Publishing highly personal and embarrassing information about another, even if completely true

In some states, you may be sued for the dissemination of intimate information about a person, even if true, under the privacy tort of public disclosure of private facts, sometimes referred to as the embarrassing-facts tort or private-facts tort. The Restatement (Second) of Torts defines this cause of action as a publication of private information that “(a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.” In other words, the disclosure of very personal information, a disclosure unjustified by the newsworthiness, or lack thereof, of the information is an invasion of privacy. Note that the embarrassing information revealed must be private, meaning it is not in the public domain or otherwise generally known. 

Unlike defamation, truth is not a defense in private-facts cases. Also unlike defamation (but like the sister privacy tort of false light), widespread dissemination of the information is required in a private-facts claim. It is worth noting, however, that at least one court has found that publication of the private fact to a small group of people, about half a dozen or so, is sufficient to satisfy this standard when the means of publication is via the Internet, including electronic mail.

In that case, titled Peterson v. Moldofsky, a federal judge in Kansas refused to dismiss a private-facts lawsuit against a man who e-mailed pictures of his ex-girlfriend engaged in various sex acts with two other people to the woman’s mother, ex-husband, ex-in-laws, boss and coworkers. While the judge noted that the ex-girlfriend’s mother would likely not distribute the incriminating photos to the public, “the Court cannot, as a matter of law, say that her ex-husband, or any of the other recipients for that matter, will not. With one simple keystroke, a recipient of the email could, at least theoretically, disclose the pictures to over a billion people,” it held.

As a brief recap, you may be liable for invasion of privacy by publication of private facts if you publish information that is:

• so personal and intimate that its disclosure would offend a reasonable person, even if the information is wholly true;

• not generally known to the public;

• not newsworthy; and

• widely communicated, keeping in mind that publication through e-mail could qualify as such.

Because newsworthiness is a defense to private-facts claims, you can help protect yourself from liability by publicizing matters that are newsworthy. While this is a difficult determination for even the most seasoned journalists, courts consider several factors when deciding whether published information is newsworthy, including the social value of the facts published, the depth of the publication's intrusion into ostensibly private affairs and the extent to which the person about whom private facts were revealed voluntarily assumed a position of public notoriety. Applying this test, a federal appeals court in California ruled that a jury could find that a horse-racing association's press release disclosing the true identity and location of a participant in a federal witness protection program and those of his wife and son was not newsworthy as to one or more of them. The extent to which the individual convicted of felonies for fixing horse races voluntarily exposed himself to public notoriety was not the same as that of his wife and son, the court noted.

Moreover, because publishing information that comes from a public record, such as a birth certificate, police report or judicial proceeding usually does not give rise to a private-facts claim, you should try to rely on such official reports as your sources whenever possible. Note, however, that such reliance does not guarantee protection: A federal court in Minnesota recently held, for example, that a metropolitan airport commission's online publication of an individual's social security number in connection with a police report and arrest record relating to the individual was sufficient to state a claim for public disclosure.

Finally, in addition to newsworthiness, a subject's consent to publication may also shield a publisher from liability in a private-facts case. It is particularly important for bloggers and other online content providers to identify themselves and clearly state to the interviewees that the information they provide may be published or broadcast. That's because the general rule that people who talk to a reporter give implied consent for use of their names because they should anticipate publication does not apply if the people do not understand whom they are talking to and how their statements may be used.