A DISCUSSION OF LAW AND JOURNALISM

Can Manti Te’o’s ‘Girlfriend’ Sue?

Lennay Kakua

By Meghan Lalonde

Diane O’Meara, who was never a college football fan, now sees her name in headlines next to one of the biggest names in the game: Manti Te’o, the Heisman runner-up and all-star linebacker from the University of Notre Dame.

Unless you’ve been hiding under a rock recently, you probably know the story: her Facebook pictures were used to create the persona of “Lennay Kekua”, a woman Mr. Te’o described as his girlfriend. He was devastated when she was in a life threatening car accident, and crushed when she was diagnosed with, and later died from, leukemia.

At first the surreal story of a player’s strength and perseverance in the face of tragedy captivated national audiences, but it soon became something much different: one of the biggest hoaxes in the history of sports. Turns out that Lennay Kekua never died. In fact, she never existed. “She” was really a man named Ronaiah Tuiasosopo, a former high school classmate of Ms. O’Meara’s.

Following a damning report by Deadspin, many wondered whether Mr. Te’o had been involved in the hoax to win sympathy votes for the Heisman trophy. But like Ms. O’Meara, Mr. Te’o maintains he was unaware of the hoax.

Mr. Tuiasosopo claims he didn’t create the fictional character to hurt anyone and that the relationship with Mr. Te’o was genuine. He denies he is gay but is clearly a troubled young man. We hope he can find a way to come to terms with what he did and who he is, and is able to forge a better future for himself.

So it’s not that we wish him any harm, but still…

Mr. Te’o thought he was whispering sweet nothings to an attractive young woman on the other end of the phone. Not to mention that he lives in the macho world of football, and is about to enter the NFL draft. There’s no question that Mr. Te’o was harmed, emotionally and perhaps even financially, by the scandal.

But what about Ms. O’Meara, whose likeness was used as the face for Mr. Tuiasosopo’s faux love affair? She’s hired a lawyer but so far, hasn’t sued. Can she?

LASIS lays out the odds for Ms. O’Meara in the great American indoor sport: the civil lawsuit.

Ms. O’Meara’s strongest claim would be that by using her pictures to create the character of Lennay Kekua, Mr. Tuiasosopo may have cast her in a false light. Though false light isn’t recognized in every state, Ms. O’Meara’s home state of California is one that does.

In order to claim false light, Ms. O’Meara would have to prove several things. First, she’d have to show that Mr. Tuiasosopo implied something false about her. This can probably be accomplished by showing that Ms. O’Meara is not now, and has never been, Lennay Kekua, that she wasn’t in a terrible car accident, and that she didn’t die of leukemia.

Next, Ms. O’Meara would have to prove that what Mr. Tuiasosopo did was offensive to a reasonable person. Considering that just about any reasonable person I know would be offended by having her personal pictures used as Mr. Tuiasosopo did, Ms. O’Meara has probably satisfied this element, too.

Third, the falsehood in question must sufficiently identify Ms. O’Meara. California law doesn’t require that the victim be identified by name. Instead, case law suggests she can be identified by the photos alone.

Lastly, Ms. O’Meara would have to prove two relatively clear things: that the falsehood was publicly disclosed and that Mr. Tuiasosopo was at fault. Thanks to Mr. Tuiasosopo’s nationally televised admission and the frenzied media coverage of the story, she’d probably be able to meet these requirements as well.

Even though the false light claim may be Ms. O’Meara’s strongest option, it’s not a sure-fire win and there are still several other options for her to consider.

Ms. O’Meara might also like to argue that Mr. Tuiasosopo violated her right to privacy when he used her pictures and likeness without her consent. Privacy laws exist in every state but in order to win this type of claim, Ms. O’Meara would first have to show that she was entitled to a reasonable expectation of privacy.

That’s a tricky thing to do in the modern world of social media.

Although jurisprudence on this subject is still developing, several cases have held that no reasonable expectation of privacy exists for Facebook, especially once you’re “friends” with someone. Thanks to nifty agreements like Facebook’s Terms of Service, once you agree to create your account, you’ve consented to the fact that your information and content you publish will be shared with others, after all, that’s the point of having a social media account.

Worst of all for Ms. O’Meara’s privacy claim, she was “friends” with Mr. Tuiasosopo (not so much in real life, but at least in the world of Facebook). By “friending” him online, she was implicitly acknowledging that information and photos she published would be shared specifically with him.

Now we turn to who Ms. O’Meara could sue if she wanted to. Mr. Tuiasosopo is just a confused – and not terribly wealthy — young man. It may be more interesting for Ms. O’Meara to seek solacein the deeper pockets of Notre Dame – which is a possibility, because Notre Dame may not have been completely blameless in perpetuating the story of the fake girlfriend. Mr. Te’o even admitted to lying to reporters about the tragic loss of his girlfriend – a story that made him more popular with fans and garnered him a lot of publicity – even though he had informed Notre Dame that something was fishy about his romance (She’s dead! No wait, she’s alive!). The school, however, did nothing.

But to win a suit against Notre Dame, Ms. O’Meara would have to prove that the university was negligent for failing to tell her that her pictures were being used without her consent. Notre Dame didn’t know the true identity behind the photographs of Lenny Kekua, even after conducting its own investigation. And besides, Notre Dame didn’t owe Ms. O’Meara any sort of legal duty.

There’s also a possibility, albeit a slim one, that Ms. O’Meara claim that Mr. Tuiasosopo violated basic tort law by intentionally inflicting emotional distress. Winning this claim would require her to prove that Mr. Tuiasosopo’s outrageous conduct was geared at causing severe emotional distress.

“The very adjectives that are part and parcel to the claim suggest the great difficulty Ms. O’Meara would have,” explains Professor Michael Roffer of New York Law School. “Did Mr. Tuiasosopo engage in outrageous conduct and did he specifically intend to cause Ms. O’Meara severe emotional distress?  One can’t say for sure without knowing all the facts but it would appear to be unlikely.”

That leaves us with one last option to consider: whether Mr. Tuiasosopo may have violated any state criminal laws.

Many states have laws against false personation and criminal impersonation, but those laws pertain only to actual, living, people, which excludes Lennay Kekua. Although Ms. O’Meara’s pictures were used, Mr. Tuiasosopo’s hoax probably wouldn’t violate these criminal standards because he was not using the photos in conjunction with Ms. O’Meara’s identity.

At the end of the day, many state laws consider what Mr. Tuiasosopo did rather harmless. “The bottom line is this,” said Professor Roffer, “Individual privacy in the world of social media remains largely unprotected in many contexts, something many users still do not recognize.”

Since the limited legal remedies available to Ms. O’Meara and Mr. Te’o seems extremely unfair, laws prohibiting “catfishing” – a term for creating a fake social media profile to pursue someone romantically online – have come to the forefront of many online privacy conversations. Those conversations have yet to yield any changes in the law.

The sad reality is that no matter how private your social media account may be, your privacy is not assured, and rarely will you ever have an expectation of privacy when you post content on social networking sites. As far as the Internet and the law are concerned: you’ve been warned, you signed on, and you may be out of luck. Users beware.

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  1. [...] The Legal As She Is Spoke blog poses and sets out to answer an interesting question yesterday: “Can Manti Te’o’s ‘Girlfriend’ Sue?“ [...]

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