Opinions, January 21, 2016: Revenge Pornography

The Fourteenth Court of Appeals released its published opinion in Patel v. Hussain, No. 14-14-00459-CV this morning. As a revenge pornography case, it’s not strictly a family law case, but it does concern personal matters that unfortunately can arise in a relationship and break up, particularly in the age of the internet. The court’s opinion does not shy from including the disturbing details that led to the award against Appellant Akhil Patel (“Patel”).

After trial, the jury found for the Appellee Nadia Hussain (“Hussain”) on her claims of intentional infliction of emotional distress, intrusion on seclusion, public disclosure of private facts, and defamation. The jury awarded damages totaling $500,000.00, including past and future mental anguish damages, past and present future reputation damages, and exemplary damages. Patel appealed, arguing six issues, two of which were sustained, resulting in the judgment being reduced to $345,000.00.

Patel and Hussain had a lengthy, “on-and-off” relationship before they broke up. During the relationship, Hussain sent Patel images of herself topless and, during Skype sessions, made explicit videos. Hussain asked Patel to delete the images but he did not. She also did not consent to being recorded during the Skype sessions.

After they broke up, Patel continued to try to contact Hussain despite her asking him not to. Hussain’s mother even told Patel to stop contacting her in December 2010. Beginning in July 2011, Patel sent Hussain dozens of unanswered text messages that are aggressive, threatening, and profane. Many of them are reprinted in the opinion. It’s nothing a seasoned family law lawyer hasn’t seen before, but it’s still disturbing.

Despite Hussain repeatedly asking to be left alone, Patel continued through the fall of 2011 to email and text her and threaten retaliation, including threatening to send the pictures to Hussain’s mother and grandparents. Hussain lived with her mother and grandparents at the time and her mother testified that Patel would prank call the house multiple times per day at all hours for several years. They would leave the phone off the hook at night and block his calls. Hussain changed her cell phone number several times but Patel kept discovering it and contacting her.

In March 2012, police officers told Patel to stop contacting her but he did not.

Then, Patel posted the videos to the internet and continued texting her from March 2012 through August 2012, updating Hussain on the number of views and downloads the video had. The trial court admitted print-outs from a pornographic website showing Hussain’s videos under a title which identified her by her first name, nationality, and city.

In November 2012, Patel changed Hussain’s Apple ID password. He continued to text through March 2013. In February 2013, Hussain received multiple texts from Verizon indicating her password had been reset, but she had not reset it. She testified that she got constant messages that her passwords were changed.  She changed her cell phone settings so that the password could not be changed unless she went to a Verizon store and presented identification. She also received notifications from credit card companies that she had opened an account that she had not opened.

Hussain sued in March 2013. She stopped receiving the communications from Patel and the password-reset notifications at that time.

Hussain testified to her mental anguish, that when Patel told her he had her videos, she felt devastated and horrified. She testified that she was scared of Patel, that since the videos were posted she was humiliated and traumatized. She moved out of her home with her family because she felt like a liability to them and moved into an apartment with burglar bars and never opened the blinds. She felt she had no privacy and could not escape Patel.

However, she testified that she had “not really” seen a therapist for her mental anguish, but she saw a “licensed professional” a couple of time before trial. She testified she missed about five days of work because of the ordeal. Her mother testified that she would hear Hussain crying and screaming on the phone and that when she approached her, Hussain was shaking. Because of Patel’s threats, Hussain’s mother was in fear for Hussain’s life and testified that Hussain’s confidence was severely damaged because of Patel’s actions.

One of Hussain’s friends testified that Hussain had changed a lot because of the situation, that she was afraid to be by herself, did not feel safe in her own home, looked nervous all the time, used to be more involved in her church community but had since become less involved. The friend also testified that all their mutual friends were talking about the video and that the video damaged her reputation in their community.

Another friend also testified that Hussain stayed with her a few nights because Hussain was scared to go home and scared that Patel would know where she was. She also asked to park her car in the friend’s garage so Patel would not know where she was. This friend also testified that she had become far less social.

Though a couple of Hussain’s co-workers testified to her frightened and distressed state of mind, Patel presented evidence (hundreds of pictures from social media) that, after the video was posted to the internet, she continued to go on trips, attended concerts, and hung out with friends.

The jury found for Hussain on her claims and the trial court signed the final judgment for $500,000. After denying Patel’s motions for JNOV and new trial, Patel appealed.

In his first issue, Patel contended the trial court erred by awarding damages on Hussain’s defamation claim because the jury found that the published material was substantially true. The Court of Appeals sustained Patel’s issue and held the trial court erred by denying Patel’s motion for JNOV on this ground. The trial court, the COA said, should have disregarded the jury’s $50,000 finding on the defamation claim in light of its finding that the material published was “substantially true.”

In his second issue, Patel argued “the jury’s finding or quadruple recovery for all four theories of liability” was erroneous and violated the “one-satisfaction” rule. The COA disagreed, finding Patel did not preserve the supposed error because he did not mention the one-satisfaction rule or the election of remedies in his motion for new trial or motion for JNOV.

In his third issue, Patel argued the trial court erred by not granting his motion for JNOV on the IIED claim because his conduct invaded Hussain’s legally protected privacy interest under her claims for intrusion on seclusion and public disclosure of private facts. The COA agreed. IIED is a “gap-filler tort, judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has  no other recognized theory of redress.” In other words, IIED permits recovery if the plaintiff doesn’t have any other avenue of relief.

Hussain argued that IIED applied because Patel intended to invade a right that was not legally protected and that Patel engaged in numerous and extreme and outrageous acts that were not actionable under any other theory of recovery. In support, the COA noted that Hussain cited a single example: when Patel threatened to play the video during a mutual friend’s wedding. The COA found this particular threat fell within Hussain’s claim for intrusion on seclusion. As such, Hussain was not entitled to recover on her IIED claim as a matter of law and the trial court erred by not granting Patel’s motion for JNOV on the IIED claim.

In his fourth and fifth issues, Patel challenged the legal and factual sufficiency of the evidence to support the jury’s findings of mental anguish damages. The COA reviewed the record in excoriating detail and, no surprise, denied the challenges, upholding the awards of $107,500 for past mental anguish and $107,500 for future mental anguish on Hussain’s invasion of privacy claims. The COA noted that “the nature of the invasions of privacy here are particularly disturbing and shocking and should give rise to an inference of mental anguish resulting from the threats to Nadia’s reputation.” It is beyond me how Patel made these sufficiency challenges with a straight face.

In his sixth and final issue, Patel contended the award of exemplary damages must be reversed because there was no evidence of mental anguish. Of course, the COA overruled this issue.

The COA reduced the judgment to $345,000 from $500,000 based on the above, but otherwise affirmed the judgment as modified.

This is a disturbing case, but there is at least a little comfort in that the right result was ultimately reached, though I am sorry the COA reduced the jury’s award.