Question:
A legal claim that private facts have been wrongfully published generally requires that the facts at issue were not previously public. Does that mean that if truthful personal information about a private person, such as financial or medical data or an ancient shoplifting arrest is posted in some obscure location on the Internet, perhaps within a database or deep inside a social networking site, that anyone can republish it without worrying about a private facts claim? In other words, once truthful information has been publicly accessible online, is it fair game for re-publication by a blogger or citizen journalist or anyone else?
Response By → Levine Sullivan Koch & Schulz:
(Posted on September 20, 2008)
Overview
Historically, truthful information that is not kept private has been fair game for republication, even when the information is about a private (i.e., non-famous) person. Technology has altered the legal landscape somewhat, however. Both the pervasive nature of the Internet and technological glitches resulting in accidental disclosure of information have led courts to alter this general rule in some circumstances where sensitive personal information, like medical or financial information, is at stake. As a result, there is no easy, clear answer to the hypothetical question posed above. A general understanding of the law governing the disclosure of private facts should, however, assist a citizen journalist in assessing the risk presented by republishing a given piece of information found on the Internet.
Most states make the “unwarranted publication of intimate details of a person’s private life” unlawful, although the precise contours of the law governing such claims vary from state to state. Liability for this kind of invasion of privacy primarily turns on whether the person whose data is disclosed has a reasonable expectation of privacy in that data. This, in turn, can depend on a variety of factors, including the nature of the information, the context in which it was initially revealed, and the extent of its initial disclosure. Even where a person has a reasonable expectation of privacy in the facts disclosed, however, there can be no liability if the information is of legitimate concern to the public.
Public Disclosure of Private Facts
A person suing for public disclosure of private facts is required to prove that another person (1) gave publicity (2) to a private fact (3) that is not of legitimate concern to the public, where (4) such disclosure is highly offensive to a reasonable person. In the hypothetical scenario posed above, the blogger or citizen journalist is giving publicity to the information, and the disclosure would arguably be “highly offensive” to any reasonable person given the sensitive, personal nature of the information. (The categories of information that most often give rise to this kind of invasion of privacy claim include mental and physical health, sexual relations and orientation, family matters, status as a crime victim, and personal financial matters). Therefore, the likely battleground in any such lawsuit would be the second and third elements—whether the facts can truly be considered “private” when they previously have been posted on the Internet, and whether they are of legitimate concern to the public.
What Makes a Fact “Private”?
Information is recognized by the law as being “private” when a person has a reasonable expectation of keeping the matter private. A person’s reasonable privacy expectations change depending on the nature of the information and how it was disclosed:
(1) Public Records
At one end of the spectrum - the least private end - is information in official government records. One does not have a reasonable expectation in the privacy of information contained in public records, and thus such information is virtually always fair game for republication. This is true even where the information is not ordinarily made accessible to the public, and the initial disclosure is inadvertent or in violation of the law.
The United States Supreme Court has held that the publication of truthful information contained in official public records cannot be punished absent “a state interest of the highest order.” And the Court was not kidding when it said “highest order”; it even rejected an invasion of privacy claim based on a newspaper’s publication of the name of a 17-year-old rape and murder victim - which it obtained from a review of an indictment - even though a state statute outlawed publication of that information. Most courts have held that this principle applies despite the passage of time; even information in “ancient” public records does not revert to private status.
Suffice it to say, therefore, that a person can rarely successfully sue for invasion of privacy where facts contained in public files are published (or, as in our hypothetical, republished). So, for instance, the person in the hypothetical above could not successfully sue for publication of the ancient shoplifting arrest since the information is contained in a public record (even if the blogger did not obtain the information from the official public record).
This principle has also been held to apply even where once-private information makes its way into the public record. One court held, for example, that medical information that was publicized one time at an open hearing was no longer private.
(2) Publicized Information
Even where the matter disclosed is not in a public record, it may have otherwise become sufficiently public that it enjoys no privacy protection under the law. Courts have long held that “there can be no privacy with respect to a matter which is already public or has previously become part of the ‘public domain.’” Thus, when a person voluntarily publicizes information about herself to any significant number of individuals, even in a limited way, she may forfeit her right to privacy in that information.
For example, one court held that a nude dancer had no basis for complaining about a newspaper’s publication of photos of her when she originally circulated the photos to publicize herself and the clubs where she was appearing. Another court reached a similar result when a newspaper republished a person’s name and address only after he previously disclosed the information in numerous letters to the newspaper and to a congressman. And the disclosure that the man who saved President Ford’s life was homosexual did not violate his privacy because he had marched in gay parades and acknowledged his sexual orientation to a large circle of friends.
Similarly, information that is in public view for anyone to see can be republished. In these situations, a person also has no basis for complaining of further publicity because the information is part of the “public domain.” In one case that makes the point clear, a court held that the publication of a photograph of two young women at a rock concert with body paint on their exposed breasts was not unlawful, even though the concert was on private property, because the women’s activities were “open to the public eye.”
Indeed, even the involuntary disclosure of information can diminish one’s expectation of privacy in it. Once the information has been pervasively publicized, or if it is open to the public eye, courts usually will not recognize a right of privacy in that information. So, for instance, a citizen journalist probably would not be held liable for posting a video of an emergency rescue made in a hurricane, even where that rescue involved medical procedures, so long as the rescue was made in a public area in plain view and not in the confines of an ambulance or helicopter.
(3) Limited Disclosure
The trickiest situation arises where information is not widely disclosed. A matter may remain private where it is revealed only to a single individual or to a small, select group of people. Courts sometimes see a legally significant difference between this type of limited or selective disclosure and the disclosure of the same facts to members of the public at large.
This doctrine of limited disclosure becomes particularly important in circumstances, suggested by the hypothetical, where it appears that information of a sensitive personal nature has been unintentionally disclosed. To the extent that such information is inadvertently disclosed or left open to a large audience, courts will often find a valid privacy expectation in it, even if it has been published on the Internet to a theoretical worldwide audience.
Thus, for example, a person’s disclosure of his financial data to an online banking service, or posting his medical data on a pharmaceutical Web site, might not be viewed as transforming the information from private to public - even if that information is viewable in some remote place on the Internet. Indeed, at least one blogger has been prohibited from disclosing patients’ personally identifying medical information that she found online. The blogger said that she had discovered the information on a publicly available Web site created by a medical organization. The organization acknowledged the data posting, but claimed both that it was inadvertent and that a regular Internet search would not have pointed a user to the patient’s information. The court found these factors important to the analysis and rejected the blogger’s contention that the information had lost its private character.
Similarly, another court held that the anonymous Internet posting of a small segment of an explicit video portraying sexual conduct between former rock star Bret Michaels and actress Pamela Anderson did not render the contents of the video fair game for republication by an adult entertainment business. The court held that because the video had not been viewed by a wide audience before it was removed from the web, and Michaels and Anderson had not left their conduct open to public view, they had a reasonable expectation of privacy in the images on the video.
When Is a Fact Newsworthy?
Even if the information disclosed is a private fact, the First Amendment forbids liability for the disclosure if the matter is “newsworthy” - in other words, if it is of “legitimate public concern.” Unfortunately, the determination of what matters are of legitimate public concern is the most problematic and unsettled aspect of the law of privacy.
Most courts use a broad definition of newsworthiness, limiting its scope only when information is not truly reported for any purpose other than “prying” into the private affairs of another:
In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of community mores. The line is to be drawn when publicity ceases to be the giving of information to which the public is entitled and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.
These courts look to see (1) whether the publication overall concerns a newsworthy topic, and (2) whether each fact disclosed in the publication bears some nexus to that topic - in other words, whether the fact was included “for its own sake” and not to advance the point of the overall publication.
Thus, one court held that it was not unlawful for a news report about a doctor’s malpractice claims to reveal facts about her psychiatric history and marital problems because those facts were “substantially relevant to the newsworthy topic of policing the medical profession.”
Similarly, another court was called upon to determine “whether the possibly private facts complained of - broadly speaking, an accident victim’s appearance and words during the rescue and evacuation - were of legitimate public interest.” The court concluded they were: “the broadcast video depicting” the accident victim’s “injured physical state (which was not luridly shown) and audio showing her disorientation and despair were substantially relevant to the segment’s newsworthy subject matter.” (The accident victim wasn’t clearly identifiable in the video segment and only her first name, “Ruth”, was stated.)
Where the overall focus of a report is further removed from the particular facts at issue, courts are less likely to find those particular facts are “newsworthy.” For example, one court allowed a privacy claim to proceed where the person objected to the use of “before” and “after” photos of her face lift to illustrate a television report on plastic surgery. While the public “undoubtedly has an interest in plastic surgery,” the court found that the use of the particular photos “neither strengthened the impact nor the credibility of the presentations nor otherwise enhanced the public’s general awareness of the issues and facts concerning plastic surgery.”
In sum, many courts give deference to reporters and editors to choose what details will most effectively contribute to the credibility and persuasive value of a publication, and therefore what details are “newsworthy”:
That the broadcast could have been edited to exclude some of the person’s words and images and still excite a minimum degree of viewer interest is not determinative. Nor is the possibility that the members of this or another court, or a jury, might find a differently edited broadcast more to their taste or even more interesting. The courts do not, and constitutionally could not, sit as superior editors of the press.
Other courts have proven less deferential to the news media, however, and a blogger or citizen journalist unaffiliated with a traditional news media outlet might receive less deference still.
The Bottom Line
Whether a citizen journalist or blogger may republish sensitive, private information about a private person found in an obscure location on the Internet is a “totality of the circumstances”-type analysis that may depend on a variety of factors, including:
- the nature of the information
- the manner in which it was placed on the Internet
- whether the information is of public record
- how “public” the information has become by virtue of the place where it resides on the Internet
- whether the information is of legitimate concern to the public - i.e., whether the facts disclosed bear a logical relationship to a newsworthy subject, and whether they are intrusive in great disproportion to their relevance.
From Geanne: Thank you Levine Sullivan Koch & Schulz for shedding new light on this rarely addressed, but bound to arise, issue.