Elements of a Private Facts Claim
In California, the elements of a publications of private facts claim are: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate public concern. California is notable for also requiring a plaintiff to show that the defendant published private facts "with reckless disregard for the fact that reasonable men would find the invasion highly offensive." 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).
This requirement gives you extra protection against a private facts claim. It means that a plaintiff must show more than that you were simply wrong in believing publication of the facts in question was not offensive; the plaintiff must show that you entertained serious doubts about its offensiveness and decided to publish the facts in question anyway. In a court, this would involve examination of your state of mind at the time of the publication.
Under California law, the plaintiff must affirmatively prove that the facts published were not a matter of legitimate public concern; otherwise, the claim fails. The courts consider three factors when deciding whether facts are of legitimate public concern: (1) the social value of the facts published; (2) the depth of the intrusion into ostensibly private affairs; and (3) the extent to which the plaintiff voluntarily assumed a position of public notoriety. Most facts about celebrities and public officials are considered matters of legitimate public concern. Private facts about ordinary people involved in events or occurrences of public significance are of legitimate public concern if they bear a reasonable relationship to the newsworthy topic. Courts applying California law have found the following information, among other things, to be newsworthy (i.e., of legitimate public concern):
- publication of an actress's address;
- photos showing potential abuse of military prisoners;
- reports of recent crimes (but not necessarily including names of witnesses and victims);
- facts surrounding the disappearance of a man believed to have been murdered by the Manson family, and the fact that the plaintiff was the last person to see him alive;
- the sexual orientation of a man who helped thwart an assassination attempt on President Ford;
- the name of a young woman who had kept her pregnancy secret, given birth, and asked her brother (also named) to abandon the baby at a hospital under false pretenses;
- images of automobile accident victims being rescued and treated; and
- information and records reflecting misconduct by the children of a candidate for public office.
In contrast, courts applying California law have found the following things, among others, to be potentially non-newsworthy:
- the fact that the first female student body president of a college was a transsexual;
- embarrassing stories from a prominent body surfer's personal history;
- the name of a woman who had discovered her murdered roommate and seen the murder suspect in her apartment, when the suspect was still at large; and
- the identity of a participant in the federal witness protection program.
For discussion of additional cases, see the Reporters Committee's Photographers' Guide to Privacy: California.
Relying on Public Records
In California, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. For example, in Gates v. Discovery Communications, Inc., 101 P.3d 552 (Cal. 2004), the California Supreme Court held that a news organization could not be held liable for broadcasting truthful information obtained from official court records about the plaintiff's past criminal history. So far, California courts have only applied this rule to information obtained from court records, but the protection could apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.
Consent
California recognizes consent as a defense to a publication of private facts claim. California courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should record try to record verbal consent using an audio or video recording device. The age of majority in California is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.
Statute of Limitations
The statute of limitations in California for publication of private facts claims is not entirely clear. A number of California court decisions applying California law have held that the one-year statute of limitations for libel actions applies to claims for invasion of privacy, which includes claims for publication of private facts. The statute of limitations for libel actions is found at Cal. Civ. Proc. Code § 340.
