Gossip, if true, is legally defensible

Rohit Khare (rohit@bordeaux.ICS.uci.edu)
Thu, 15 Jan 1998 21:56:33 -0800

Apologies to those who already get their politech bits straight from Declan,
but this bears repeating. I wonder how this resonates, at the opposite end of
the spectrum, with last year's WIPO proposal to allow intellectual property
ownership of databases of "facts"... glad to see jurisprudence sometimes
reveals prudent jurists!


------- Forwarded Message

Date: Fri, 16 Jan 1998 00:20:35 -0500
To: politech@vorlon.mit.edu
From: Declan McCullagh <declan@well.com>
Subject: FC: Indiana state court rejects privacy claim in HIV case

So I just got done reading the decision in Doe v. Methodist Hospital, a
recent case before the Indiana Supreme Court. (Thanks to Eugene for
pointing it out.)

The case involved a woman who truthfully told someone else a third party
was HIV positive. She did not break any laws to learn this information;
someone else told her. The HIV-positive man's suit against her relied on
the so-called tort of disclosure of private facts. (There are four privacy
torts: intrusion upon seclusion; appropriation of likeness; public
disclosure of private facts; false-light publicity.) The plaintiff could
not charge her with libel or slander since what she said was true.

The judges referenced an oft-cited 1890 Warren-Brandeis article that
popularized the idea of suing reporters (and others) for violating your
privacy if they said truthful things about you. The authors seemed mainly
concerned with muzzling journalists and censoring the press, the court

The invasion of privacy tort had its genesis in an 1890 law
review article by Boston attorney Samuel Warren and his
former law partner--and future Supreme Court
Justice--Louis Brandeis. An impetus for it seems to have
been the press's coverage of Warren's wife's social
gatherings "in highly personal and embarrasing detail."
The reports covering their daughter's wedding were
apparently more than the Warrens' sensibilities could
bear... The authors criticized the press for
"overstepping in every direction the obvious bounds of
propriety and decency." They were concerned that truthful
reporting about "private" affairs was causing "a lowering
of social standards and of morality."... A cause of
action for invasion of privacy would chill the press from
reporting "unseemly gossip."

The Indiana court ruled, in a plurality opinion (joined by a concurrence):

[w]e do not discern anything special about disclosure
injuries. Perhaps Victorian sensibilities once provided
a sound basis of distinction, but our more open and
tolerant society has largely outgrown such a
justification. In our "been there, done that" age of talk
shows, tabloids, and twelve-step programs, public
disclosures of private facts are far less likely to cause
shock, offense, or emotional distress than at the time
Warren and Brandeis wrote their famous article.

The court flatly rejected and refused to recognize the tort of disclosure
of private facts. It upheld the lower court's decision to grant summary
judgment to the woman who was sued. In other words: you're allowed to speak
the truth. The court even noted that gossip is socially useful.

Score a minor victory for free speech and freedom of the press over
so-called "privacy" laws.

- -Declan

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