Definition Edit

The Restatement (Second) of Torts §652D provides:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

Overview Edit

Unlike defamation, there is no requirement that the publicized information be false.[1] The tort of publication of private facts "involves the publication of true but intimate or private facts about the plaintiff, such as matters concerning the plaintiff's sexual life or health."[2]

Legitimate public concern Edit

The requirement that the published private facts not be of legitimate public concern is both an element of the common law tort and a constitutional limitation imposed by the First Amendment.[3] This limitation on the publication-of-private-facts tort protects “the right of the press to disseminate newsworthy information to the public.”[4] A matter can be of legitimate public concern even though it concerns private individuals "'who have not sought publicity or consented to it, but through their own conduct or otherwise have become a legitimate subject of public interest.'"[5] But there are limits as well to what matters are of legitimate public concern. In Gilbert, the court concluded that there are some facts which are beyond the sphere of legitimate public concern:

Even where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere. . . . [T]o properly balance freedom of the press against the right of privacy, every private fact disclosed in an otherwise truthful, newsworthy publication must have some substantial relevance to a matter of legitimate public interest.[6]

While the sensitive nature of the material might make its disclosure highly offensive to a reasonable person, that does not make the material any less newsworthy so long as the material as a whole is substantially relevant to a legitimate matter of public concern.[7]

California law Edit

Under California law, three factors determine whether the media has gone too far: "the social value of the facts published, the depth of the article's intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety."[8] The social value and the depth of intrusion factors both require the application of community mores, a function entrusted to the jury.[9] The role of the court is limited to determining whether a jury question is presented.[10]

"[W]hile the general subject matter of a publication may be newsworthy, it does not necessarily follow that all information given in the account is newsworthy."[11]

Public figures must sacrifice more of their privacy than the average person.[12] An individual, however, does not become a public figure merely by engaging in civil life.[13] Ordinary citizens who are not public figures sacrifice their privacy only when their "voluntary and extraordinary actions create[] [a] newsworthy event."[14]

The strongest assertion of a privacy interest can be made by an ordinary citizen who is "involuntarily in an event or activity of legitimate public concern."[15] For example, "[r]evelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning one who is merely injured in an automobile accident."[16] The absence of a person's role in creating the newsworthy event, therefore, is a significant factor weighing against dismissal of a public disclosure claim.[17]

References Edit

  1. McNutt v. N.M. State Tribune Co., 88 N.M. 162, 538 P.2d 804, 808 (App. 1975) (full-text) (citing Prosser & Keeton on Torts §117 (W. Page Keeton ed. 5th ed. 1984)).
  2. Moore v. Sun Publ'g Corp., 118 N.M. 375, 881 P.2d 735, 743 (1994) (full-text) (quotation omitted).
  3. See Gilbert v. Medical Econ. Co., 665 F.2d 305, 307-08 (10th Cir. 1981) (full-text); Restatement (Second) of Torts § 652D cmt. d; see also Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1220 n.9 (10th Cir. 2007) (full-text) (“However, we observe that state law now defines torts involving publication to take into account First Amendment restrictions announced by the Supreme Court.”).
  4. Gilbert, 665 F.2d at 307.
  5. Id. (quoting Restatement (Second) of Torts § 652D cmt. f (1977)).
  6. Id. at 308 (emphasis added); cf. Alvarado, 493 F.3d at 1221 (reiterating the substantial relevance standard).
  7. Alvarado, 493 F.3d at 1221 (noting that “[o]ther courts also appear to give ‘public interest’ status to news material on an aggregate basis, rather than itemizing what in the news report would qualify and what could remain private” (citing Ross v. Midwest Commc'ns, Inc., 870 F.2d 271, 274-75 (5th Cir. 1989) (full-text)).
  8. Kapellas v. Kofman, 1 Cal.3d 20, 459 P.2d 912, 922, 81 Cal. Rptr. 360 (1969) (full-text); accord Shulman v. Group W Prods., Inc., 18 Cal.4th 200, 955 P.2d 469, 482, 74 Cal.Rptr.2d 843 (1998) (full-text).
  9. See Virgil v. Time, Inc., 527 F.2d 1122, 1130 n.13 (9th Cir. 1975) (concluding that the determination of whether published facts are of legitimate public interest involves the application of community mores and, therefore, should be "largely" left to the jury) (full-text).
  10. Id. at 1130.
  11. Times-Mirror Co. v. Superior Court, 198 Cal.App.3d 1420, 244 Cal. Rptr. 556, 562 (1988).
  12. O'Hilderbrandt v. Columbia Broadcast. Sys., Inc., 40 Cal.App.3d 323, 114 Cal. Rptr. 826, 830 (1974) ("[T]hose who have achieved a marked reputation or notoriety by appearing before the public such as actors an actresses, professional athletes, public officers, noted inventors, explorers, [and] ware heroes . . . have to some extent lost the right of privacy, and it is proper to go further in dealing with their lives . . . than with those of entirely private persons") (full-text); see also Kapellas, 459 F.2d at 923 (stating that political candidates knowingly subject themselves to "a searching beam of public interest and attention"); Matson v. Dvorak, 40 Cal.App.4th 539, 46 Cal. Rptr. 2d 880, 887 (1995) (holding that the public had a legitimate interest in a candidate's traffic citations).
  13. See Kinsey v. Macur, 107 Cal.App.3d 265, 165 Cal. Rptr. 608, 612, 613 (1980) (holding that plaintiff's participation in the Peace Corps and employment with the United Nations did not constitute the sort of "position[] of . . . persuasive power and influence" that would make him a public figure).
  14. Pasadena Star-News v. Superior Court, 203 Cal.App.3d 131, 249 Cal. Rptr. 729, 731 (1988) (finding that a mother who abandoned her newborn child at a hospital could not "complain of the newsworthiness of her act"); see also Four Nave Seals v. Associated Press, 413 F.Supp.2d 1136, 1146 (S.D. Cal. 2005) (concluding that plaintiff voluntarily assumed a position of public notoriety when they documented their mistreatment of prisoners on camera) (full-text); Sipple v. Chronicle Publ'g Co, 154 Cal.App.3d 1040, 201 Cal. Rptr. 665, 670 (1984) (holding that plaintiff's right of publicity was diminished after he save the President's life) (full-text); Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 Cal.App.3d 880, 118 Cal. Rptr. 370, 378, 379 (1974) (finding that plaintiff "injected himself into the vortex of publicity by returning nearly a quarter of a million dollars" and thereby became a "public personage" and "relinquish[ed] a part of his right to privacy") (full-text).
  15. Shulman, 900 P.2d at 482.
  16. Id. at 484 (quoting Restatement (Second) of Torts §652D. cmt. h (1977)).
  17. See, e.g., Capra v. Thoroughbred Racing Ass'n, 787 F.2d 463, 465 (9th Cir. 1986) (recognizing that in balancing a family's privacy interests against the social value of an article that uncovered their government-protected identities, the plaintiff who participated in organized crime led his family to enter the witness protection program was not "similarly situated" to his innocent wife and son) (full-text); Briscoe v. Reader's Digest Ass'n, 4 Cal.3d 529, 483 P.2d 34, 40, 93 Cal. Rptr. 866 (1971) (stating that exposing the identity of a long-reformed criminal who had not "reattracted the public eye to himself in some independent fashion" would serve "little . . . public purpose") (full-text), overruled on other grounds by Gates v. Discovery Commc'ns, Inc., 34 Cal.4th 679, 101 P.2d 552, 559-60, 21 Cal.Rptr.3d 663 (2004) (full-text) (Note: Briscoe's holding has been limited by Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (full-text) "insofar as that holding applies to facts obtained from public official court records." Gates, 101 P.2d at 559-60. The court's reasoning, however, should still apply in cases that do not involve fact that were already a matter of public record prior to the disclosure at issue. See, e.g., Smith v. NBC Universal, 524 F.Supp.2d 315, 328 n.84 (S.D.N.Y. 2007) (recognizing that Briscoe still has some validity) (full-text)); M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 107 Cal. Rptr. 504, 514 (2001) (reversing judgment against sex abuse victims who brought a public disclosure claim against media defendants for publishing their photo) (full-text); Times-Mirror Co., 244 Cal. Rptr. at 562 (finding the jury could weigh a murder witness's privacy rights against the defendant's interest in publishing her name); Melvin v. Reid, 112 Cal. App. 285, 297 P. 91, 93-94 (1931) (holding that a reformed prostitute could pursue a public disclosure claim against the makers of a film that exposed her prior life).

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