To substantiate a claim for public disclosure of private facts, the claimant must show that the facts were not a matter of public concern or “newsworthy. This reflects concern that such claims not violate the First Amendment right of free speech. Some commentators advocate and courts use a test to help objectively determine if facts disclosed were newsworthy. The test focuses on:
- The social value of the facts published;
- The depth of intrusion into private affairs; and
- The extent to which the party voluntarily put themselves into a position of public notoriety, giving them a lesser expectation of privacy.
This test notwithstanding, the determination remains very subjective. Commentators have pointed out the potential for inconsistent results and they claim there is an unconstitutional burden on free speech. In fact, in a notable California case, a court of appeal allowed this tort to proceed against the owners of Sports Illustrated magazine for publication of a picture of a little league team, despite the owner’s claim of protection under a state statute prohibiting lawsuits that chill the exercise of free speech. The picture showed the team and its coaches, one of whom had molested some team members. In a Texas case, however, the court found that local broadcasting of videotapes secretly made by a gym teacher of female students undressing in a locker-room was newsworthy, and was therefore immune from public disclosure of private facts claims.
Recoverable damages may include emotional distress and injury to reputation. Punitive damages may also be recoverable, if the conduct is found to be deserving of punishment to deter future, similar conduct.