Public disclosure of private facts is one of four recognized privacy torts in American common law, alongside intrusion upon seclusion, false light invasion of privacy, and appropriation of name or likeness. Unlike defamation, which addresses false statements, the tort of public disclosure of private facts addresses the publication of true information that the law nonetheless protects from forced disclosure. If the information is private, non-newsworthy, and the publication would be highly offensive to a reasonable person, liability can attach even though the information is accurate.
Elements of the Claim
To establish a claim for public disclosure of private facts, a plaintiff must prove:
- Publicity: The defendant disclosed the information to the public or to a large number of people, not merely to a single individual or small group.
- Private facts: The information disclosed concerns matters that were genuinely private and not generally known.
- Not of legitimate public concern: The information is not newsworthy or of legitimate concern to the public.
- Highly offensive to a reasonable person: A reasonable person would find the disclosure highly offensive, not merely embarrassing or inconvenient.
The requirement of ‘publicity’ distinguishes this tort from other privacy violations. Telling one person something private is not enough. The information must reach a substantial number of people—typically through publication on a website, distribution via social media, or broadcast to a wide audience.
What Qualifies as Private Facts?
Courts generally recognize that private facts are details about one’s personal life that are not generally known by the public and that the plaintiff has kept private. Common examples include:
- Sexual behavior or orientation not previously disclosed
- Medical diagnoses and health conditions
- Financial circumstances, including debt, bankruptcy, or income
- Information shared in confidence, such as in therapy or private correspondence
- Details of family relationships, domestic violence, or abuse
Information that is already publicly known cannot be the basis of a public disclosure claim. If the plaintiff has voluntarily made information public in the past, or if the information appears in public records, the defendant will have a strong defense.
The Newsworthiness Defense
The most significant limitation on public disclosure of private facts claims is the newsworthiness defense. Courts recognize a constitutionally grounded privilege for the publication of truthful information on matters of public concern. Under this defense, a defendant may escape liability by showing that the disclosed information was newsworthy—meaning it was of legitimate public interest.
Courts apply the newsworthiness defense broadly. Information about public figures is almost always considered newsworthy. Even information about private individuals may be newsworthy if it is connected to a matter of public concern. The defense can, however, be overcome if the plaintiff shows that the specific private details disclosed had no legitimate connection to the public interest story being reported.
Public vs. Private Figures
Public figures—celebrities, politicians, executives, and others who have voluntarily thrust themselves into public life—retain a narrower zone of privacy than private individuals. Information that would support a claim by a private plaintiff may not be actionable when the plaintiff is a public figure. Even public figures, however, retain privacy rights in purely personal domains that have no connection to their public role.
Intersection with Copyright Law
Where the disclosed private information takes the form of photographs or other creative works, copyright law may provide an additional or alternative basis for a claim. If the plaintiff owns the copyright in a private photograph that was published without consent, a copyright infringement claim may be available alongside—or instead of—the privacy tort.
Remedies
Plaintiffs who prevail on a public disclosure of private facts claim may recover actual damages for emotional distress, reputational harm, and economic losses, as well as injunctive relief requiring removal of the information. Some states permit recovery of nominal damages or punitive damages in egregious cases.
Contact Revision Legal
If you believe your private information has been publicly disclosed without your consent, Revision Legal’s internet privacy attorneys can assess your claim and advise you on the available remedies. Contact us today to discuss your situation.
Online Platforms and the Spread of Private Information
The internet has dramatically amplified the harm from public disclosure of private facts. Where a newspaper article might reach a local audience and fade from memory, online publication creates a permanent, searchable record that follows a person indefinitely. Employers, business partners, family members, and strangers can find the disclosed information years after the initial publication through a simple search query.
This permanence affects both the element of publicity and the damages analysis. Courts have recognized that online publication satisfies the publicity element—reaching a substantial number of people—even for content published on sites with modest traffic, because of the potential for search engine indexing and sharing. Damages for online disclosure can include long-term harm to employment prospects, relationships, and psychological wellbeing that would not arise from a one-time local publication.
Interaction with HIPAA and Other Privacy Statutes
When the disclosed private fact is a medical condition, disclosure may implicate HIPAA, the Health Insurance Portability and Accountability Act, as well as state medical privacy statutes. HIPAA applies to covered entities—healthcare providers, health plans, and their business associates—rather than to private individuals who disclose health information. A private individual who publishes a neighbor’s medical diagnosis is not violating HIPAA; they may, however, be liable under the public disclosure of private facts tort if the other elements are satisfied.
State laws may provide additional privacy protection for specific categories of information. HIV/AIDS status, mental health records, substance abuse treatment records, and genetic information are often protected by specific state statutes that create separate causes of action beyond the common law privacy torts.
Employer Disclosure of Employee Information
Employers possess significant amounts of sensitive information about their employees—compensation, performance evaluations, medical accommodations, disciplinary history. Unauthorized disclosure of this information to third parties, including co-workers, can give rise to public disclosure of private facts claims. Courts have found employer liability where supervisors or HR personnel disclosed sensitive employee information without a legitimate business purpose.
Employment privacy issues also arise in the context of employment references. An employer who discloses negative information about a former employee’s private circumstances—rather than legitimate work performance information—may face liability for both public disclosure of private facts and defamation.
What to Do If Your Private Facts Have Been Published
If you discover that private information about you has been published online or in other media, act quickly. The faster you move, the more effectively the spread can be contained. Steps to take:
- Document the disclosure: screenshot the content, note the URL and date
- Request removal from the platform through its reporting mechanism
- Send a cease-and-desist letter to the poster if identified
- Submit a DMCA takedown notice if the disclosure involves photographs you own
- Request search engine de-indexing to limit discovery of the content
- Consult an attorney about whether the disclosure satisfies the elements of the tort and what damages may be recoverable
Contact Revision Legal’s privacy attorneys today if your private information has been publicly disclosed without your consent.
The intersection of privacy torts and the internet creates complex enforcement challenges. Revision Legal’s privacy attorneys are experienced in pursuing and defending these claims across multiple jurisdictions.
