What is Publication of Private Facts (Intrusion Upon Seclusion and Invasion of Privacy)?

Publication of Private Facts refers to information about someone’s personal life that was not revealed to the public, that is not a legitimate public concern, and the publication is not offensive to a reasonable person. For example, writing about a person’s disease status, sexual orientation, marital problems, or financial troubles could lead to liability for publication of private facts.

This civil tort is also referred to as “intrusion upon seclusion” and “invasion of privacy”

Elements of a Publication Private Facts Claim

A plaintiff must generally establish the following four elements to have a case for publication of private facts:

• Public Disclosure: The disclosure of facts must be public. The defendant must “give publicity” to the facts in dispute.
• Private Fact: The facts disclosed must be private, and not open to the public.
• Offensive to a Reasonable Person: The publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities.
• Newsworthy: The facts disclosed cannot be newsworthy. To be newsworthy is to discuss a matter of legitimate public concern.

What is the Right of Publicity?

Defenses for Publication of Private Facts

Similar to the tort of defamation, consent is a defense to a claim for publication of private facts. If the plaintiff gave oral or written consent to the publication of the disputed facts then the defendant will not be liable for the publication. The publication must not exceed the consent. Furthermore, the plaintiff that originally has the consent can revoke that consent anytime before the use of their name or photograph takes place.

A second defense is the statute of limitations for the claim has expired. This term describes the maximum amount of time the plaintiff can wait before bringing a lawsuit. In publication of private facts cases, the statute of limitations ordinarily runs from the date of first publication of the offending facts. It is common to be anywhere from one to three years. A third defense is that the private facts are newsworthy. This occurs if the facts published reasonably discuss a matter of public concern.

Damages for Publication of Private Facts

One who has established a cause of action for invasion of his or her privacy is entitled to recover damages. The three most common are:

  • The damage or harm to the defendant because of the publication.
  • The mental distress suffered if it is of a kind that normally results from such a publication.
  • The special damages experienced by the defendant because of the publication. These special damages include damages for loss of reputation or community status, damages for physical injury or demonstrable pecuniary loss, and consortium loss by the spouse.

The law of publication of private facts is complex. If you believe that you are a victim of this tort, contact the experienced internet defamation attorneys at Minc Law to evaluate your case. The laws regarding publication of private facts vary depending on the state. Call (216) 373-7706 or fill out our online contact form today to find out more information.

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