Publication of private facts

Publication of private facts

Publication of truthful information concerning the private life of a person that would be both highly offensive to a reasonable person and not of legitimate public interest is an invasion of privacy in some states. Liability often is determined by how the information was obtained and its newsworthiness, and varies from community to community, as offensiveness is a jury question.

Revealing private, sensational facts about a person’s sexual activity, health or economic status can constitute an invasion of privacy.

Reporting news events that take place in public generally does not constitute invasion of privacy. Arrests are considered newsworthy and, therefore, the press is free to accurately report them. Even a couple’s intimate moment in public, captured in a photograph, is not actionable as long as a reasonable person would not consider the picture private. Courts usually find that individuals have no “reasonable expectation of privacy” when they are in public.

Although relatively few courts have found publication of private information sufficiently offensive and sufficiently lacking in newsworthiness to impose liability on the media, there are instances when they may be liable for invasion of privacy based on the highly offensive public disclosure of private facts.

In perhaps the most well-known case, the Missouri Supreme Court ruled that Time magazine invaded Dorothy Barber’s privacy when it published a story about her unusual eating disorder, which caused her to lose weight even though she consumed large amounts of food. A photograph of Barber, taken against her will as she lay in a Missouri hospital bed, accompanied the story, which dubbed her the “starving glutton.” Because Barber’s odd condition was not contagious, there was no need to reveal her identity to the public to alert people who had been in contact with her, the Missouri court said. Thus, Time could have informed the public about her newsworthy disease without the embarrassing revelation of her identity, the court added.⁶

Public revelations about children, particularly their medical conditions and treatment, also may subject the media to liability for invasion of privacy. In 1990, Eric Foretich, the father of nine-year-old Hilary Foretich, brought a privacy claim on behalf of his daughter against Lifetime Cable Network and the BBC after the networks featured Hilary in a television documentary about child abuse. The documentary showed Hilary talking to her mother during a therapy session and demonstrating with anatomically correct dolls how her father had allegedly abused her sexually. After a federal court ruled that Foretich had stated an actionable claim for private-facts invasion of privacy, Lifetime and BBC settled with Foretich, paying him $175,000 but not admitting liability.⁷

Public records:If information comes from a public record, such as a birth certificate, police report or judicial proceeding, the media usually are not liable for reporting it. A newspaper can print a list of people who have been granted divorces, for instance, when the information is derived from court records, no matter how embarrassing it is to the individuals.⁸ However, not all information kept by public agencies is considered part of the public record.

Some states restrict the release of certain information, even though it is part of an official record, by sealing the files or restricting public and news media access to certain proceedings.

However, if the press lawfully obtains truthful information about a matter of public concern from government sources, the state may not constitutionally punish publication of the information absent the need to further a state interest of the highest order.⁹

Reporters should use caution in relying upon semi-public documents. For example, a police detective’s notes that do not become part of the official police report may not be official records. If a document relied upon by a reporter was found to be only semi-public, the reporter might not be privileged to report the information contained in it.

However, one federal appellate court has ruled that publishing information from a secret police report is not an invasion of privacy because there is no reasonable expectation that information given to the police will be kept secret.¹⁰

Passage of time:The newsworthiness of a private fact may be affected by the passage of time. Problems may occur when individuals who were once notorious but are now rehabilitated become subjects of historical commentaries that refer to their former crimes or indiscretions. Private facts published in a popular feature, such as a “25 Years Ago Today” column, could be considered an invasion of privacy if the subject is not a public figure or is deemed to have lost his public figure status.

Disclosed facts about both public officials and public figures are not subject to the passage of time rule.

Community standards:The sensibilities of the community also must be considered when determining if a private fact should be reported. The law is not designed to protect the overly sensitive.

Newsworthiness as a defense:The court may consider several factors in determining whether information published is newsworthy, including the social value of the facts published, the extent to which the article intruded into ostensibly private affairs, and whether the person voluntarily assumed a position of public notoriety.

For example, a man who saved Gerald Ford’s life by striking and grabbing the arm of an attempted assassin just as she prepared to shoot the president lost a private-facts case based on the public disclosure of his sexual orientation after a California court ruled that the man’s homosexuality was of legitimate public interest because the man’s courageous act cast often-stereotyped homosexuals in a positive light. There was also a newsworthy question about whether President Ford delayed a public expression of gratitude toward the man because of his sexual orientation.¹¹

Notes:

6. Barber v. Time, Inc., 159 S.W.2d 291 (Mo. 1942).

7. Foretich v. Lifetime Cable, 777 F. Supp. 47 (D.D.C. 1991).

8. Doe v. Sherman Publishing Co., 593 A.2d 457 (R.I. 1991).

9. The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court did not specifically identify what such a “state interest of the highest order” would be, but found that the general interest in encouraging rape victims to come forward was not sufficient in this case.

10. Scheetz v. The Morning Call, Inc., 946 F.2d 202 (3d Cir. 1991).

11. Sipple v. Chronicle Publishing Co., 201 Cal. Rptr. 665 (Cal. Ct. App. 1984).