Public Disclosure of Private Facts

Question 1

Tort 2?

Answer 1

Public Disclosure of Private Facts

Question 2

What two rights does the tort weigh?

Answer 2

[BALANCE BETWEEN RIGHT OF PRIVACY AND FREEDOM OF SPEECH/PRESS]

Question 3

What is PDPF Rule?

Answer 3

(1) DEFENDANT gives publicity (2) To a matter concerning PLAINTIFF’s private life, which is (3) Highly offensive to a reasonable person, and (4) Not of legitimate concern to the public (not newsworthy)

Question 4

What is a possible issue that may arise during PDPF?

Answer 4

Are the correct parties in the suit =Can mother claim PDPF for picture of son =Can Green sue Tribune, when Hospital gave Tribune permission to be in room

Question 5

Prong 1?

Answer 5

Was there Publicity?

Question 6

Two Methods for Publicity?

Answer 6

Private Method and Public Method

Question 7

What is the private method?

Answer 7

”so many people that it is “substantially certain to become public knowledge”; Email, Fax, Restricted Website [amount of people/types of people matter]

Question 8

Minority rule for the private method of publicity?

Answer 8

Special Relationship test

Question 9

What is the special relationship test?

Answer 9

If P has a special relationship with D (others that receive the private information), then Prong 1 is satisfied

Question 10

Examples of special relationships?

Answer 10

Small intimate group of co-workers–>Not company wide Book Club Soccer League Extended Family

Question 11

What is the public method of publicity?

Answer 11

Newspaper/Magazine/Internet Blog/Public Twitter Profile/”Town crier” (doesn’t matter how small the publication is)

Question 12

Other examples of the public method?

Answer 12

Front page or in the middle (probably not much difference) Small regional newspaper vs. large (probably not much difference) Other Examples -Posting a Large Sign outside of Garage: Brents v. Morgan -Making comments in a public restaurant over several days: Biederman’s of Springfield Inc.

Question 13

Prong 2?

Answer 13

Was it a private matter?

Question 14

Question for Private Matter?

Answer 14

Was the Matter Widely known, or Just Known to a few people? -sexual or medical in nature generally private… -Daily Activities generally public/public domain

Question 15

Private Matter Factors?

Answer 15

Who Is P? [Public v. Private person] Where was P? [Public v. Private place] What did P Say/do? [usually issues of sexual or medical in nature] [Public v. Private material]

Question 16

Public v. Private Person Factors?

Answer 16

Public Person -Voluntary vs. Involuntary –Sipple=Involuntary as regards Pres. Ford incident/But Voluntary as regards his out status (to the gay community) Private Person –Graham=44 y/o mother w/ 2 sons/chicken farms wife/never left alabama

Question 17

Private Place Definition?

Answer 17

“Where general public has no right to resort” BLD

Question 18

Public Place Examples?

Answer 18

Restaurant/Bar Public Park Open Air Market=NOT PRIVATE/Gill v. Hearst Avail themselves of the public? -Unoffensive Voluntary Pose in public place=NOT PRIVATE MATTER/Hearst

Question 19

Public Place Exception?

Answer 19

If conduct captured is: INVOLUNTARY, INSTANTANEOUS, and ENMESHED IN EMBARRASSING POSE

Question 20

Examples of involuntary, instantaneous and enmeshed in embarassing pose?

Answer 20

Graham Case/Fun House=YES -Female/Instantaneous/Obvious/1964 McNamara/Soccer Case=NO -Male/Not instantaneous/No one notices/1990

Question 21

Public v. Private Material Factors?

Answer 21

How many ppl told? -1 person vs. 60 ppl Who Was told? Why were they told? [Was there a public policy reason for telling?]

Question 22

Examples of when people told was still private?

Answer 22

Close friends & Family=Private Other in vitro couples=Private Support Groups=Private

Question 23

Examples of when people told was not necessarily private?

Answer 23

Private Online Groups=Maybe –Is everyone accepted? Vs. Stringent Religious Community/Cult=Maybe Reporters=Maybe –Virgil=Voluntary, but revoked consent prior=Private –Green=Said no comment, but spoke openly=Maybe Private

Question 24

Examples of when there was a public policy reason for telling private matters?

Answer 24

Safety Report –Telling police after crime=Private For own Mental Stability –Telling family/friends after trauma=Private

Question 25

Examples of when not a public policy reason for telling?

Answer 25

Columbian Judge, w/ Columbian bounty on head, told businesses who she was out of convenience=Public

Question 26

Prong 3?

Answer 26

Was it Highly Offensive to a Reasonable Person? [Higher Threshold than IUS] [Overlaps w/ Prong 4]

Question 27

HORP Rule?

Answer 27

Must expect casual observations and nosiness regarding ordinary daily activities Minor annoyances are not enough Must be Offensive/Indecent

Question 28

HORP factors?

Answer 28

When was it (standards change)? What is the material? How was it disseminated?

Question 29

Examples of HORP analysis?

Answer 29

Graham=Photograph of Naked Body (involuntarily exposed)=Yes Green=Photograph of dead/dying son=Maybe HORP Filmed being removed from Bar by False Arrest=No HORP (BUT FURTHEST THE COURT WOULD GO)

Question 30

Prong 4?

Answer 30

Was it Legitimate Public Interest (aka was it Newsworthy)? [1st amendment interest] (could be simply entertainment value) [Overlaps w/ Prong 3]

Question 31

3 Tests For “Legitimate Public Interest”?

Answer 31

Leave it to the Press Customs and Conventions Logical Nexus

Question 32

Leave it to the Press test?

Answer 32

Let the press decide Issue=Debate about who is the press

Question 33

Customs and Conventions test Rule?

Answer 33

Is it newsworthy to the custom of the community, OR Is it just morbid/sensational prying

Question 34

Examples of Customs and Conventions rule finding public interest?

Answer 34

Sipple=Newsworthy because (1) dispel public opinion that gay people are not heroic (2) Raise questions about Pres. Ford’s Discriminatory attitude Shulman=Car Accident=Public

Question 35

Logical Nexus Test Rule?

Answer 35

[Apply Customs and Conventions (above), then ask] Is Private Matter Connected enough to the Newsworthy Event?

Question 36

Majority Approach to finding there is a “connection”?

Answer 36

Does it add “something” to the reporting?

Question 37

What does something mean?

Answer 37

Does it add: Credibility Urgency Adequacy Immediacy Impact?

Question 38

Examples of the Majority Approach?

Answer 38

Something= Gilbert=including dr’s name, psych history and marital problems into article Howard v. Des Moines Reg=Names of involuntarily sterilized “strengthened accuracy” OutlierRoss v. Midwest=Rape victims name published in article about potential innocence of convicted man Shulman=Work of Medical Workers=Public –Anyone worker talks to “adds to it” Diaz=A jury may find a connection between a person being transgender and her fitness for office, even when Court can find “very little” Neff=Intoxicated Fan w/fly down, voluntarily posing, for an article about crazy Steeler’s fans=Legitimate public interest Haynes=Non-Fiction book: reporting true facts about real people is Needed to show that the problems in book are real. —Posner=Changing names is not sufficient, because it would eliminate the ability to create non-fiction books…make everything fiction

Question 39

Minority Approach to finding there is a connection?

Answer 39

Must be necessary to write/communicate information

Question 40

Examples of the Minority Approach?

Answer 40

Starving Glutton=Disease was of public interest, BUT P’S IDENTITY WAS NOT “CAN TELL STORY W/O NAME”

Question 41

Last question to ask for Newsworthy?

Answer 41

Was it an Autobiography?

Question 42

What is the autobiography rule?

Answer 42

Private Info can be published when it is sufficiently related to a broader topic of Legitimate public concern [There is a presumption that D can tell their own story, hard for Pl to win]

Question 43

What is the autobiography rule when 3rd party info is published?

Answer 43

Disclosure is protected (by 1st amm. Rights of speech) AS LONG AS there is -Sufficient Nexus between –the 3rd party private details and –Issue of Public Concern

Question 44

Examples of issues of public concern?

Answer 44

Bonome=Non-consensual Sexual contact, relationships w/unknown incurable disease

Question 45

Breach of Confidentiality Tort Rule?

Answer 45

Duty of Confidentiality –Medical professional/Atty/Counselors et al. Breached duty