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Here's a hypothetical:

Suppose person A is married, and person B is married. But Person A has an online intimate relationship on an online service with Person B. Both persons conceal the relationship from each of their spouses.

During the course of the long relationship a lot of intimate, incriminating personal information regarding Person A and Person A's spouse is revealed to Person B.

Person A decides to end the relationship, ghosting Person B.

What legal repercussions might Person B get into if Person B copied every message onto a thumb drive or paper and gave them all to Person A's spouse?

Assuming everything is true and correct and was copied without modification directly from the online service?

  • Well, person B's spouse will probably find out about it leading to the legal consequence called "divorce" – Dale M Aug 31 '17 at 4:15
  • Let's assume that Person B is in an open relationship with his spouse. – mark b Aug 31 '17 at 15:44
  • "incriminating personal information" It isn't clear if this is meant in a colloquial sense or in a literal sense (i.e. information about crimes omitted by the parties). The jurisdiction involves also matters - this would probably be resolved differently under U.K. and U.K. law. – ohwilleke Aug 31 '17 at 21:32
  • Let's say it's in Texas. – mark b Aug 31 '17 at 22:18
  • Just wanted to say, kudos on use of term "ghosting" here! – A.fm. Aug 31 '17 at 22:27
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Extortion

B might be subject to prosecution for second-degree extortion, in Washington state. RCW 9A.56.110 defines "extortion" as

knowingly to obtain or attempt to obtain by threat property or services of the owner, and specifically includes sexual favors

and second-degree extortion relates to the nature of the threat – it includes "To reveal any information sought to be concealed by the person threatened". However, the prosecution would have to establish that B attempted to obtain something from A, which would presumably be the continuation of the relationship.

Under the comment-modified scenario where the spouse knows of the relationship, the threat would be to reveal whatever the criminal activity is that the A's are engaged in. In that case, there is a potential defense under RCW 9A.56.130(2):

In any prosecution under this section based on a threat to accuse any person of a crime or cause criminal charges to be instituted against any person, it is a defense that the actor reasonably believed the threatened criminal charge to be true and that his or her sole purpose was to compel or induce the person threatened to take reasonable action to make good the wrong which was the subject of such threatened criminal charge.

The question then would be, how believable it would be that B's action was solely an attempt to get A to stop their criminal behavior? There is a path leading to a criminal conviction, but whether B is taken down that path depends on a lot of facts (and impressions) to be established at trial. Since A's spouse seems to know about the relationship and is unaffected by the information, giving over the thumb drive would not have any of the consequences outlined under the definition of "threat" in the law, such as revealing secrets, or harming a relationship.

"Threat" is defined (RCW 9A.04.110(27)) as "to communicate, directly or indirectly the intent to..." (list then follows, including "do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships"). That means that a threat is communicating an intent to do something: it is not doing the thing. In order to constitute a threat against A, B would have to communicate to A the intent to reveal, rather than just directly revealing. If we assume that that did not happen, the act would not fit the description of a threat.

Wiretapping

There is also Ch. 9.73, which includes the "wiretapping" law. (RCW 9.73.030, labeled "Intercepting, recording, or divulging private communication"). Washington is an all-party consent state meaning that all parties have to consent to a recording. Since email is an electronic means of communication and that is all that is required to be within the scope of the law, it might seem that this could be a violation of the wiretapping law. Nevertheless, the law says that

Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record

and notice that the word "divulge" is not included in the law. Both parties clearly know that the conversation is being "recorded". The section does eventually include "divulging" as a permitted (not prohibited) acts:

(4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers.

The section has a number of places where it is specified that one can legally divulge a communication, and nowhere does it prohibit divulging information (recording and intercepting are prohibited, but not divulging). Consequently, those parts of the statutes are without effect. In such a case, the courts are likely to re-interpret the wording of the statute so that it is sensible to talk about "divulging" (the court always find an intent underlying the words of a legislative body). It might then turn out that the court would find that the statutes also prohibit divulging without consent. One local attorney claims that the law "punishes you if you publish the recording", without explaining the authority for that conclusion (anyhow, passing on a copy of the emails is not "publishing").

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  • Interesting that 'the continuation of the relationship' would be considered 'services' but I concede the law might think so. But in this case once that information was divulged I wouldn't think that would be likely or desired. Even if it were desired, it wouldn't be the same. That might be difficult to prove. Texas is a one-party state so I wouldn't think that wiretapping would apply there. – mark b Sep 1 '17 at 19:25
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@user6726 has addressed criminal liability.

There could potentially be civil liability as well.

  • One candidate is the invasion of privacy tort of public disclosure of private facts. One version of this is "intrusion upon seclusion" such as wiretapping for which a civil action was recognized in Texas in Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973).

  • Another version very pertinent to these facts is the tort for violation of "the right to "freedom from public disclosure of embarrassing private facts."" recognize by Texas in Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). The continuing viability of the tort of freedom from public disclosure of embarrassing private facts was reaffirmed in the case of Texas Dept. of Public Safety v. Cox Texas Newspapers, L.P., 54 Tex.Sup.Ct.J. 1428, 343 S.W.3d 112 (Tex. 2011)

  • Another candidate is the tort of false light invasion of privacy, which involved disclosure of true private facts in a manner that create a misleading impression. The Supreme Court of Texas declined to resolve a split between its intermediate appellate court districts over whether that tort was available in Texas in the case of Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W.2d 198 (Tex. 1992). Eleven other states recognized the tort as of 1992. It requires, among other things, actual malice as an element of the claim.

  • Another tort that some, but not all Texas appellate courts have acknowledged (which the Texas Supreme Court declined to resolve in Diamond Shamrock is the tort of intentional infliction of emotional distress defined in the Restatement (Second) of Torts § 46 (1965): "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress...."

  • Texas used to recognize "heart balm" torts such as "criminal conversation" which basically created civil liability for having an affair, but that was abolished legislatively in the 1970s. See Smith v. Smith, 126 S.W.3d 660 (Tex. App. 2004).

  • Texas law allows for "no-fault" divorces, but, if one spouse is at fault for the breakup of the marriage, the court may take that into consideration in determining what is an equitable division of the couple's property. Adultery and cruel treatment could be implicated by this fact pattern as facts that a Texas Court could consider in making a property division in a divorce.

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  • The first two seem to deal with information becoming public, as might occur if Person B decided to create a public blog to divulge the information. Would simply giving it to Person A's spouse be considered making the information public? It's doubtful that Person A's spouse would then make the information public. – mark b Sep 1 '17 at 19:22
  • @markb In this context, "public" pretty much means publication (i.e. delivery of information intentionally) to a third party who didn't already know, much as it does in defamation torts. – ohwilleke Sep 1 '17 at 20:59

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