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    Personal Injury Division

    Public Disclosure of Private Facts: Law, Claims & Defenses in California

    Under California law, the public disclosure of private facts is defined as (1) a public disclosure of (2) private facts about an individual (3) that would offend the average person, that (4) was not of legitimate public concern; and (5) where defendant published private facts with reckless disregard for their truth or falsity.

    A few common examples of public disclosures of private fact include:

    • Johnny posts naked pictures of Sarah, without her consent, on his Facebook newsfeed
    • Sally posts on Twitter that her ex-boyfriend got diagnosed with herpes
    • A news station broadcasts video on the evening news of paramedics trying to revive a man post-heart attack

    A person in California typically has a statute of limitations of one year, from the date of disclosure, to file a claim of private disclosure of public fact.

    The compensatory damages a plaintiff may recover in these actions will ordinarily depend on the specific facts of a case. Some of the more common examples of damages, however, include compensation for:

    • Loss of reputation, shame and hurt feelings,
    • Damage to the plaintiff’s trade or occupation, or
    • Loss of business income resulting from the disclosure.

    To help you better understand right of privacy laws, our California personal injury lawyers discuss the following, below:

    Two people working on a laptop where the screen reads "privacy policy"

    Only people, and not corporations or other business or social organizations, may sue on a claim for public disclosure of private fact.

    1. Who can file a lawsuit for public disclosure of private facts?

    Only people

    Only people, and not corporations or other business or social organizations, may sue on a claim for public disclosure of private fact.1

    Only living people

    Publication of private fact is a type of invasion of privacy, and a person can’t invade the privacy of a dead person. Thus, an estate can’t sue for publishing private facts about someone deceased.2 This is unless the publication took place before the person in question died.3

    2. What are the elements of a claim?

    In California state law, there are five elements to support a claim for public disclosure of private facts. The elements for this cause of action are:

    1. There is a public disclosure;
    2. That concerns private fact;
    3. The disclosure is one that would offend the average person;
    4. The disclosure was not of legitimate public interest; and,
    5. The defendant published private facts with reckless disregard for their truth or falsity.4

    What is a public disclosure?

    A disclosure is “public” if it’s made to either:

    1. The public at large5; or,
    2. So many people that the matter must be regarded as likely to become public knowledge.6

    Clear examples of public dissemination include publications in:

    • Books7
    • Magazines8
    • Newspapers9
    • Radio or television broadcasts10
    • Motion pictures11

    In the past, only written statements (and not oral statements) were considered public disclosures. Today, however, both written and oral statements constitute public disclosures.12

    What is a private fact?

    A private fact is an intimate detail of someone’s personal life that is not generally known.13 The precise test for determining what is and is not private information is typically left to the jury to decide.14 And, the jury makes its decision based on what a reasonable person of ordinary sensibilities and reflecting community mores would consider private and worthy of protection. One’s medical history or sexual orientation typically qualifies as private subject matter.

    A question that often arises is when, if ever, a public fact reverts back to a private fact. There is no clear test for when this happens.15 As a general rule, if a fact that was once public is still of public importance, then the information remains public and does not revert back to private status.

    What about information gathered from public records?

    Persons generally cannot be held liable in an action for public disclosure of private facts if they publish:

    1. Truthful information; and,
    2. The information was gathered from government records that are open to public inspection.16

    Please note that this rule has only been applied to information gathered from court records. However, defendants can likely argue that it should also apply to other governmental records as well.

    Are photographs considered private facts?

    Photographs can be private facts in public disclosure of private fact cases. However, courts generally rule that they’re not private if taken in a public or semi-public setting.17

    8 people pointing fingers at a distressed woman - public disclosure of private facts is a tort for which a victim can bring a lawsuit in California

    The California Supreme Court has asserted that public facts must be so offensive as to shock the community’s notions of decency.

    When is a disclosure of fact considered offensive?

    A plaintiff bringing a public disclosure of private facts case must prove that the disclosure was offensive to the average person. Most California courts often imply that this element is established, rather than put forth a clear test on how a plaintiff can prove it.18

    It’s noteworthy though that the California Supreme Court has asserted that public facts must be so offensive as to shock the community’s notions of decency.19

    When is a disclosure not of legitimate public concern?

    California law requires plaintiffs in these cases to show that the published facts were not a matter of legitimate public concern. This element has also been articulated as the plaintiff must show that the published facts had no newsworthiness.20

    Courts look to three factors for help in deciding whether facts are of legitimate public concern. These are:

    1. The social value of the facts;
    2. How deep the disclosure violated a person’s private affairs; and,
    3. Whether the plaintiff voluntarily assumed a position of public notoriety.21

    California law also states that courts shall also consider the customs and conventions of the community.22 Further, the morbid and sensational prying into private lives for its own sake is generally considered not newsworthy.23

    As a general rule, courts will usually find a legitimate public concern where the media is reporting on recent events and news that have an immediate public interest.24

    When does a defendant publish facts with reckless disregard for their truth or falsity?

    A plaintiff must prove this final element in order to win in a public disclosure of private facts action.

    To prove the element, the plaintiff must show more than the defendant was just wrong in believing that the disclosure was not offensive. The plaintiff must prove that the defendant gave serious thought as to the offensiveness of the facts disclosed but decided to disclose them anyway.25

    The showing of this element often focuses on the defendant’s state of mind at the time he disclosed the facts.26

    3. What defenses can an accused person assert?

    There are three common defenses to an action involving the public disclosure of private facts. These are:

    1. The plaintiff did not prove every element within his claim
    2. The facts disclosed were true gathered from public records (see 2.2.1 above)
    3. The defendant consented to the disclosure

    As to consent, it’s always advisable for a person disclosing private facts to gain consent to do so. Further, it’s advisable to have the consent in writing.

    Please also note that the age of majority in California is 18. This means that if someone wants to disclose private facts regarding anyone under 18 years of age, they should obtain the consent of that person’s parent or guardian.

    judge seated at a desk with gavel in hand

    If a plaintiff is successful in his action for the public disclosure of private facts, that party may recover damages.

    4. What damages can a plaintiff recover?

    If a plaintiff is successful in his action for the public disclosure of private facts, that party may recover damages.

    In general, a plaintiff may be awarded three types of damages. These include:

    1. General damages, which are damages for the plaintiff’s loss of reputation, shame, and shame;
    2. Special damages, which are damages to the plaintiff’s property, trade, occupation, or business income; or,
    3. Punitive (exemplary) damages, which are damages awarded in the discretion of the court or the jury, to be recovered in addition to general and special damages, and to be awarded for the sake of example and by way of punishing a defendant.

    The specific type(s) of damages a plaintiff may be awarded will most likely depend on the facts and circumstances of a given case.

    5. Is there a statute of limitations?

    The answer to this question is not entirely clear. However, most California courts state that a plaintiff has one year to file a claim for publication of private facts.27 Further, this one-year period begins from the date of disclosure.28

    6. What about the rights to free speech?

    A claim for publication of private facts appears to restrict a person’s right to free speech or the freedom of the press. Granted, while we enjoy this First Amendment right, it’s not absolute. The United States Supreme Court, in a long line of cases, has placed limitations on certain speech and expressions when privacy interests take precedence.

    7. Are there causes of action?

    There are causes of action related to the public disclosure of private fact, such as:

    1. Lawsuits for the harm to a person’s reputation;
    2. Criminal invasion of privacy; and,
    3. Invasion of privacy by false light.

    7.1 What are lawsuits in California that involve harm to a person’s reputation?

    A public disclosure of private fact claim is one example of a lawsuit where a person in California sues for harm to his reputation. Two other examples include defamation and California’s “business disparagement law.”

    Defamation

    Defamation in California consists of false statements that harm another’s reputation. If the statements are verbal they are called “slander.” If made in writing, they are known as “libel.”

    Whether a plaintiff can successfully sue under California’s defamation laws often depends on whether the plaintiff is a public figure (such as a movie star or professional athlete), a business or a private citizen. Private citizens have greater protection from defamation than people who are in the public eye.

    In either case, however, defamation involves:

    1. An untrue statement,
    2. That was damaging to the plaintiff’s reputation,
    3. Made to someone other than the plaintiff (“published”),
    4. With knowledge of the statement’s falsity or failure to use reasonable care to ascertain its truth
    6 people pointing thumbs down at a crying man

    California law makes people liable for making derogatory statements about a business to discourage others from dealing with it.

    Business disparagement

    California law makes people liable for making derogatory statements about a business to discourage others from dealing with it. This tort is known as “commercial disparagement” or “business disparagement” or “trade libel.”

    Although like California’s law on defamation, the law on business disparagement exists to protect the financial reputation of a business (as opposed to someone’s personal reputation). While it exists primarily to prevent unfair competition between businesses, it can also be brought against a customer.

    Criminal invasion of privacy

    Penal Code 647(j) PC is California’s criminal “invasion of privacy” law. PC 647(j) makes it a misdemeanor to violate someone’s right to privacy in any of three specific ways:

    1. Using a device such as a telescope or binoculars to invade a person’s privacy;
    2. Secretly photographing or recording a person’s body under or through his or her clothing for the purpose of sexual arousal or gratification; or
    3. Secretly recording or photographing someone in a private room in order to view that person’s body or undergarments

    A person found guilty of violating PC 647(j) is charged with a misdemeanor. A misdemeanor is punishable by:

    • Up to six (6) months in county jail, and/or
    • A fine of up to $1,000.29

    Invasion of privacy by false light

    California’s “false light” privacy law is a common law privacy tort like defamation.

    It creates a right to sue when someone knowingly or recklessly creates publicity about another person in a way that unreasonably portrays the other person in a false light.

    If a plaintiff is successful on a false light claim, he may be entitled to similar damages to those awarded in the publication of private fact claims.

    False light actions are sometimes contemplated when a person discovers that someone lied about them on the internet and they wonder what they can do.30

    Legal References

    1. James v. Screen Gems, Inc. 174 Cal. App. 2d 650. See also California Civil Jury Instructions CACI No. 1801; see also Restatement (Second) of Torts 652D.
    2. See same.
    3. See same.
    4. Shulman v. Group W. Prods, Inc., 74 Cal. Rptr. 2d 843. See also Briscoe v. Reader’s Digest Ass’n, 4 Cal. 3d 529 (1971), overruled on other grounds by Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004); see also Virgil v. Time, Inc., 527 F.2d 1122, 1129 (9th Cir. 1975).
    5. Forsher v. Bugliosi, 26 Cal. 3d 792.
    6. Schwartz v. Thiele, 242 Cal. App. 2d 799.
    7. Forsher v. Bugliosi, supra.
    8. Briscoe v. Reader’s Digest Ass’n Inc., supra.
    9. Kapellas v. Kofman, 1 Cal 3d 20.
    10. Smith v. Nat’l Broad Co., 138 Cal. App. 2d 807.
    11. Melvin v. Reid, 112 Cal. App. 285.
    12. Ignat v. Yum! Brands, Inc., Cal. App. 4th 808.
    13. James v. Screen Gems, Inc., supra.
    14. Briscoe v. Reader’s Digest Ass’n, Inc., supra.
    15. Melvin v. Reid, 112 Cal. App. 285; and, Werner v. Times-Mirror Co., 193 Cal. App. 2d 111.
    16. Gates v. Discovery Communications, Inc., 101 P.3d 552.
    17. Gilbert v. Hearst Pub. Co., 253 P.2d 441.
    18. Forsher v. Bugliosi, supra.
    19. Briscoe v. Reader’s Digest Ass’n, Inc., supra.
    20. Shulman v. Group W Prods, Inc., 18 Cal. 4th 200.
    21. Kapellas v. Kofman, supra.
    22. Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040.
    23. See same.
    24. Briscoe v. Reader’s Digest Ass’n, Inc., supra; see also Diaz v. Oakland Tribune Inc., 139 Cal. App. 3d 118 (Cal. Ct. App. 1983).
    25. Briscoe v. Reader’s Digest Association, Inc., supra.
    26. See same.
    27. See California Code of Civil Procedure Section 340.
    28. See same.
    29. Penal Code 647. See also Penal Code 19: “Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”
    30. See Gill v. Curtis Publishing Co., 38 Cal. 2d 273; also see CACI no. 1803 re. Appropriation of Name or Likeness.
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