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D. Publicity of private life:  The publicizing of details of the plaintiff’s private life may be an invasion of his privacy. As in the case of “invasion of seclusion,” the effect must be “highly offensive to a reasonable person.” Rest. 2d, §652D.

Example:  D, a frustrated creditor of P, puts up a notice in the window of his store stating that P owes him money and has not paid him. This is an invasion of P’s privacy. Rest. 2d, §652D, Illustr. 2.

1. Must be truly “private”:  The details divulged must be truly “private” ones, which are not contained anywhere on the public record. This requirement was spelled out, as a constitutional principle, in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). In that case, the defendant broadcasting company broadcast the name of a deceased rape victim, in violation of a state law. The Supreme Court held that the girl’s parents could not constitutionally be given recovery for invasion of privacy. The Court relied on the fact that the name of the victim was given in indictments made available for public inspection at the rapists’ trial, and held that the First Amendment required that dissemination of such publicly-available information not be prohibited.

2. Truthful matter not on any public record:  Cox leaves open the question of whether it is constitutional to allow a tort recovery for the publicizing of truthful matter that is not contained on any public record. In a post-Cox case, the Supreme Court has held that only if the state is protecting “a state interest of the highest order” may the state punish (or allow a private plaintiff to sue for) publication of “truthful information about a matter of public significance,” even where that information is not on the public record. Florida Star v. B.J.F., 491 U.S. 524 (1989).

a. Hard burden to meet:  The facts of Florida Star show that this will be a hard burden for the state, or the private plaintiff, to meet. In Florida Star, P, like the plaintiff in Cox Broadcasting, was a rape victim. Florida law made it a crime to publish the name of a rape victim. Unlike the Cox situation, in Florida Star the information was not truly public – the newspaper obtained it from the local sheriff’s department, which had put it in the press room. The Supreme Court overturned the jury award for P, because the “state interest of the highest order” requirement was not satisfied here – the state here was adopting no-fault (strict) liability, plus it was punishing only media, not private individuals who might disseminate the same information.

i.         Consequence:  So it remains possible, but by no means clear, that a tightly-written state statute preventing the intentional publication of the name of a rape victim by anyone (not just by a media defendant) may give rise to an invasion-of-privacy action if the information was not part of the public record.

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