The circuit court erred when it granted summary judgment in favor of MarshCODE because Mr. Murphy has demonstrated facts to support the elements of the (1) defamation, (2) false light invasion of privacy, and (3) breach of contract claims. First, Mr. Murphy has provided facts to support the defamation claim. MarshCODE made a false and defamatory statement about Mr. Murphy when it told Ms. Who that he was her father. Because this matter concerns Mr. Murphy's private life, a negligence standard applies rather than the First Amendment's actual malice standard. Mr. Murphy has demonstrated that MarshCODE acted either negligently or with actual malice. Finally, Mr. Murphy has shown both general and special harm resulting from the defamatory statement. Second, Mr. Murphy has also demonstrated facts that support his false light invasion of privacy claim. The parties have stipulated that MarshCODE portrayed Mr. Murphy in a false light. MarshCODE publicized the false portrayal when it transmitted it to all 140,000 subscribers of Family Tree, including Ms. Who, and used the Internet as the medium of transmission. Any reasonable person would find the false portrayal highly offensive. Furthermore, like with defamation, Mr. Murphy has shown MarshCODE acted either negligently or with actual malice. Finally, Mr. Murphy has satisfied the elements of his breach of contract claim. The original agreement constituted a binding, unilateral contract. Because Mr. Murphy substantially performed, MarshCODE had an obligation to perform as well. MarshCODE breached the contract when it (1) failed to safeguard Mr. Murphy's private information and (2) used his information for a commercial service without his consent. Mr. Murphy has also shown that he suffered harm resulting from the breach.
Kelly Foss, Vince Lombardozzi & Jared Palmer, The Twenty-Ninth Annual John Marshall International Moot Court Competition in Information Technology and Privacy Law: Brief for Petitioner, 28 J. Marshall J. Computer & Info. L. 119 (2010)