Publicity

statue-of-liberty serious charges

UNREASONABLE PUBLICITY TO ANOTHER’S PRIVATE LIFE

§ 652D. Publicity Given to Private Life

A person who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

The elements of the tort are: (1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person and (4) is not of legitimate concern to the public. See e.g. Brown v. Mullarkey, 632 S.W.2d 507 (Mo.App. 1982); Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716 (1980). This is according to Pennsylvania’s Superior Court in Harris v. Easton Pub. Co, 335 Pa. Super. 141; 483 A.2d 1377; Pa. Super (1984).

The element of “publicity” requires 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. Restatement (Second) of Torts § 652D, comment a. Wells Thomas, supra. Disclosure of information to only one person is insufficient. Nagy v. Bell Tel. Co. of Pa., supra. See also Vogel v. W.T. Grant Co., supra (disclosure to four persons held insufficient).

There is a legal distinction between “publication” as that term is used in connection with liability for defamation, and “publicity” as it is used in a § 652D action for invasion of privacy. While the intentional or negligent communication of defamatory matter to a single person (or to a newspaper) might constitute a “publication” in the context of an action for defamation, see Restatement (Second) of Torts § 577 and comment b, that does not concern us here. The “publicity” which we here examine requires 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. Where a communication involving private facts reaches, or is sure to reach, the public, then publicity has been given to that party’s private life.

The second element requires that the publicity involve a private fact. A private fact is one that has not already been made public. Liability cannot be based upon that which the plaintiff himself leaves open to the public eye. Restatement (Second) of Torts § 652D, comment b. It also follows from the use of the term private fact that the reader or recipient of the private fact not have prior knowledge of that fact: there can be no liability where the publicity given involves facts with which the recipient is familiar.

The third element requires that a reasonable person of ordinary sensibilities would find such publicity highly offensive. In making this determination, the customs of the time and place, occupation of the plaintiff and habits of his neighbors and fellow citizens are material. Restatement (Second) of Torts § 652D, comment c. Aquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422 (1959). The act which constitutes the tortious invasion of privacy must be committed in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Nagy v. Bell Tel. Co. of Pa., supra.

The final element exempts from liability those facts which are of legitimate concern to the public, such as official court records open to public inspection. Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). This also applies to persons who, voluntarily or involuntarily, have become public figures, Restatement (Second) of Torts § 652D, comments e and f, and may also apply to certain private facts relating to those public figures, such as the life history of one accused of a sensational crime, id., comment h, and even to the members of that person’s family. Id., comment i, Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). See also Prosser, Handbook of the Law of Torts 809-12 (4th ed. 1971).

This could include the installation and use of camera, video, or other recording device without consent in a bathroom, locker room, bedroom, dressing room, tanning, salon, or other type of private area.

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