A mother who took part in an educational video on breastfeeding only to find the images splashed across pornography web sites can sue the original producer, a federal judge in Newark, N.J., says.
Among other claims, MaryAnn Sahoury plausibly pleaded fraud in the inducement, which, if proved, would render unenforceable the release the company had her sign, U.S. District Judge Katharine Hayden said on Aug. 2, denying most of a motion to dismiss.
Hayden also let go forward Sahoury’s claims of negligence in the company’s use of her full name and the first name of her daughter in the original video, even though another breastfeeding video filmed the same day did not give the mother’s full name.
The case, M.S. v. Meredith Corp., 11-cv-5180, is a cautionary tale on the perils of being filmed in the YouTube age.
In January 2010, Sahoury, of Fair Lawn, N.J., participated, along with her 1-month-old daughter, in “Breastfeeding Help,” produced by Meredith Video Studios. A lactation consultant asked her to do so, without pay, and she agreed “because she felt her own personal experience would be insightful and helpful to other first-time mothers who are considering breastfeeding,” says her complaint.
Meredith’s parent, Meredith Corp. in Des Moines, a media and marketing company focused on women’s interests, publishes books and magazines such as Better Homes and Gardens and Ladies’ Home Journal and produces cable television programming.
On the day of filming,Sahoury claims she went ahead based on assurances from the producer that the video would not reveal her full name and would be shown only on its website for parents and cable TV channel, Parent.tv.
After the filming, she had put the child in her car seat and was ready to go when she was asked to sign a release. She did so without reading it, assuming it reflected what the producer had told her, she alleges. Instead, it gave consent for the use of her name and allowed Meredith free use of the footage.
After months went by and she wondered when the video would air, Sahoury Googled her name in July 2010 and was “horrified” when it turned up links to pornographic websites. She learned the video had been posted on YouTube and downloaded by someone called “Nizzard,” who combined it with pornographic footage featuring a woman “with similar features and stature.”
Both Sahoury and her baby appeared in the resulting video, as did her full name and her daughter’s first name, which appeared on the screen.
Sahoury says Meredith initially helped her investigate what happened but then lost interest, so she hired a lawyer. The company then offered to retain reputation.com to create positive content that would not eliminate the links to the pornographic film but would push it further down in the list of search results.
New links and videos, however, continued to surface and resurface.
In addition, Sahoury claims she repeatedly asked Meredith to have YouTube remove the pornographic film but the company delayed until late August 2010, after it had been viewed 15,000 times. Within 24 hours of its removal, a new version had been uploaded, drawing more than 2,500 views in the first week, the complaint says.
Sahoury further claims that the top results in a Google search of her daughter’s name linked to wank.net, a pornographic site, and that Nizzard found her Facebook page and sent her a friend request that included a collage of photos from the film, leading her to delete her Facebook account.
As a result she claims she suffered humiliation, anxiety, crying and shaking spells, vomiting, sleeplessness and “an unhealthy obsession with trying to clear her and her other daughter’s name,” among other adverse reactions.
She also allegedly worries about how her daughter will be affected as she grows older as it is impossible to completely delete the film from the Internet.
She sued Meredith, Meredith Video and Parent TV last year on claims of fraud, negligent misrepresentation, negligence, breach of contract, invasion of privacy, negligent infliction of emotional distress and equitable fraud.
Hayden allowed all the claims to go forward except for invasion of privacy, since Sahoury could not show that use of her name and her daughter’s name was done “for trade purposes.” Hayden found the requisite “predominantly commercial purpose” was lacking.
Sahoury argued that Meredith placed the breastfeeding video on YouTube to drive traffic to its own website but Hayden said that she needed to show a specific effort to capitalize on her name and that a possible increase in profits from posting on YouTube did not suffice.
Nor did Sahoury allege that the video had no redeeming public interest or news value, Hayden said.
Fred Pisani of Ramp & Pisani in Tenafly, N.J., who represents Sahoury, calls the ruling “a vindication of what we’ve believed all along” and says his client continues to find the porn video readily available through online searches though the ranking varies from day to day.
Defense lawyer Jennifer Klear of New York and Meredith spokeswoman Jennifer Harken did not return calls.
Mary Pat Gallagher writes for the New Jersey Law Journal, a Daily Report affiliate.