At the end of the 19th Century, renowned Supreme Court Justice Brandeis and another judge wrote an article about the right to privacy or the right to be “left alone,” advocating that this right should be protected. By 1905, state courts had already begun allowing and enforcing legal claims for damages by individuals whose right of privacy had been invaded.
Invasion of Privacy
Invasion of privacy as a claim, or “tort,” enabling victims to recover damages has evolved into three or four distinct claims: intrusion on seclusion, misappropriation of name or likeness, public disclosure of private and embarrassing facts, and false light publicity. Some jurisdictions have rejected the claim of false light publicity, often because it is considered similar to defamation. This article focuses on the third tort, publication of private facts.
Although some states have statutes that define and delineate this tort, in most states this tort was created and defined by courts deciding actual cases. The requirements for establishing such a claim differ, but have common elements which are discussed in this article.
Public disclosure is usually interpreted to mean widespread disclosure to a substantial number of people (often via mass media and/or the Internet) or to enough individuals that that the information (including pictures) is likely to reach the public. For example, in a Minnesota Supreme Court case first accepting the torts of invasion of privacy, two college girlfriends had traveled to Mexico and took their holiday pictures to Wal-Mart for developing. Among the photos was a snapshot of the two showering together. A Wal-Mart employee showed or described the photo to enough people that it became the talk of their small Minnesota farming community, raising questions about the girls’ sexual orientation.
There are also cases where disclosure to a few or even only one individual has been considered public disclosure. An Ohio court allowed a man to bring an action for public disclosure of private facts, where he alleged that he amended his insurance and pension benefits to name his male partner as the beneficiary. He was terminated shortly thereafter and claimed that this was the result of improper disclosure of the fact that he was gay by the personnel department to others in the company unrelated to benefits administration, without a need to know. The company argued that this could not constitute public disclosure, but the court disagreed.
Of Private Facts
The facts publicly disclosed must be “private,” i.e. facts about the person’s private life. Not all personal information is considered private, however. Some courts have explained that there must be a “reasonable” expectation that the facts will remain private. There is sometimes difficulty in assessing exactly what constitutes private facts, but disclosure of information that is already public, such as arrest and conviction records, is generally not actionable.
Facts that are initially public may, with passage of time, become private. Examples include a woman convicted of prostitution years ago, who has since changed her life and is married with children, or a man who served time for a crime, but is now a minister. Celebrities, e.g., politicians and performers, may have a lesser expectation of privacy because of their status and renown; what is private for others, may be public for them. Much depends on the facts and circumstances of each case. Unlike in a defamation case, however, the fact that the revealed private facts are true does not constitute a defense. The basic premise is that there is a right to privacy and the public does not have a right to know everything about the private lives of others.
The Disclosure is Offensive
To recover on a claim for public disclosure of private facts, the disclosure must be offensive and objectionable to an ordinary, reasonable person of ordinary sensitivity. The judge or jury must make this determination, which depends on the particular facts and circumstances of the case. A person is not considered to have a right to be free from disclosures that reasonable people would agree are only a “minor” annoyance.