sexual prowess, and other factors like aggressiveness and sense of humor.  She even created several different graphs!  So what is the problem with this? Other than the fact that she looks less than stellar, that (most) of the guys probably suffered some humiliation (depending on their rankings), and that Owens has probably set herself up for a nice marketing position (there are rumors she has a book deal in the works), she may have violated the students privacy rights.

Can She Be Sued?

The answer is far from clear.  Several years ago Jessica Cutler, a former Hill Aide, posted a blog about her sexual exploits with staffers and members of our capitol.  She received a fairly lucrative book deal, but was sued for invasion of privacy and infliction of emotional distress. The suits settled last year, but there hasn’t been much of a report about them.  Here, the Duke athletes could have a similar claim even though their images were sometimes blurred out (there are several sites with their pictures). The athletes would first have to show an invasion of privacy before they could have a serious claim to infliction of emotional distress (in which they would have to show Owens acted intentionally or recklessly, that her conduct was extreme, that she caused them distress and that the athletes are suffering some type of severe emotional distress from the incident).

Invasion of Privacy

In The United States there are laws protecting a person’s privacy.  This includes publicly disclosing private facts about the plaintiff, appropriating (using) the plaintiff’s identity for the defendant’s benefit, placing the plaintiff in a false light in the public eye, and unreasonably intruding upon the seclusion or solitude of the plaintiff.

Here, the players are most likely private figures since they were just college students, although there is some argument that they are minor celebrities since most were athletes at a top college.  Assuming they are private figures, their best claim would probably be a public disclosure of private facts.  This is defined as “public disclosure of private facts arising when one person reveals information which is not of public concern and the release of which would offend a reasonable person.  This includes disclosure of private facts of little-known, private facts through widespread dissemination.  Here, the ranking of how each athlete was in their “horizontal academics” is probably a fairly private fact.  This is especially true when she describes parts of their anatomy.

False Light

The athletes may also have a claim under a false light theory (depending on if this information is false or misleading).  The elements for false light vary depending on the jurisdiction, but usually include a publication by the Defendant about the Plaintiff, that it was made with malice (meaning a bad intention) placing the Plaintiff in a false light and that it was be highly offensive (i.e. embarrassing to a reasonable person).  Here, there would need to be some untruth about what was published.  Assuming there is, the athletes would have to show that Owens acted with malice in publishing these details.  From the facts we have, she just sent it to a few friends and didn’t mean to poke fun at the athletes.  The only element that seems to be satisfied is that the information is probably highly offensive based on its embarrassing details.

So what do you think, should the athletes have a right to sue? Is this total gender equality?  Is Owens going to get a big book deal?

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