Public disclosure of private facts is an aspect of the right of privacy that is actionable in some (but not all) states. While the prerequisites vary somewhat from jurisdiction to jurisdiction, a plaintiff typically must prove:
(1) publicity was given to matters concerning the plaintiff's private life;
(2) the matters made public would be highly offensive to a reasonable person of ordinary sensibilities; and
The third element is often crucial to the defense of invasion of privacy lawsuits. Fortunately, the mainstream media have had considerable success in persuading courts to find that their disclosures of otherwise private facts are protected because they shed light on important aspects of the human condition. The courts are especially likely to cut authors and publishers some slack in accounts that touch on the private lives of public figures. But the courts have also often found that even disclosures of private facts about private figures qualify as newsworthy. Sometimes, however, newsworthiness is a close call. And, as University of Georgia law professor Sonja West explains in this law review article entitled The Story of Me, the courts' focus on whether a disclosure of private facts is "newsworthy" is arguably misguided.(3) the matters publicized were not newsworthy, i.e., not of legitimate public interest.
Anonsen v. Donahue is one of a few interesting cases that have taken a different approach. The dispute arose out of an appearance by Miriam Booher on The Phil Donahue Show in January 1989. During the course of the program, Booher disclosed that her husband had raped and impregnated Nancy Anonsen, her daughter from a past marriage, when Anonsen was 11 years old. Booher and her husband then adopted the baby boy born from the incestuous relationship. Prior to Booher's appearance on the show, the family had never reported the crime to the authorities or publicly disclosed the events.
As touched on in a prior post, a highly-charged statement of this sort potentially implicates two separate, but interrelated areas of the law. If the statement was false, Booher would have run the risk of a libel suit from her husband. On the other hand, if the statement was true, she ran the risk of a claim for public disclosure of private facts.
Anonsen and her son acknowledged that the statement was true; they sued their mother/grandmother, Phil Donahue, and his production company for public disclosure of private facts. Anonsen and her son argued that, even though Booher did not mention their names on the show, by disclosing her own true name to a national television audience, Booher had inevitably revealed the family's nightmarish private tragedy to everyone who knew Booher's relationship to them.
Analyzing the three elements of the claim under Texas law, the court had no problem concluding that the crimes of incest and rape are newsworthy matters of legitimate public interest, but, in the judge's view, that did not necessarily mean that the (albeit indirect) disclosure of the victims' identities was a matter of public interest. But, importantly, the court reasoned:
We do not believe that the issue of newsworthiness of the parties' identities . . . is relevant to the ultimate inquiry before us: whether Booher had the right to reveal her own identity.Ultimately, the court concluded that:
to allow a cause of action based upon Booher's truthful and undisguised account of her own and her family's experience is inconsistent with the first amendment.A Massachusetts court adopted the Anonsen approach, at least in part, in Bonome v. Kaysen. Susana Kaysen, the author of Girl Interrupted, also wrote a memoir about her post-teen life entitled The Camera My Mother Gave Me in which she recounted in intimate detail her then-live-in boyfriend's alleged abusive response to her refusal to have sex with him when she was suffering from a painful medical condition. Although he was not named in the book, the boyfriend sued for invasion of privacy, arguing that many people knew that he had been Kaysen's companion and understood that Kaysen was referring to him. The judge dismissed the claim, finding that the disclosures were a matter of legitimate public concern. But he also went on to say that:
In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story-- which inextricably involves Bonome in an intimate way . . . . it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident thereto.I cannot overemphasize that publishing private facts about others carries significant legal risks and must be done cautiously, if at all. Not only may there be a question as to whether another person's story is integral to your own -- an essential aspect of the courts' reasoning in Anonsen and Kaysen. But there is always the risk that the "dislosee" will contend that the disclosures about him/her are not only intimate, but false, as in this spicy yet disturbing case involving the blogger Washingtonienne.
If you are publishing a tell-all memoir with a major publishing house or a tell-all article with a major magazine, chances are that somewhere along the line you will get advice from an in-house lawyer about how to reduce the legal risks. You can change names, change locations, change all sorts of identifying details, while keeping the core truth of your story intact. All of these precautions help to make the disclosee less identifiable. But all of these precautions cannot provide an absolute guarantee that a disclosee will not be able to argue successfully that he or she is inevitably identifiable by some people who new the author and her relationship to the disclosee.
The greatest risks are likely incurred by bloggers, Facebook posters, and other online self-publishers who nonchalantly publish the intimate details of their personal lives and those of their lovers and friends, without the benefit of any legal advice. Perhaps like Washingtonienne they take at least some precautions to conceal the identities of those they portray. But perhaps, like Washingtonienne's embarrassed lover, their lovers and friends will feel that not enough has been done to safeguard their secrets and protect their privacy. And it may be far more difficult for a private blogger (in contrast to a well-known author, like Kaysen, published by a powerful publisher, like Random House) to persuade a court that the private facts disclosed are matters of genuine public concern. If the court believes they are not, then the blogger's last, best hope is that the court may conclude, as in Anonsen and Kaysen, that an autobiographer has "a right to disclose her own intimate affairs." It's an appealing legal principle, a potentially important principle, but not one you should count on.
Postscript: this post is not, by any means, intended to discourage memoirists from practicing their craft. Remember, to be actionable, the disclosure must be of private facts that would be highly offensive to a reasonable person. Most memoirs don't venture into that territory. Moreover, book editors often tell their authors to write the truth and let the in-house lawyers figure out how the truth -- or at least most of it -- can be safely published.