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Invasion of Privacy: 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 concern is an invasion of privacy in some states. Liability often is determined by how the information was obtained and its newsworthiness.

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.

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.⁶ 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 substantial state interest.⁷

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 considered to 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 even 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.⁸

Newsworthiness: 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, in Garner v. Triangle Publications Inc.,⁹ a woman who had been involved in a car accident sued a reporter who revealed that she was living with a man who was not her spouse. That fact was not pertinent to the story, which was otherwise newsworthy, and the reporter was held liable.

Passage of time: The newsworthiness of a private fact may be affected by the passage of time. Problems occur when individuals who once may have been notorious but who since have been 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 considered to be 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. However, if the information could be considered indecent or obscene by community standards and is not central to the story, it may be safer to eliminate it.

Notes

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

7. The Florida Star v. B.J.F., 491 U.S. 524 (1989).

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

9. Garner v. Triangle Publications Inc., 97 F. Supp. 546 (S.D.N.Y. 1951).

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