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Public Disclosure of Private Facts

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Public Disclosure of Private Facts:
A highly offensive disclosure by the defendant of private facts about the plaintiff.

To prove a prima facie case of public disclosure of private facts, the plaintiff must prove a highly offensive disclosure by the defendant of private facts about the plaintiff.

In addition, the plaintiff must demonstrate that there was:

  1. No legitimate public interest that was served by having these private facts disclosed
  2. that the defendant was at fault for making the disclosure, and
  3. that the defendant’s actions were both the actual and proximate cause of the disclosure and of the harm the plaintiff suffered.

See Melvin v. Reid, 112 Cal. App. 285 (1931)

In order for a viable cause of action to arise, the facts that the defendant discloses must pertain to the plaintiff’s private life. Any facts that are already known or that are a matter of public record cannot be the basis of a cause of action.

Thus, for example, if the defendant reveals private facts about plaintiff that are contained in a last will and testament, the plaintiff cannot bring a cause of action based on this disclosure because a will is a public document and thus, anything contained in it, no matter how private or personal to the plaintiff, is a matter of public record.

Next, the plaintiff must prove that the disclosure was of such a nature that would be highly offensive to a reasonable person. See Sidis v. F-R Publishing Corp., 113 F.2d 806 (2nd Cir. 1940). Thus, for example, a defendant disclosing that the plaintiff likes to eat chocolate ice cream before going to bed is not highly offensive. However, a defendant disclosing that the plaintiff "sleeps around" would be highly offensive.

Further, the disclosure must involve some measure of publicity. That is to say, these private facts must be communicated either to the public, or to enough people that it is likely to reach the general public. See Brents v. Morgan, 299 S.W. 967 (Ky. 1927). Thus, for example:

Ed tells his friend Mike that Carol "sleeps around." Carol will probably not have a viable cause of action. Although this is highly offensive, Ed’s disclosure to one friend does not represent a public disclosure. However, if Ed publishes the fact that Carol sleeps around in the school newspaper, or announces it over the school intercom system, Carol would have a viable cause of action because this would represent a public disclosure.

Further, in order for the plaintiff to have a viable cause of action, he must demonstrate that the information that the defendant disclosed is not newsworthy. The term “newsworthy” is generally interpreted to mean “matters that are a legitimate public interest”. In the event that the defendant published private facts about the plaintiff that involve a legitimate public interest, the plaintiff will not have a viable cause of action.

Although the lives of public figures may be generally considered to be legitimate public interest, there are certain elements to a public figure’s life that are so private as to be considered beyond legitimate public interest. Publication of these kinds of facts is actionable. See Diaz v. Oakland Tribune, Inc., 139 Cal. App. 3d 118 (1983).

In addition, certain private facts about involuntary public figures can be disclosed so long as those facts are newsworthy.

Further, facts about someone who was formerly a public figure but is no longer in the public eye are not actionable so long as those facts are considered newsworthy.

Finally, as with intrusion upon seclusion, a cause of action for disclosing private facts requires proof of causation.

As with intrusions, consent is a complete defense to public disclosure of private facts. Where the plaintiff himself divulges private information to the defendant, the general rule is that the defendant will not be liable for disclosing those facts.

However, if the defendant is under a legal obligation not to disclose those facts, he can be sued for the disclosure.

Unlike defamation, truth is never a defense to a suit for public disclosure of private facts. See Brisco v. Reader’s Digest Association, 4 Cal. 3d 529 (1971). The laws regarding public disclosure of private facts were established to protect the plaintiff from public embarrassment. That purpose is defeated when the defendant discloses private facts about the plaintiff, especially if those facts are true. Thus, truth is not a defense.

Thanks to the constitutional rights of free speech and freedom of the press, the media enjoys certain privileges in regard to public disclosure of private facts.

Finally, as far as damages go, the same rule that applies for intrusions applies here as well.