Bostwick v. Christian Oth, Inc., 2012 WL 44065 (N.Y.A.D. 1 Dept. January 10, 2012)
Plaintiff bride logged onto her wedding photographer’s website and saw photos of herself wearing only underwear. She emailed an employee of the photographer, who promised to take the offending photos down. But they remained on the website even after plaintiff shared the online password with her family and friends.
So she sued the photographer for breach of contract, fraud and concealment, and negligent infliction of emotional distress. The trial court threw the case out on summary judgment. Plaintiff sought review, but the appellate court affirmed.
Breach of contract
The court found that defendant was authorized by agreement to post the photos. Defendant owned the copyright in the photos and otherwise had the right to put the proofs online. Any demand by plaintiff that the photos be taken down did not serve to revoke any of defendant’s rights, as plaintiff never had the rights to make such a determination to begin with. Moreover, the court found that because the agreement between the parties had an integration clause which provided that any amendments had to be in writing, the subsequent communications between plaintiff and defendant’s employee did not serve to amend the contract. (This decision by the court is puzzling, as the communications about taking the photos down were apparently by email. Other New York courts have held emails sufficient to amend written contracts.)
Fraud and concealment
To have been successful on her fraud and concealment claim, plaintiff was required to show, among other things, that she reasonably relied on defendant’s statement that the underwear photos had been taken offline before she gave the password to her friends and family. The court found in favor of defendant on this point because plaintiff could have checked to see whether the photos were actually taken down before she allowed others to access the photos. What’s more, the court found that the failure to take the photos down was not “concealment” but merely an oversight.
Negligent infliction of emotional distress
Despite its sympathy with plaintiff, and an acknowledgment that having others see the photos would be embarrassing and upsetting, the court found that plaintiff failed to establish a case of negligent infliction of emotional distress. This part of the case failed because plaintiff did not show that she had been exposed to an unreasonable risk of bodily injury or death. There was nothing in the record to cause plaintiff to fear that she was exposed to physical harm.