Everyone has secrets. Stated the way a court would describe the same thing - everyone has facts that they don’t want the public to know. Within the law of privacy the Courts recognize that some secrets deserve protection and provide a remedy for the publication of private facts.
To prevail on a claim for the disclosure of private facts a plaintiff must prove that a private fact, not of legitimate concern, has been communicated to the public and the publication is highly offensive to a reasonable person.
California adds another hurdle. In California it is not enough to prove that the publication is offensive, you must prove that the defendant published private facts “with reckless disregard for the fact that reasonable men would find the publicity highly offensive.”
Let’s break it down. First the fact must be a private fact. If you’ve already posted or tweeted your secret – it isn’t private (even if you don’t have very may friends or followers). Examples of private facts include information about medical conditions (HIV, herpes, STDs), sexual orientation, financial woes and, always a crowd pleaser, sex tapes.
Next, the fact must not be of legitimate public concern. When determining whether a fact is of legitimate public concern, the courts consider the social value of the information, the extent of the intrusion and whether the fact is newsworthy.
Communicated to the public means just what one would think it means. The beans have been spilled, the cat is out of the bag … you get the picture.
Finally, in our TMZ, National Enquirer world, the bar for a reasonable person to find the publication of a private fact to be highly offensive seems to be re-set higher each year. As we become more accustomed to a society with reduced privacy, we are less offended by the publication of someone else’s secrets.
In future posts I will talk about specific lawsuits involving private facts.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.