Publication of Private Facts: Explanation For Non-Lawyers

publication of private facts
When can you use the tort of publication of private facts?

Let’s say – for argument’s sake – there was a disease known as GOHO Disease. A wildly misunderstood ailment, GOHO is the kind of sickness that invites gossips and judgment alike. Now, let’s say you contracted GOHO and told a friend. Then, a few years later, you and said friend fight; seeking revenge, your former-bestie posts your GOHO secret on his Facebook page.

In this imaginary example, can you sue for defamation?

Truth be told, no, under these circumstances, you probably wouldn’t win a defamation lawsuit? Why? Because defamation (slander and libel) has to do with lies. If a statement is true, by definition, it can’t be defamatory because defamation of character is about FALSE statements of fact. The operative word for the purposes of this discussion is “false.”

BUT! There is legal hope. Just because you can’t use the tort of defamation doesn’t mean you can’t use other torts.

An Alternative To Defamation: Public Disclosure of Private Facts

When the issue at hand is a GOHO-like disease — or another accusation of moral turpitude — “public disclosure of private facts” is the tort to use in most situations. Though there is no federal standard, nearly every state has a publication of private facts statute. And while, in many ways, it’s a close cousin to defamation and false light, what makes the publication of private facts tort unique is that the statements under review can be true.

Elements of Public Disclosure of Private Facts

Now, if you’re looking to legally pummel a foe for gossiping about you, slow your roll. Like every other interpersonal communication tort, publication of private facts has its limits. In order for a judge to wave through a case, he or she must prove that:

  1. The defendant in the case publicized “private facts” (e.g., sexual orientation, financial troubles, health status, social security number, confidential phone number, etc.) of no legitimate public concern;
  2. The statement(s) in question were in no way newsworthy;
  3. The information reached a bunch of people and was not just a gossipy e-mail between two individuals; and
  4. The statement(s) in question would be “offensive” to a reasonable person.

Other publication of private fact stipulations:

  1. Originality is essential in publication of private facts cases. If the defendant can prove that the objectionable information was already publicly available, then it’s very difficult for a publication of private facts plaintiff to win.
  2. Only individuals can sue for publication of private facts, not companies. Companies can use various trade libel, business misappropriation and trade secret torts instead.
  3. Dead people’s families or estates cannot sue for publication of private facts on behalf of the deceased. Once a person is dead, all their dirty secrets can flood the airwaves. IF, however, a given “private fact” affects a living family member, then the estate or family can sue.
  4. Time often factors into publication of private facts cases involving past criminality. While some, non-violent, crimes may be newsworthy in the immediate aftermath of its happening, they become less so as the years tick away – especially if the individual has a proven rehabilitation record.
  5. The statute of limitation for publication of private facts is between 1 and 3 years.
  6. The most popular defense against publication of private facts is consent – which is a complete defense. In other words, if the defendant can say to the plaintiff, “you told me I could reveal this information or implicitly implied that I could share this information” then the plaintiff will have a very tough time winning.

“Outing”: A Common Publication of Private Facts Lawsuit

Many people use the publication of private facts tort in sexual orientation and preference cases – or “outing” lawsuits. Currently, a nationwide judicial consensus on the matter doesn’t exist. But perhaps the most famous case involving publication of private facts and the question of “outing” was Sipple v. Chronicle Publ’g Co. In short, Oliver Sipple stopped an assassination attempt on President Ford in 1975. In reporting the incident, two newspapers mentioned Sipple’s homosexuality. He sued for publication of private facts. In the end, though, the judge sided with the press, saying that Sipple made his sexuality “open to the public eye” by participating in gay pride events and maintaining a public friendship with high-profile gay activist Harvey Milk.

We like to think of the law as unemotional. But, right or wrong, civil law is in large part about cultural consensus. Take, for example, torts like publication of private facts. It requires jurists and judges to determine what “a reasonable person” would think. That leaves a lot of room for interpretation and personal morality.

So what does all this talk of culture and the law have to do with publication of private facts? Simply this: the general cultural tenor of your state may determine the outcome of your publication of private facts case. Because, as they say, “one man’s Victoria Secret catalog is another man’s pornography.”

From The Second Restatement of Torts § 263D

Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part. Thus, he must expect the more or less casual observation of his neighbors as to what he does, and that his comings and goings and his ordinary daily activities will be described in the press as a matter of casual interest to others. The ordinary reasonable man does not take offense at a report in a newspaper that he has returned from a visit, gone camping in the woods or given a party at his house for his friends. Even minor and moderate annoyance, as, for example, through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a cause of action under the rule stated in this Section. It is only when the publicity given to him is such that a reasonable person would feel justified in feeling seriously aggrieved by it that the cause of action arises.

Speak With A Lawyer About Publication of Private Facts Case

If you’re considering suing for publication of private facts, but are unsure if you have a solid case, get in touch with Kelly / Warner Law today. Our legal practice focuses on all things reputation-related, including trade libel, defamation (slander and libel), unfair business competition and false marketing. Even if the tort of publication of private facts won’t work for your particular case, other options may.

Pick up the phone, send an email or Skype – whichever you prefer. But be sure to get in touch soon to fix your reputation problem. We’ve turned things around for other individuals and businesses – we can do the same for you, too.

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