Invasion of Privacy: Public Disclosure of Private Facts

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 reputation and to avoid embarrassment or mistreatment, people specifically select what elements of their private lives they reveal to the public. It is important, therefore, that the facts of a person's private life are not exposed to the public without his or her 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 the fact of his sexual orientation to the public, it might cause irreparable reputational harm, mistreatment, and even professional difficulties.

Understanding the law of privacy allows both would-be plaintiffs and defendants to take measures to prevent or otherwise remedy disclosures 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. 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 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 or, at the very least, is not information that is publicly available. Examples include sexual orientation, medical history, and financial difficulties, but depending on context, may include any other potentially embarrassing private fact, such as employment history. A photograph, video, or audio recording may also be a private fact, but only if it was taken in a public or semi-public place.

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, or to enough people that it's reasonably likely the fact will become public knowledge (assuming that those people will tell others). Examples of public disclosure include writing about the private facts on a blog, a website, as a comment on a bulletin board, or speaking to 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 should 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, exhibiting the general beliefs of the community in which the disclosure takes place would take offense to the disclosure of the particular private facts. The law recognizes that complete privacy does not exist in modern society, and that occasional, 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.

Some states require the plaintiff to prove additional elements. In California, for example, the plaintiff must prove two additional elements - that the defendant disclosed private facts with reckless disregard for the reasonable offensiveness of the disclosure, and that the disclosed facts were not of legitimate public concern. In other states, the "legitimate public concern" element is not one for the plaintiff to prove, but 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 interest in the facts-at-issue is a question that depends on the context of the case, and one in which there is no particular formula for the courts to follow. Whether this defense can be effectively asserted will depend largely on whether the person involved has made him or herself - in a temporary newsworthy capacity or a more permanent celebrity capacity - something of a public figure. In such cases, 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, whether through a release form or through accepting an interview, then he or she cannot pursue a claim for public disclosure of private fact.

Public Record

Matters of public record, such as birth date, military service records, and others, are exempted. The defendant may claim this defense by showing that the disclosed fact was actually a matter of public record. However, it should be noted that, 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.

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.