Public Disclosure of Private Facts

  1. Introduction

    Public disclosure of private facts cases are generally highly fact-specific and the determinations of what is “private” and “publicly” disclosed are typically questions for a jury. The cases involving the most obvious publication, via television, indicate that a claim is difficult where the plaintiff was present and involved in the disclosure (even if it did not go as planned) and did not at the time object.

  2. Cases

    1. Doe v. Saftig, 09-C-1176, 2011 WL 1792967 (E.D. Wis. May 11, 2011)

      • Procedural Posture: Resolution of defendants’ summary judgment motion

      • Law: Wis. Stat. § 995.50(2)(a); also FCRA, due process, and negligent and intentional infliction of emotional distress.

      • Facts: Facts about plaintiff’s medical history and personal debt were improperly disclosed to those without a need to know during the interview process for a job at the police department. Disciplinary hearings regarding the improper disclosure were covered in the press (although plaintiff’s name was not disclosed). Plaintiff alleged the incident caused her stress and caused her to be unable to succeed at her job with the police department.

      • Outcome: With regard to the disclosure claim, the court agreed that medical records and information are generally considered private facts, but held that the issue of whether the facts about plaintiff were public, given her voluntary disclosure of them to others, was for the finder of fact. A reasonable person could find that the facts were private even though plaintiff had disclosed them to others. In addition, offensiveness was also a matter for the jury.

    2. Hillman v. Columbia County, 164 Wis.2d 376, 474 N.W.2d 913 (Wis. App. 1991)

      • Procedural Posture: Plaintiff appealed grant of summary judgment to defendant

      • Law: Wis. Stat. § 995.50(2)(a) and (c); also constitutional right to privacy, and negligent and intentional infliction of emotional distress.

      • Facts: Inmate brought action against county and jail employees alleging that jail employees had disclosed results of his human immunodeficiency virus (HIV) test.

      • Outcome: With regard to the disclosure claim, the court liberally construed the complaint and found that the plaintiff had stated the requisite “publicity” by pleading that the photo had been shared with people within the jail.

    3. Pachowitz v. Ledoux, 2003 WI App 120, 265 Wis. 2d 631, 648, 666 N.W.2d 88 (Wisc. App. 2003)

      • Procedural Posture: Plaintiff prevailed at trial; defendants appealed the denial of their motion to change the jury’s answer.

      • Law: Invasion of privacy and defamation

      • Facts: Plaintiff was taken to the hospital for an overdose. One of the EMT’s disclosed the incident to a woman he knew to be a friend and co-worker of plaintiff’s, who later disclosed the information to other staff at the plaintiff’s place of work.

      • Outcome: Trial court’s ruling upheld. The disclosure of private information to one person or to a small group does not, as a matter of law in all cases, fail to satisfy the publicity element of an invasion of privacy claim. Rather, whether such a disclosure satisfies the publicity element of an invasion of privacy claim depends upon the particular facts of the case and the nature of plaintiff's relationship to the audience who received the information. Here, where defendant was on notice that plaintiff did not want to be treated at the hospital where she worked, and that the friend/co-worker was a gossip, it was not unreasonable for the jury to find the publicity element met.

    4. Albertson v. Tak Communications, Inc., 1989 WL 129270 (Ct. App. Aug. 15, 1989)

      • Procedural Posture: Appeal of summary judgment dismissing plaintiff’s claims.

      • Facts: A television news crew interviewed plaintiff regarding her religion’s belief that smoking marijuana was a sacrament. The report also showed a woman’s hands rolling a marijuana cigarette. Plaintiff alleged the broadcast conveyed a false and defamatory impression of her casually and arrogantly rolling a marijuana cigarette and that the film crew’s alleged misrepresentation that they were not filming her rolling the cigarette was a violation of her privacy.

      • Outcome: Affirmed. The appellate court agreed with the trial court that because the plaintiff failed to show an injury to her reputation, she could not bring claims for defamation or invasion of privacy. Regardless of the alleged misrepresentation of the film crew, plaintiff could not recover where she could prove no damage to her reputation.

    5. Olson v. Red Cedar Clinic, 273 Wis. 2d 728, 681 N.W.2d 306 (Ct. App. 2004)

      • Procedural Posture: Appeal of summary judgment dismissing plaintiff’s claims.

      • Facts: Defendant counseling clinic released son’s records to son’s school psychologist. The records contained personal information about the mother that she had specifically not consented to release.

      • Outcome: Affirmed. The facts were not publically disclosed when they were only disclosed to one person, the school psychologist. Public disclosure “means that “the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” (citing Restatement § 652D comment a)

    6. Smith v. Dep’t of Corrections, 2005 WL 2449841 (E.D. Wis. Sept. 30, 2005)

      • Procedural Posture: Defendants’ motion for summary judgment.

      • Facts: Plaintiff reported sexual assault to co-worker and was then interviewed as part of employer’s investigation into allegations. One of the defendant investigators disclosed the sexual assault to “probably everybody” on staff at the employer and plaintiff alleged invasion of privacy resulting from public disclosure of private facts.

      • Outcome: Defendants’ motion for summary judgment granted because there was no “publication.” Publication may occur where the matter is made public by communicating to the public at large or where a “special relationship” exists between the plaintiff and the “public” to whom the information has been disclosed. The court found that plaintiff failed to prove that the information was disclosed to the public at large where the information was shared only with people involved in the investigation.

    7. Howell by Goerdt v. Tribune Entertaining Co., 106 F.3d 215 (7th Cir. 1997)

      • Procedural posture: Appeal from defendant’s successful motion to dismiss.

      • Facts: 16-year old went on national talk show with her step-mother and other members of the family. The broadcast degenerated into name-calling, and the step-mother at one point read from a police report on the step-daughter that indicated the step-daughter had “engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud behavior.” The step-daughter responded on the show, and did not ask that the reference be deleted in the 2 weeks before the show aired. She eventually sued the broadcast company for invasion of privacy.

      • Outcome: Affirmed.

      • Special Notes: The Seventh Circuit opinion, by Judge Posner, is not strictly binding on Wisconsin state courts, but contains a number of interesting points.

        • Name-calling probably does not amount to disclosure of private facts that concern the privacy tort. Those usually concern “nudity, sex, or serious but hidden physical or psychiatric problems,” although the court notes that Wisconsin’s law may be broader (citing Zinda, which involved allegations that the plaintiff was fired for lying on a job application).

        • Even if the disclosure had involved public facts, the suit would fail because the disclosure in response to plaintiff’s own behavior was privileged. Plaintiff had in essence prompted the disclosure by calling her step-mother a liar, and thus making her own character for truth-telling relevant. She “may not hide behind Wisconsin's privacy law and from that shelter pelt her stepmother with defamatory accusations with impunity.”

        • Although plaintiff was a minor at the time, the court finds that at 16, she was old enough to understand that she was appearing on a national tv show designed to elicit this kind of behavior.

        • The production company can benefit from the step-mother’s privilege because 1) it was not involved directly in the disclosure nor was it requested to remove it from the broadcast; and 2) because if plaintiff “can broadcast her own accusations to millions, she should not be able to block her stepmother from broadcasting a reply to those accusations to the same audience.”