1. Why did Warren and Brandeis speculate that the law would probably not cover invasion of privacy based on oral disclosures of private facts?
2. What is the purpose of the tort of public disclosure of private facts?
3. Can oral disclosures of private facts be just as harmful as written disclosures?
Melissa Ignat suffered from a bipolar disorder for which she was being treated with medications. Side effects of medication adjustments occasionally caused her to miss work. She alleged that after returning from one such absence her supervisor Mary Shipma informed her that she had told everyone in the department that Ignat was bipolar. Subsequently her coworkers avoided and shunned her, and one of them asked Shipma if Ignat was likely to “go postal” at work. Ignat brought suit for public disclosure of private facts, and the trial court granted summary judgment for Yum! Brands on the ground that the right of privacy can be violated only by a writing, not by word of mouth.
JUDICIAL OPINION
BEDSWORTH, P. J.… The question before us … is whether the requirement of written publication is … firmly established. Dean Prosser certainly thought it was not. In 1960 he asserted that “the growth of radio alone has made this [rule] obsolete, and there now can be little doubt that a writing is not required.” (Prosser, Privacy, supra, 48 Cal.L.Rev. at p. 394.) California case law from both before and after 1960 bears out his opinion.
The court in H&M Associates v. City of El Centro (1980) 167 Cal.Rptr. 392, based its privacy analysis on the voters’ amendment to the California Constitution, which added “privacy” to the inalienable rights of all people. After quoting Prosser on its obsolete nature, the court stated, “In this electronic age, where oral statements may ultimately receive wider coverage than a printed statement, there is no reason to immunize parties making such statements from liability. The test should turn on the nature of the privacy invaded and not on the means of communication.” (Id. at p. 412, 167 Cal.Rptr. 392.)…
We conclude that limiting liability for public disclosure of private facts to those recorded in a writing is contrary to the tort’s purpose, which has been since its inception to allow a person to control the kind of information about himself made available to the public—in essence, to define his public persona. While this restriction may have made sense in the 1890’s—when no one dreamed of talk radio or confessional television—it certainly makes no sense now. Private facts can be just as widely disclosed—if not more so—through oral media as through written ones. To allow a plaintiff redress for one kind of disclosure but not the other, when both can be equally damaging to privacy, is a rule better suited to an era when the town crier was the principal purveyor of news. It is long past time to discard this outmoded rule.
We hold that disclosure in a writing is not required to maintain a cause of action for public disclosure of private facts. Reversed.
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