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The author is with Schiffer & Buus, APC, Costa Mesa, California.
Chief Justice Earl Warren once foretold that “the fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Yet, these days, everyone seems to crave public notoriety and celebrity of any sort, don’t they? YouTube is packed to the gills with candid (and not so candid) moments from those just waiting to share their private lives with anyone who happens to pass by their link and click “play.” Reality shows, cooking shows, game shows, daytime talk shows—they are all filled with would-be celebrities clamoring for their 15 minutes of fame. Electronic communications of all types inundate our lives now more than ever and make those moments possible.
But what about those who agree to participate in a broadcast on the specific condition that their identity not be revealed? Do they have privacy rights, or do those rights disappear the moment they agree to sit in front of the camera? And what if the interviewee is a former prison gang member who has intimate knowledge of notorious and dangerous gang members but who has been earning his living as a police informant, having decided to turn his life around and get away from gang life? Not only could disclosure of his identity compromise his ability to make a living, but it could cost him his life. Is he entitled to have his identity remain private as he requested—even though he knew the cameras were rolling? Well, the tort of public disclosure of private facts is alive and well and living in the Ninth Circuit. InJohn Doe v. Gangland Productions, Inc., 730 F.3d 946 2013 LEXIS 19102 (9th Cir. 2013), the court found that the police informant’s identity was not of legitimate public concern and allowed his claim against the media defendants who aired his identity during the broadcast to proceed.
One of four common-law invasion-of-privacy torts as defined in the Restatement (Second) of Torts, public disclosure of private facts is founded on the publicizing of a private matter that would be highly offensive to a reasonable person and not of legitimate concern to the public. Shulman v. Group W. Prods., Inc., 18 Cal. 4th 200, 215 (1998). Media entities, such as the Gangland defendants, typically avail themselves of the defense of “newsworthiness” when faced with this claim in order to attack the requirement that the private fact not be of legitimate concern to the public. That is to say, media defendants maintain that if the dissemination is of truthful, newsworthy material, it is not actionable as a publication of private facts. But what is considered newsworthy for purposes of this defense?
“Newsworthiness” is typically evaluated under a three-part standard in which the trier of fact weighs the social value of the facts published, the depth of the publication’s intrusion into private affairs, and the extent to which the party voluntarily assumed a position of public notoriety. Capra v. Thoroughbred Racing Ass’n of N. Am., Inc., 787 F.2d 463, 464 (9th Cir. 1986). For that reason, public figures typically have far less privacy. In fact, almost any truthful commentary on public officials or public affairs, no matter how serious the invasion of privacy, will most likely be subject to the newsworthiness defense. However, for every would-be reality show personality who voluntarily opens her personal life to public scrutiny in an attempt to render herself newsworthy (yes, Kim Kardashian, I am talking to you), courts have found that the disclosure of the identities of minors, victims of crimes, and those who have not otherwise volunteered themselves into the public limelight should not be deemed newsworthy, and have allowed claims for public disclosure of private facts to proceed in those instances.
And what about that police informant in Gangland? The Ninth Circuit found that he had not volunteered to have his identity made public (in fact, he had conditioned his participation on the promise that it would not be made public) and that his knowledge of gang activities was not sufficient to deem his identity newsworthy. So he gets to proceed with his claims against those media defendants and have a jury decide his case. Now that is an offer he can’t refuse.