Invasion of Privacy: Public Disclosure of Private Facts

Personal privacy law has evolved through rules created by judges over time. The historical case precedent that has resulted from these rules is known as common law. When it comes to civil lawsuits for wrongful conduct (known as torts), many states are common law jurisdictions.

The right to privacy is enforced through four invasion of privacy of claims (causes of action):

1. Intrusion of Solitude
2. Appropriation of Name or Likeness (also known as Misappropriation)
3. Public Disclosure of Private Facts
4. False Light

While every culture has social norms that dictate what is acceptable, the private lives of individuals are frequently at odds with these norms. In order to preserve their reputations and to avoid embarrassment or mistreatment, people specifically select what elements of their private affairs they reveal to the public. It is important, therefore, that the facts of a person's private life are not exposed to the public eye without their permission.

For example, a gay man in a smaller, less-tolerant community might choose not to reveal his sexual orientation to the public. Were someone to disclose private information regarding his sexual orientation to the public, it might cause irreparable reputational harm. Because confidential information about him has been made public, the man might also suffer mistreatment and even professional difficulties.

Understanding this type of invasion of privacy helps prevent the publication of private facts that could cause significant harm.

Elements of the Claim

The tort of "public disclosure of private facts" is a state law claim of invasion of privacy. The Restatement of Torts, a legal treatise on common law, generalizes the claim as:

1. Giving publicity to a matter that concerns the private life of another,
2. Where the matter would be highly offensive to a reasonable person, and
3. The matter is not of legitimate public concern

The disclaimer is that not every state will recognize these elements in the same way, or at all. There are several differences between states that will affect the strength and scope of a plaintiff's claim, and these must be considered. For example, in New York, there is no actionable legal claim for public disclosure of private facts, and no remedy is available.

In most states, however, there is an actionable legal claim for public disclosure of private facts. In a successful legal claim, the plaintiff must usually establish the following elements:

1. The Disclosed Fact Was a Private Fact

A private fact is a detail of a person's life that is not generally known to the public. At the very least, it is not information that is publicly available. Examples include sexual orientation, medical history, and financial difficulties. Depending on the context, they may include any other potentially embarrassing private fact. A photograph, video, or audio recording may also be a private fact. Usually, this is only if it was taken in a public or semi-public place where there was no reasonable expectation of privacy.

2. There Was a Public Disclosure of the Private Fact(s)

A public disclosure is any communication of the fact-at-issue to the public. The communication must be to enough people that it's reasonably likely the fact will become public knowledge. Examples of public disclosure include writing about the private facts on a blog, a website, or as a comment on a bulletin board. Other examples include speaking to friends or groups of others, in person, about the fact-at-issue. Generally, disclosure to one or two people does not constitute a public disclosure unless there is an implication that the information would be spread around.

3. The Public Disclosure of Private Facts Is Offensive to a Reasonable Person of Ordinary Sensibilities

The law asks whether an ordinary person would take offense to the disclosure of particular private facts. In taking offense, the audience should be exhibiting the general beliefs of the community in which the disclosure takes place. The law recognizes that complete privacy does not exist in modern society. Occasionally, unintentional disclosures of private facts will necessarily occur. Thus, the idea behind the "offensiveness" element is to restrict actionable claims to disclosures that are particularly harmful. Sexually-charged disclosures are frequently considered offensive. But depending on the context, other private facts may also be determined offensive.

To protect the First Amendment right to free speech, some state supreme courts have expanded the plaintiff's burden. They require the plaintiff to prove additional elements in their case. In California, for example, the plaintiff must prove two additional elements:

• The defendant disclosed private facts with reckless disregard for the reasonable offensiveness of the disclosure; and
• The disclosed facts were not of legitimate public concern

In other states, the "legitimate concern" element is not one for the plaintiff to prove. But it is a defense available to the defendant.

Defenses to the Claim

There are a number of defenses to a public disclosure claim. Below, you'll find explanations of some of the most common defenses:

Legitimate Public Interest

Whether the public has a legitimate concern or interest in the facts at issue is an important question. It depends on the context of the case. There is no particular formula for the courts to follow. Whether this defense can be effectively asserted will depend on whether the plaintiff has made themselves newsworthy. They may have temporarily entered the limelight, or they may have a more permanent celebrity capacity. In cases involving public figures, details of their private lives are more likely to be considered items of legitimate public interest. The passage of time may lessen the public interest in a given fact (the newsworthiness of it), which may weaken this defense.

Consent

Consent is a total defense. If the plaintiff has consented in some way to the disclosure, then they cannot pursue a claim for public disclosure of private facts. For example, consent can be given through a release form or by accepting an interview. If a journalist has permission to use a person's name and other private information in an interview, they can't be sued for those disclosures.

Public Record

Matters of public record, such as birth dates and military service records, are exempted. The defendant may claim this defense by showing that the disclosed fact was actually a matter of public record. However, unlike defamation actions, truth is no defense to a claim for public disclosure of private facts. This means that a defendant cannot refute a claim by showing that the disclosed fact was actually true or accurate. The falsity or truth of the disclosure is irrelevant to the defense.

Recoverable Damages

Someone publicly disclosed private facts about you. You sued, proved all the elements, and you won. The court will award you compensatory damages, or damages that are designed to make you whole. These include:

• General damages: For things like pain and suffering and other losses that are hard to calculate
• Actual or special damages: For ascertainable damages like medical bills or lost income
• Punitive damages: To punish defendants that act with reckless disregard

In some cases, the court may even award your filing fees and legal costs.

Was Your Privacy Violated? Call a Lawyer Today

Disclosing private facts to the public can be an actionable claim. Depending on the state, there are several important elements you'll have to prove to be successful. This can all get a little confusing, but it doesn't need to be.

You should have solid legal representation on your side to help you understand the law and pursue your case in court. Learn more today by finding a personal injury lawyer near you.