Is It McDonald's Responsibility To Stop Nude Photos From Getting Online?

from the questions,-questions,-questions dept

I originally saw this story Sunday night, about a guy suing McDonald's over naked photos of his wife showing up online after he accidentally left his phone (which contained the photos) at a McDonald's. I didn't write anything up because, while the story is attention-getting, there didn't seem to be much to say about it. However, we've had more people submitting it than just about any story I've ever seen -- so apparently folks think it's worth discussing here.

One point raised by numerous submitters is the question of liability. The guy is suing McDonald's specifically, along with various employees from the franchise where he left his phone. However, it's unclear why this should be McDonald's responsibility specifically. If the guy had left the phone on a bus, would it have been the bus company's liability? It seems like yet another example of something I've referred to as a Steve Dallas lawsuit, named after the character in the old comic strip Bloom County, who once suggested that a paparazzi photographer who was beat up by a celebrity (I think it was Sean Penn in the comic strip) sue camera-maker Nikon, since that was the company with the most money -- despite it not really being involved. The same thing seems to be at work here. The guy is suing McDonald's for $3 million.

Yes, I'm quite sure it sucks to have discovered his wife's naked photos online, and I'm sure it was embarrassing. But, isn't part of the problem the guy's own fault for (a) not protecting the content on his phone and (b) forgetting the phone in the first place? Shouldn't he take some responsibility for his actions, rather than suing a company that basically had nothing to do with the issue (other than being the place where the guy carelessly lost his phone) for $3 million?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Nov 25th, 2008 @ 10:09am

    he is the one that forgot/lost the phone, everything is his own fault. Besides, carrying naked pictures of your wife around on your phone is as stupid as stupid is!

     

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  2.  
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    Joe, Nov 25th, 2008 @ 10:11am

    there may be more to this..

    Looking over the article, it appears McDonald's had possession of the phone and said they would keep it secure for him. The article doesn't specify how the content went from their possession to being posted online but if an employee was involved and the phone was in the restaurants possession, then it seems reasonable to have some liability here. Certainly, if he just lost the phone and another customer picked it up, there would be no case.

    Again, there is a lack of details here, but given the posting and subsequent harassment of the couple, this smells like there was something personal here.

     

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    Anonymous Coward, Nov 25th, 2008 @ 10:16am

    RTFA

    It looks like a McDonald's employee did the dirty upload deed, which makes the case legit. JHC Mike, read before you go off on your Magical Thinking trip!

     

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  4.  
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    Daniel B., Nov 25th, 2008 @ 10:16am

    From the BBC article:
    "He says staff promised to secure the phone until he could retrieve it."

    Wow, that puts a different spin on this don't you think? Mike, why didn't you mention this in your summary?

    While I think $3M is a bit ridiculous considering it was the guy's fault for forgetting his phone, if he can show that the pictures were pulled off the phone AFTER the staff took possession of it, then I think he has a case for some damages. But I'm not sure how he could do that - seems possible that whoever found the phone might have copied them before turning it in.

     

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    simon, Nov 25th, 2008 @ 10:20am

    Um exactly how did he find his wifes pic's online in the first place? with all the millions of porn sites I find it hard to belive he just happend acrosse the few that someone posted to.

    Either way his wife should talk to him about looking at porn!

     

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    EVIL_BASTARD, Nov 25th, 2008 @ 10:22am

    this article is worthless without pics.

    I think 3m is inane. He should get his phone back and try and be less of an ass in the future.

     

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  7.  
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    Anonymous Coward, Nov 25th, 2008 @ 10:22am

    What was he doing to figure out the pictures had been released on the web in the first place?

     

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    Lonnie E. Holder, Nov 25th, 2008 @ 10:22am

    From the are-we-greedy-or-what department...

    You have to wonder, as a previous commenter noted, what the guy was doing with nekkid photos of the wife on his cell phone (maybe that explains those long trips into the restroom). However, to each his own.

    Regardless, how do we know the guy did not upload the photos himself and then blame McDonald's (we all remember the finger in the chili)? If the incident actually happened, I can see the potential for personal liability (i.e., the employee or employees that claimed they would safeguard the cell phone), but where does McDonald's liability come in? Oh, I forgot. They have money, their average employee does not.

     

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  9.  
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    David, Nov 25th, 2008 @ 10:22am

    If a McDonald's employee had a duty to not go through all the files on the phone and post the nude pics and personally identifying information online, and this occurred in the scope and course of the McDonald's employee's employment (it must have, the phone was left at the McDonald's so whoever took it had to have gotten while he/she was working), then McDonald's is responsible for that employee's conduct under a well-settled theory of tort law.

     

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  10.  
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    Anonymous Coward, Nov 25th, 2008 @ 10:23am

    Pics?

     

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    David, Nov 25th, 2008 @ 10:25am

    ^^ to clarify, obviously the guy has to prove by a preponderance of evidence (ie, >50% probability) that a McDonald's employee actually was the one who posted the stuff online.

    Assuming he can do that, I think McDonald's will have a tough time disclaiming responsibility.

     

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  12.  
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    Tomoyo, Nov 25th, 2008 @ 10:26am

    I'm Lovin' It

    The man is a negligent, forgetful stooge who, if anything, should be penalized for leaving pornographic material in a McDonald's. (I'm being facetious about that last point, but the dude is a retard.)

     

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    Anonymous Coward, Nov 25th, 2008 @ 10:27am

    $3M for.. Get this...

    "loss of earnings and want to recover the cost of moving to a new home."

    [I believe the Rimshot sound would play here.]

     

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    Richard Ahlquist (profile), Nov 25th, 2008 @ 10:29am

    This is a the newest

    Surely this is a Viral PR stunt by McDonald's to capture the exhibitionist market!

     

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    Xan, Nov 25th, 2008 @ 10:30am

    I agree with Simon. Seems kind of unbelievable he just happened to run across naked pictures of his wife on the internet. Wouldn't be surprised if he uploaded the pictures himself and then "forgot" his phone at McDonalds.

    To #3: I don't think that makes the case legit at all. Even if one of McD's employees took the phone and uploaded the pictures, how is that their responsiblity? It is rediculous that everytime an employee does something on their own people sue the company. McDonald's didn't do anything.

    If this guy wins then everyone might as well start leaving their cellphones everywhere and just hope someone uploads the pictures to the web. Heck, maybe I will take some pictures and go over to Starbucks right now.

     

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  16.  
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    HPIguy, Nov 25th, 2008 @ 10:31am

    Re:

    +1.....LOL

     

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    Lisa Westveld, Nov 25th, 2008 @ 10:35am

    I've read that article too and ever since I can't help but wonder... Where are those pictures nowadays? :-)

    To be honest, this guy finds his pictures online somewhere? Seems like a huge coincidence to me, unless he knew where to look beforehand. Seems like a setup to me. This guy probably left his phone on purpose, even dialing the McDonalds to tell them to keep it safe somewhere. In the meantime he also uploaded the pictures of his wife and then picked up his phone again. Honestly, how many people would know whom to call when you lose your phone somewhere?

    This guy is gambling, hoping McDonalds will pay him a huge amount just to avoid a lawsuit and bad publicity. He'll probably succeed too. And when that happens, more people will likely "forget" their phones...

     

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  18.  
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    Platypus, Nov 25th, 2008 @ 10:36am

    For Lonnie

    How would they know that the couple didn't post the pictures themselves? Well, how about logs from the servers where they were uploaded? How about testimony from one employee about having seen another employee do it? There are all sorts of ways. Such a thing obviously needs to be proven in court, but it's entirely possible that such evidence exists or can be discovered.

    More broadly, yes, the couple should take some responsibility for their actions. However, our society gives people the right to sue for redress when they believe they have been harmed, and if - as many other posters have pointed out - McDonald's employees were involved while on the job then McDonald's itself could be liable. If Mr. Masnick wants to eliminate or restrict the ability to sue for a genuine harm, I'd like to hear how he plans to do that without precluding cases that even he might regard as legitimate. "Deregulate everything and let the courts [also part of the government] sort it out" is an ill-thought-out strategy at best, but when combined with "forbid any lawsuits I personally regard as frivolous" then it's downright immoral. "Might makes right" is the only alternative left, which might be fine with Mr. Masnick but certainly is not fine with me.

     

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  19.  
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    Platypus, Nov 25th, 2008 @ 10:36am

    For Lonnie

    How would they know that the couple didn't post the pictures themselves? Well, how about logs from the servers where they were uploaded? How about testimony from one employee about having seen another employee do it? There are all sorts of ways. Such a thing obviously needs to be proven in court, but it's entirely possible that such evidence exists or can be discovered.

    More broadly, yes, the couple should take some responsibility for their actions. However, our society gives people the right to sue for redress when they believe they have been harmed, and if - as many other posters have pointed out - McDonald's employees were involved while on the job then McDonald's itself could be liable. If Mr. Masnick wants to eliminate or restrict the ability to sue for a genuine harm, I'd like to hear how he plans to do that without precluding cases that even he might regard as legitimate. "Deregulate everything and let the courts [also part of the government] sort it out" is an ill-thought-out strategy at best, but when combined with "forbid any lawsuits I personally regard as frivolous" then it's downright immoral. "Might makes right" is the only alternative left, which might be fine with Mr. Masnick but certainly is not fine with me.

     

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  20.  
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    Anonymous Coward, Nov 25th, 2008 @ 10:38am

    Re: Re:

     

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  21.  
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    Dan, Nov 25th, 2008 @ 10:45am

    Bloom County Verification

    It was indeed Sean Penn in the Bloom County comic. This was soon after Sean Penn had a real life incident with a paparazzi. Steve Dallas himself was the paparazzi in the comic strip.

     

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  22.  
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    ehrichweiss, Nov 25th, 2008 @ 10:46am

    Re:

    Mike did drop the ball on this one because the first article I saw on this reported that not only did McD's promise to keep the phone safe for him, one of the employees looked at the pics on the phone and sent the guy's wife a message stating basically "I like the pics" before the guy could come pick it up.

     

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  23.  
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    Anonymous Coward, Nov 25th, 2008 @ 10:47am

    McDonalds isn't your freaking babysitter. It's common knowledge that if you leave even a newspaper there, someone else may pick it up or toss it out. This is how personal property is, well, treated at fast food joints.

    He should have realized he was missing something and gone back the moment he entered his car. Did he not check his pockets when entering the car?

     

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  24.  
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    ehrichweiss, Nov 25th, 2008 @ 10:54am

    Re: From the are-we-greedy-or-what department...

    Since you're asking such basic questions, let me fill in some of the answers for you...

    There are ways to track people's actions online including, but not limited to, figuring out who uploaded a specific image, at what time and from what IP address they were posting from. With that type of info they can build a timeline for when the guy lost the phone, when it was reported lost, when they called the guy the first time stating they had found it, when the employee sent the text message to the guy's wife, etc.

    Now that you know this, tell everyone else who asks that way we don't have to pull the crayons out for everyone else too..

    DickMe's is responsible because companies are responsible for the actions of their employees.

     

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  25.  
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    Anonymous Coward, Nov 25th, 2008 @ 10:55am

    Re: Re: Re:

    Thank you!

     

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  26.  
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    ehrichweiss, Nov 25th, 2008 @ 10:58am

    Re: I'm Lovin' It

    He might be all of the above but it was the employee who did the actual wrongdoing. Or can I just punch you in the face and declare it's ALL YOUR FAULT because you're an ugly fool?

     

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  27.  
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    Bill Clinton, Nov 25th, 2008 @ 10:59am

    Arkansas? Dang, I'd hit that, if Hillary wasn't around...

     

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  28.  
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    hegemon13, Nov 25th, 2008 @ 11:01am

    Re:

    A friend or co-worker could have found it and harassed him about it.

     

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  29.  
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    ehrichweiss, Nov 25th, 2008 @ 11:01am

    Re:

    I guess you didn't read one of the other articles where it was discovered that whoever uploaded the pics also released their personal information as well? Or the part where they got a bunch of harassing phone calls from people who saw those pics online? It's believable to say that someone likely told them where the pics were located online.

     

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  30.  
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    ehrichweiss, Nov 25th, 2008 @ 11:03am

    Re:

    It's one thing for a random person to do that, but for a store employee who said they were going to keep it safe for you is another entirely.

     

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  31.  
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    The Fried Piper, Nov 25th, 2008 @ 11:04am

    Excuses to look at porn....

    Actually, if you follow the sequence of events listed on the BBC article, you notice that they only found out about the uploading to the net after a bunch of undersexed guys called and texted the wife on the number listed with the photos. Could have gone something like this:

    Hey baby loved your pics on boinkmybrainsout.com! Call me for a good time @ 555-1567!

    Or somthing like that. This seems to be a genuine case against the franchise owner, but I still dont see how McDonalds corporate could be responsible since they aren't the actual employer of the perpetrator.

     

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  32.  
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    hegemon13, Nov 25th, 2008 @ 11:05am

    Re:

    Ridiculous or not, it is accepted legal precedent that a company is responsible for employee actions any time the employee is working or representing the company. The employee would have been working at least at the time he took the phone, so McDonalds is on the hook. That is, of course, if the guy can prove a McDonald's employee uploaded the pictures.

     

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  33.  
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    hegemon13, Nov 25th, 2008 @ 11:12am

    Re: Excuses to look at porn....

    For the same reason that the lawsuit for the (hoax) severed finger in the chili was against Wendy's, not a franchise owner. The corporate name is on the building, they take a cut of the profits, and the franchise represents the corporation. Therefore, liability can and does flow uphill. If an employee harassed a customer sexually, no one would blink at a lawsuit against McDonalds, even though the employee was hired by the franchise. Plus, with McDonald's, doesn't the corporation provide the benefits and cut the checks?

     

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  34.  
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    john, Nov 25th, 2008 @ 11:16am

    this is a case of a good ol' Mexican finger pointing after a negligent case( this happens everyday) in what ever the authority points finger at the responsible party for doing so the party point towards someone else who at the same time points to someone else until it ends up beeing the familys fault...

     

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  35.  
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    amaress, Nov 25th, 2008 @ 11:20am

    Re:

    Her name and phone number was uploaded with the pictures. People called her.

     

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  36.  
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    eleete, Nov 25th, 2008 @ 11:21am

    Re: Re: From the are-we-greedy-or-what department...

    Wow, you should work for RIAA.

    figuring out who uploaded a specific image, at what time and from what IP address they were posting from. With that type of info they can build a timeline for when the guy lost the phone, when it was reported lost, when they called the guy the first time stating they had found it, when the employee sent the text message to the guy's wife, etc.

    That whole post is worthless blathering, as you cannot link a person to an IP address, but nice try. Also think about it. If they were sending the pics from the phone of the owner, according to your post, the husband is guilty of all of this. It was most likely sent From His Own Phone. I'm sure most of the others who read here have figured this out. But your comment is pretty silly. Perhaps you should take a job at the RIAA, they seem convinced of the same evidence you are.

     

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  37.  
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    Eball, Nov 25th, 2008 @ 11:36am

    McDonald's employees

    Mike, I know you often reply to comments, but since I'm not seeing it here I thought I'd ask outright: what are your opinions on the liability of employees, if they say they have the phone and will keep it secure? Of course, there are very few details here, like how he found these pics, or how long the gaps were between leaving it, employees having it in their possession, and the man getting it back. And of course, $3 million is still crazy. But what if it was an employee who leaked the pictures? Don't you think that McDonald's would have some liability (whether or not they SHOULD) if that was, in fact, the case?

     

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  38.  
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    Michael B, Nov 25th, 2008 @ 11:46am

    Not so fast...

    There is a lot of info that hasn't been mentioned, like was the McDonald's involved a corporate store or a franchise? If it was a franchise, the employees are NOT McDonald's employees, but employees of the franchise company. But it goes further... since when is a corporation able to be held liable for the behavior of each of its employees, right down to the poor schmuck who is making minimum wage flipping burgers? This is clearly an abuse of the whole "responsibility" issue. The phone owner is clearly responsible for this because (a) he was stupid enough to put naked pics of his wife on a device which is easily lost, stolen or misplaced and (b) he was too stupid to take his phone with him. I hope it goes to court and the judge just laughs at him.

     

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    Michael B, Nov 25th, 2008 @ 11:51am

    Re: Re: Excuses to look at porn....

    Nope... the franchise company cuts the checks and provides benefits. I know someone at a local McD's franchise company. All they do is give McD's a franchise fee (which is sizeable), but Corporate doesn't even get a share of the profit. They give the franchisees access to the supply chain, use of the name, access to architects to design buildings, etc., but past that, it's a franchisee's company.

     

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  40.  
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    Nobody, Nov 25th, 2008 @ 11:56am

    "That whole post is worthless blathering, as you cannot link a person to an IP address, but nice try. Also think about it. If they were sending the pics from the phone of the owner, according to your post, the husband is guilty of all of this."

    Of course, then you have the ability to lift the prints of whomever used the phone, which can and will inevitably lead back to the person who sent them...

     

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  41.  
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    Michael B, Nov 25th, 2008 @ 11:56am

    Re: Re:

    If the employees worked for a franchise, then McDonald's has no control over any of the hiring practices. The franchisee cut checks, etc. There is an owner's association that provides benefits under a pooled arrangement.

    It is also an accepted legal argument that simply authorizing someone to put your name on their building does not make the corporation liable for everything that occurs within the franchise. If that was the case, Physician's Associates, Inc. would be sued over and over for incidents at Subway restaurant. Franchise agreements specifically indemnify the corporation against legal actions of this kind.

     

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  42.  
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    RS, Nov 25th, 2008 @ 11:58am

    Doubly stupid, this guy

    If this guy's real issue is the embarrassment this caused his wife, why would he take up a lawsuit which will only bring more notoriety to her?

    Oh, I know, MONEY. Rather than working harder and trying to make a better buck for himself and the missus, he'd rather capitalize on the objectification of his wife, by further objectifying her in a lawsuit, and with the added bonus of covering up for his own stupidity. Pathetic.

     

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  43.  
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    Yakko Warner, Nov 25th, 2008 @ 12:08pm

    Re:

    Probably not. From the sound of it, they didn't know anything was wrong until they started getting calls as a result of the pics & info being online. Could've been days later, by which time any physical evidence would probably be destroyed. (The article isn't clear.)

    For that matter, it's not entirely clear that leaving the phone at the McDonald's is when the pics were made available. A co-worker could've uploaded them when he left the phone at his desk as he went to the bathroom once. The guy could be prone to leaving his cell phone behind on a frequent basis.

    I think his case will hinge on proving that the pics were uploaded during the time the phone was in the store's custody, and that the pics were uploaded from the phone (and not the theoretical malicious co-worker uploading them to his home account first, and then uploading them to the porn site later).

     

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  44.  
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    eleete, Nov 25th, 2008 @ 12:17pm

    Re: Re: I'm Lovin' It

    Could it not have been a patron ? Do you have the name of THE employee that did it ?

     

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    Erv Server, Nov 25th, 2008 @ 12:17pm

    Guilt

    If the McD's employee did in fact upload the pics I think the corporation will settle out of court, likely send the McVictims a 6 figure McCheck

     

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    Lonnie E. Holder, Nov 25th, 2008 @ 12:20pm

    Re: For Lonnie

    Platypus:

    The problem I have is the "genuine harm" part. The guy left his cell phone at McDonald's. Is this McDonald's fault? I also have to wonder how anyone would ever find those kinds of pictures on a cell phone, unless the backdrop showed his wife au naturale. This whole thing stinks of setup and stupidity. The harm should be to McDonald's because they are a family restaurant. They should sue the guy for leaving pornographic materials in a place where they might be exposed to children.

     

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  47.  
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    Lonnie E. Holder, Nov 25th, 2008 @ 12:24pm

    Re: Re: From the are-we-greedy-or-what department...

    ehrichweiss:

    It will be interesting to find out just where the pictures were uploaded from. Would it not be humorous to discover they were uploaded from the phone?

    Yes, I know there are ways of tracking when and where stuff was uploaded. There are also ways around that tracking as well. I have to believe that whoever uploaded this stuff was smart enough to do it in a way that could not be traced back to them. If they did the upload from a McDonald's computer, they are in violation of company policy.

    Keep your crayons where they belong.

     

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  48.  
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    Lonnie E. Holder, Nov 25th, 2008 @ 12:29pm

    Re: Not so fast...

    What if they guy had left nekkid pictures of his wife in a manila envelope with her name, address and telephone number? Is it McDonald's responsibility that the pictures are posted on the internet within an hour? It is a well established point of law that Finders-keepers losers-weepers. The person finding the envelope can claim the husband gave him the pictures, or better, sold him the pictures - it would be funnier if it was true.

     

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  49.  
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    Lonnie E. Holder, Nov 25th, 2008 @ 12:31pm

    Re: Guilt

    Or lifetime gift certificates for Happy Meals...

     

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  50.  
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    Mogilny, Nov 25th, 2008 @ 12:31pm

    What?

    What a douche bag for keeping naked pictures of his wife on his phone? He prolly shows them off to his friends anyways, scum.

    If the perpetrators weren't teens, then he would have a case against them. But against the establishment where the crime occurred? Good luck buddy.

     

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  51.  
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    TW Burger, Nov 25th, 2008 @ 12:31pm

    Re: RTFA

    I'm not so sure that you are correct. A firm is responsible for the actions of an employee relating to the job when directly the customer on the firm's behalf. If an employee spilled hot food onto a customer and burned them then the firm is liable for damages. In this case the employee stole a customer's property instead of placing it in a supervisor's possession so the owner could be contacted. This is outside on the firm's control and unless a pattern of similar events, all of which were known of by the local supervisors and head office, can be proven, the law suit does not have any merit.

     

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  52.  
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    Lonnie E. Holder, Nov 25th, 2008 @ 12:32pm

    Re: Doubly stupid, this guy

    Good point. Want to bet those pictures are still on someone's computer somewhere? I suspect those will pop up again.

     

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  53.  
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    Anonymous Coward, Nov 25th, 2008 @ 12:35pm

    Lonnie's my new favorite poster here.

     

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  54.  
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    Anonymous Coward, Nov 25th, 2008 @ 12:38pm

    Re: Doubly stupid, this guy

    You have to wonder if this was planned. If this went to trial I, as a defense attorney, would try to convince the jury of this.

     

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  55.  
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    eleete, Nov 25th, 2008 @ 12:38pm

    Re: Re:

    "Ridiculous or not, it is accepted legal precedent that a company is responsible for employee actions any time the employee is working or representing the company."

    Really, So, if I murder my wife I should do it while on the clock ? Or rob a bank ? I think it gets down to personal responsibility of our own actions. I have a smart phone with Tons of data in it. Want to know how I avoid situations such as these ? There are no nude pics on my phone, I lock it with a code, and I take it with me WHEREVER I go. The owner violated rule 3.

    I also present the argument that some patron might have enjoyed their Big Mac while forwarding the pics and comments and then turned it in to the manager. Perhaps he paid cash for his meal, and now where is that persons identity? Examine it closely and there is only one way the finger should point. Back at the owner of the phone. I may lose a lottery ticket one day, if my numbers hit, whom should I sue ? Silly really, how petty we've become.

     

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  56.  
    identicon
    eleete, Nov 25th, 2008 @ 12:52pm

    Re: Re: For Lonnie

    One step further, had the guy dropped it on the streets of a busy city, who would be sued then ?

     

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  57.  
    identicon
    Chris, Nov 25th, 2008 @ 12:53pm

    If he wins...

    I'm losing a phone at McDonald's.

     

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  58.  
    identicon
    okee dokee, Nov 25th, 2008 @ 12:56pm

    Prove MC DEE did it

    So before Mcdee finds the phone - another patron (or badguy) emails the stuff via website to wherever.

    MCdee has NO liability here.

    Just f'n ridiculus !!

     

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  59.  
    identicon
    YoMamma, Nov 25th, 2008 @ 1:00pm

    Oooh baby, wanna see my big fry and mcnuggets?

     

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  60.  
    identicon
    eleete, Nov 25th, 2008 @ 1:07pm

    Re:

    So we have the person who found the phone, that person hands it to an employee. Employee may or may not hand it off to another employee. Finally, employee hands it to manager where it is 'secured'. (lol, McDonalds now offering security with happy meals?) Hopefully no other employee touches the phone, or perhaps they did even after the manager.... Who did it ?

     

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  61.  
    identicon
    eleete, Nov 25th, 2008 @ 1:10pm

    Re: Doubly stupid, this guy

    Sign contract with Playboy, and booya!!! Homees rich biatch.

     

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  62.  
    identicon
    eleete, Nov 25th, 2008 @ 1:13pm

    Copyfries?

    No one brings up the most excellent point for this case. Why not sue them for copyright infringement ? The second those images were created they were copyrighted. Triple damages and all... Make a lil extra 'Oh Im so hurt cash' on the side. McDonalds loves things on the side.

     

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  63.  
    identicon
    Harold Macklin, Nov 25th, 2008 @ 1:16pm

    how much of a financial impact did the pictures do? was he (or his wife) so embarrassed that it would be worth 3 million dollras? even porn stars don't get that much for still life photos. just get over it and don't take more pictures if you are that ashamed

     

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  64.  
    identicon
    judsonian, Nov 25th, 2008 @ 1:21pm

    ..... David

    Of course it could also be argued that the employee had to rifle through the phone to determine ownership. This does not preclude the "posting" aspect. Question I have is where did the employee upload the photos? A laptop at the "office", his house? And by "staff" did Phillip Sherman talk to a manager? Assistant Manager? old guy supplimenting his social security check? All relevent.

    Why oh why could I not get called for this jury!

     

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  65.  
    identicon
    judsonian, Nov 25th, 2008 @ 1:25pm

    Re: Re: Re: I'm Lovin' It

    Great point ... McDonalds counter sues for possession of pornographic material (making available to minors). I'm not positive but in good old "Heartland" Arkansas I'd bet that production of pornography is illegal as well. Can i hear the "Indictment" in the air?

     

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  66.  
    identicon
    Michael B, Nov 25th, 2008 @ 1:30pm

    Re: Re: Not so fast...

    Sounds like the perfect setup to divorce with no alimony... give the naked pics to someone and say your WIFE distributed them, then claim infidelity on her part. Sounds like a great plot for Law & Order... or maybe SVU!

     

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  67.  
    identicon
    Dana King, Nov 25th, 2008 @ 1:33pm

    Jeeze...

    You might think that before the phone was turned into a Staff member, someone might have ejected the memory card that almost all phones have these days. Then when they found the phone, it is too late to stop the dirty work of the person that had the memory card out in the world.

    But like everyone has said. Details are not being included here.

    1) Did someone turn in the phone to the staff.
    2) How long was the phone left out in a public place where it could be handled.
    3) Did it have a memory card in it with the pictures stored on that
    4) Does the phone, now have a memory card in it.
    5) Were the pictures stored on the internal memory of the phone
    6) 16 year olds work at McDonalds and rotate through like gum drops.

    Just too many things are missing for us to feel for the guy or blame McDonalds for the issue.

     

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  68.  
    identicon
    Michael B, Nov 25th, 2008 @ 1:34pm

    Re: Copyfries?

    While the principle of "implied copyright" does exist, it's difficult to use it in court. Besides, the defense could dilute that argument simply by saying that the guy probably distributed those pics to his own friends as well. On top of that, if his wife is so hot, why the heck does he need pics if he goes home to her every night? I bet he has some other reason for taking those pics in the first place!

     

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  69.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 1:38pm

    Mastercard..........

    Buying a cellphone with camera $100
    Taking naked pics and sending them to husband $0.10
    Husband leaving camera in a McD and somebody copying and posting pics online......... worthless!

    ...... actually about -$1,000,000

     

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  70.  
    identicon
    Jizzle, Nov 25th, 2008 @ 1:46pm

    The liability rests with Mc. Donalds. The employees are employed by Mc. Donalds. The employees were seen on camera messing with the phone. This was of course AFTER the conversation with the guy telling him they have his phone and tried to get it to him but missed him. The guy having nude images of his wife on the phone may not have been the smartest thing, but it was HIS phone and they had no right going through his images on his phone and uploading them to the internet. Mc Donalds will have to pay for its employees mistake.

     

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  71.  
    identicon
    Platypus, Nov 25th, 2008 @ 1:46pm

    You're missing the point, Lonnie. Who determines whether a lawsuit is frivolous or not? You? Michael? Get over yourselves, both of you. Let's say that the guy does believe that he was harmed by the actions of a McDonald's employee, over and above the harm for which he alone was responsible. After all, he might have left the pictures in a restaurant, but he didn't post them to the internet. Who did, and why shouldn't they be held accountable? Why shouldn't the person (possibly the same) who made a promise *as an employee* to keep the camera secure and then failed to do so?

    Maybe Sherman won't be able to prevail on the specifics of this case, but people seem to be saying that he shouldn't bring suit at all. Why not? What objective, generally applicable standard would you apply that would preclude this case but not (for example) one involving upskirt cameras under the tables? After all, that's the risk they took when they sat down, right? Nope, sorry. There are legal standards for reasonable expectation of privacy. It is the job of courts, not random people on the internet, to determine how statute and precedent defining those standards apply to a particular case. Access to that process is an essential right, and no right should be taken lightly just because it's occasionally abused.

    As for you, eleete, please look up the distinction between criminal and civil law. That should make it clear why your murder/robbery examples are irrelevant. As for personal responsibility, you might consider whether a self-inflicted harm absolves everyone else of any responsibility for things they do to increase that harm.

     

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  72.  
    identicon
    jonny_trouser_python, Nov 25th, 2008 @ 1:53pm

    What the...

    So when I read the subject line I was thinking "Guy leaves phone in Mc Donalds and Mc Donalds employee's put the naked pictures of his wife on the Internet" - I didn't read anywhere in the article as WHO put the pictures on that web? Was it definitely a Mc Donalds employee or was it the next customer (of many 100's of customers) that happened to stumble across it??

     

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  73.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 1:56pm

    And the wife wasn't even hot! :(

     

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  74.  
    identicon
    eleete, Nov 25th, 2008 @ 2:03pm

    Re:

    Hi Platy,

    "it is accepted legal precedent that a company is responsible for employee actions any time the employee is working or representing the company."

    Above is the quote that I was responding too, and included in my own, but thanks for reading. I'm well aware of the differences between the two. As for your final point, what should the harm of exposing said pictures be ? In US$ that is. I'm quite curious.

     

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  75.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 2:51pm

    Re: there may be more to this..

    Even if an employee did it, the company itself is still not responsible. At most, you could sue that particular franchise, but thats even stretching it. You'd sue the actual person who did it as they acted outside of their jobs when doing the posting. If a McDonalds employee breaks the law, its not automatically McDonalds fault unless he was acting under some sort of order from them.

     

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  76.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 2:56pm

    Re: Re:

    You give zero reason why McDonalds is at fault as opposed to the employee. Are employers automatically responsible for any illegal action their employees take? If I get a job at McDonalds and mug someone inside the store, does McDonalds take the wrap for it and I go free? No. Thats silly. Mike didn't drop the ball. McDonalds is not at fault here. He's suing the wrong person. Sue the person who broke the rules. McDonalds doesn't have direct control over their employees. At worst, you could sue the franchise itself, but not the entire chain.

     

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  77.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 3:00pm

    Re: Re: From the are-we-greedy-or-what department...

    Since when are companies responsible for the actions of their employees actions that aren't involved with their duties. If an employee acts out of line and the company doesn't fire them THEN they can be liable for later actions.

    You're one of those who thinks that blame should be put anywhere other than where it makes sense.

    Sue the guy who did it. I don't care where he worked at the time he broke the law. McDonalds didn't break the law. The employee did. If he had done it in the past and was caught, then fine, blame Mickey Ds, however, there's no reasonable way you can place blame on MD for this one.

     

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  78.  
    identicon
    Lonnie E. Holder, Nov 25th, 2008 @ 3:39pm

    Re: Re: Re: For Lonnie

    They would probably sue McDonald's anyway because there was a Big Mac (R) wrapper near the spot where it was dropped.

     

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  79.  
    identicon
    Lonnie E. Holder, Nov 25th, 2008 @ 3:52pm

    Re:

    Platypus:

    Looks to me more like a case of "who do I blame for my stupidity"? If someone flashes a nekkid picture of their wife in public and someone takes a photograph and posts it on a web site, is it the fault of whereever that person was that it happened?

    I agree that a little fact finding is in order, but to sue McDonald's or anyone else without having some basic information is an invitation to having the suit dismissed. I hope it is dismissed because it will serve this guy right. It is one thing to fart in the middle of a Wal-Mart, it is another to announce to the entire store that the fart by the individual in the blue-striped shirt by the name of John Smith should be ignored.

     

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  80.  
    identicon
    Joe, Nov 25th, 2008 @ 4:23pm

    Sue the city for providing a road you can use to buy porn

    Yeah, lets sue the city for providing a road that child molesters can use to drive and buy kiddie porn! Lets BAN roads!!!

    F'ing people

     

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  81.  
    identicon
    Rekrul, Nov 25th, 2008 @ 4:53pm

    I can't believe nobody has a link to the real pics...

     

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  82.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 5:27pm

    Re: Re: Re:

    Niiiiiiiice!! Only 1 though? :)

     

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  83.  
    identicon
    Ummm, Nov 25th, 2008 @ 6:49pm

    Was she hot?

     

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  84.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 8:40pm

    Re: RTFA

    Really? So why is it that the employee who violated his rights not the one being held responsible for this? Oh that's right.... the employee isnt the one with the deep pockets.

    IF McDonald's encouraged this behavior, then yes they should be responsible otherwise, the individual that did it is the responsible party.

     

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  85.  
    identicon
    Anonymous Coward, Nov 25th, 2008 @ 8:44pm

    Re:

    We need to then extend this responsibility to the individuals parents as well. They certainly are more responsible than McDonald's for raising such a morally corrupt person.

     

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  86.  
    identicon
    Rose M. Welch, Nov 25th, 2008 @ 8:59pm

    Re: there may be more to this..

    Who turned it in to the employees? Maybe they snooped the telephone? Or maybe it was open to other devices via Bluetooth while it was there?

     

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  87.  
    identicon
    thorswitch, Nov 26th, 2008 @ 2:53am

    How he found out about the pictures

    Here's a statement by the couple's attorney from a story published by a local TV station:
    Statement from Tina Damron, Damron Law Firm
    "My clients have suffered immeasurably as a result of the actions and inaction of the Defendants in this case. The case is not simply about leaving personal property in a public place but, about McDonald’s, through its employees, assuming the duty to turn the telephone off and safeguard it and failing to do so. Rather McDonald’s employees chose to forward the photographs to my client's father-in-law and endanger the Plaintiffs by publishing them with identifying information on a vile website depicting illegal acts with minors, among other things. It is unfortunate the Defendants have refused to resolve the matter without further damages and embarrassment to the Plaintiffs."
    If this is true, then it appears that they found out about the pics being online because someone sent copies of the photos to her father. As to how they found them on the web, the article isn't clear, but I would assume it was either because (1) when they "forwarded" the pics to the father, what they actually did was send him a URL to where the pics could be found, (2) they sent him the actual pics *and* the URL or (3) when they realized these people had sent the pics to her dad, they figured that they might also have posted them elsewhere and began looking. I dunno, but those all seem plausible to me.

     

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  88.  
    identicon
    Anonymous Coward, Nov 26th, 2008 @ 4:37am

    Zero Accountability

    Must have taken a page from the US Gubberment...why be responsible when you can point blame at your God.

     

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  89.  
    identicon
    pcme, Nov 26th, 2008 @ 6:08am

    half the

    I believe that it would depend on how the photos got onto the net if they got onto the net directly from that cell phone then I would say no. But if the photos were sent from that phone to another e-mail or phone then sent up online then yes.
    Most online uploaders take the persons IP addy from which the photos are uploaded from.

     

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  90.  
    identicon
    Anonymous Coward, Nov 26th, 2008 @ 3:26pm

    To all the people who are posting things like "Niiiiiiiice!! Only 1 though? :)", most likely in response to the link posted in #20; You're all morons if you think that's one of the photos!

    Are you people too thick to notice the line at the bottom of the paragraph that says "(google.com, thumbnail star via Ask Jolene)"??? Click the "thumbnail star" link and it takes you to a page with five other photos of that MODEL, who is named Katja according to the filenames. The one verified photo of Tina Sherman in lingerie that accompanies some news stories (which can be found in about 10 seconds with a simple web search) shows her to be a brunette, while Katja is a blonde.

    How do you people even manage to open a browser window, let alone find your way to a web site like this?

     

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  91.  
    identicon
    dave, Nov 26th, 2008 @ 5:14pm

    Re: RTFA

    Whatif it's a setup? it looks way too suspicious that the logo was placed on it. Employees dont have access to that. I believe they wanted cheap money and Mc Donalds is an easy target.

     

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  92.  
    identicon
    Scott D. Sullivan-Reinhart, Nov 26th, 2008 @ 6:57pm

    More than likely the transfer was on his online logs

    Everyone seems to want to go off on how this guy was looking at porn to have found his wifes pictures. He more than likely just looked at his online transaction logs and saw that someone had emailed them or picture mailed them to someone else. Every transaction my phone makes is recorded to my online records so I know exactly what has been done using my phone and when. If my phone was ever stolen I would have enough data online to recover the phone or at the very least have a good idea of who has it and what sort of damages they have done with it.

     

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  93.  
    identicon
    danny, Nov 30th, 2008 @ 10:45am

    what??

    its micky d's responsibility to keep the nations children from getting fat, not keep some stupid couples white trash nude pics from getting on the web, 3 million?? are they serious?? stupid people.

     

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  94.  
    identicon
    Larry, Nov 30th, 2008 @ 4:37pm

    Nude Pictures on phone at McDonalds

    It's my guess that the Guy posted the pics on the internet himself and planted the phone at McDonalds in order to sue.

     

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  95.  
    icon
    Wayne Myer (profile), Dec 1st, 2008 @ 12:26pm

    The Streisand Effect Strikes Again!

    Most of us probably would not have even heard about or seen the pics had this guy not sued.

     

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  96.  
    identicon
    Anonymous Coward, Dec 9th, 2008 @ 11:15am

    Hey, this woman's husband is a jerk. But look at it my way. With all the lawyers in need of income in any way they can steal it, why not?

     

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  97.  
    identicon
    anywho, Dec 15th, 2008 @ 9:16pm

    mcdonalds guy

    The guy doesn't have a case. I would be surprised if it even goes to court. 1) he does not know who stole the pic. 2) he does not know who put the pic on-line. It could have been her for all I know. 3) I wonder how many people he showed the pic to, before the pic showed up on-line. If McDonalds stole the pic and used in an add to try and make money, he has a case.

     

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  98.  
    identicon
    Tina Damron, Dec 22nd, 2008 @ 10:06am

    McDonald's

    To Whom it may concern,

    For those who are not familar with the laws that will decide the liability of the defendants in this case and do not have all the facts necessary to form an informed opinion or decision,it is a tort in the state of Arkansas to publicly disclose private facts about another, i.e. to publish on the internet nude photos of someone. Further, when the agent of a company, i.e. the manager of McDonald's, voluntarily agrees to take possession of personal property and assures the owner he will safe guard the same and turn it off, that creates a duty on the part of the company, throught its agent, to do what was promised. If that duty is breached by say; not turning the phone off, searching through it, posting photographs from it on a website that is frequented by pedophiles and has such images on it, along with the persons name, addresss and telephone number, so that other unsavory persons from all over the world can abuse the owner's family via lewd and threating telephone calls and text messages, and then from that very same telephone the agent sends such photos to family members of the owner; that is negligence, intentional infliction of emotional distress and a host of other civil claims that are also torts in the State of Arkansas.

    It is from these acts and failure to do what was promised that creates the liability as alleged by the Plaintiffs.

     

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  99.  
    identicon
    gary o brien, Dec 26th, 2008 @ 12:14am

    scam

    he should have put the photos in a folder to protect them from other people so i cant see him winning and it not mcdonald problem the fact is he may have did it him self to sue mcdonalds this is a scam in anny one eyes

     

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  100.  
    identicon
    Scott D. Sullivan-Reinhart, Jan 14th, 2009 @ 6:04am

    Mc Donald's

    I still do not see why it is everyone seems to be so quick to jump at this as someone trying to run a scam.

    1) Every transaction we make is logged by our service providers.

    2) If he called the manager this is logged.

    3) The manager as an employee of Mc Donald's accepted responsibility for the phone making MC Donald's libel for any damages.

    4) If the image was sent prior to his pick up of the phone and after the communication with the Mc Donald's manager then Mc Donald's is Libel.

    If the transfer happened prior to the Manager taking responsibility for the phone or after the phones pick-up from McDonalds then that is another issue entirely.

     

    reply to this | link to this | view in thread ]


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