The Associated Press reports:
LITTLE ROCK, Ark. – A former staffer of then-U.S. Sen. Mike DeWine of Ohio can continue his lawsuit against a publisher that released a 2005 book based on an online sex diary that included the staffer as fodder, a federal appeals court ruled Thursday.
The opinion by the 8th U.S. Circuit Court of Appeals in St. Louis asks a lower court to allow Robert Steinbuch to search for specific evidence held by Hyperion Books. Particularly, the court said Steinbuch needs to prove Hyperion had “continuous and systematic” contact with bookstores in Arkansas to show his lawsuit against the publisher has merit.
Hyperion published “The Washingtonienne” in 2005, written by former DeWine aide Jessica Cutler. The book relied heavily on Cutler’s blog of the same name, which highlighted her sexual relationships with several men while living in Washington, D.C.
In her blog, Cutler referred to Steinbuch as “R.S.” and noted his interest in spanking and using handcuffs during sex. Her later novel, a work of fiction, does not refer to Steinbuch by name or by his initials, the court said in its opinion written by Judge Diana E. Murphy.
Steinbuch later sued Hyperion, which is owned by Disney Publishing Worldwide. Steinbuch also named Time Warner Inc., which distributed the book, and Time Warner subsidiary Home Box Office, a cable network that purchased the rights to develop a television series based on the book.
U.S. District Judge William R. Wilson Jr. initially dismissed Steinbuch’s lawsuit. On appeal, the 8th Circuit noted that Hyperion sold at least 50 copies of the novel in Arkansas, where Steinbuch moved after leaving DeWine’s office. The court also said the publisher likely had some sort of marketing campaign wrapped around the book that could include Arkansas bookstores.
“Although Steinbuch is a relatively new resident, Arkansas has an interest in protecting his privacy rights as it is the forum where he would appear to suffer the most direct effects of Hyperion’s activities,” the court wrote.
The 8th Circuit upheld the dismissal of Time Warner and HBO from the suit.
Steinbuch, who now teaches at the University of Arkansas-Little Rock’s law school, said Thursday night he had received a copy of the court’s opinion.
“I’m glad that we will be able to move forward against Hyperion,” Steinbuch said.
A spokeswoman for Hyperion did not return a call seeking comment.
Steinbuch also filed a separate lawsuit against Cutler and another blogger, seeking more than $20 million in damages. Cutler was fired when the blog was discovered. She later moved to New York and posed for a Playboy magazine spread, but filed for bankruptcy after Steinbuch’s lawsuit began.
The lawsuit is being watched by online privacy groups and bloggers because the case could help establish whether people who keep online diaries are obligated to protect the privacy of people they interact with offline.