ALP: Does a public figure have any privacy rights that can be violated?

June 2005

This is probably the one question that people have asked me the most since the jury rendered a complete defense verdict in Darcie Divita v. John Ziegler and Clear Channel Radio d/b/a 84WHAS.  The case was brought by Ms. Divita, a former television morning show host, against John Ziegler, a former talk radio personality whom she had dated, for certain personal comments he had made about her on-air. The answer to this question depends on the particular facts of a given case, however, because of important First Amendment protections, a public figure’s burden of proving an invasion of privacy case is extremely high.

Invasion of Privacy Torts
In Kentucky, there are four invasion of privacy torts: false light, public disclosure of private facts, intrusion upon seclusion and misappropriation.   A plaintiff must prove the following elements of each tort in order to prove his or her claim:

1) False Light-The plaintiff must prove a) the false light in which the other was placed would be highly offensive to a reasonable person; and b) the publisher had knowledge, or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other was placed.

2) Public Disclosure of Private Facts-The plaintiff must prove that publicity is given to a matter concerning the plaintiff’s private life that would be highly offensive to a reasonable person, and is not of legitimate concern to the public (i.e., "newsworthy").

3) Intrusion upon Seclusion The plaintiff must prove someone intentionally intruded, physically or otherwise, upon his or her solitude or seclusion or his or her private affairs or concerns, and that the intrusion would be highly offensive to the reasonable person. This claim necessarily involves some type of physical intrusion, unauthorized snooping, or other investigation without plaintiff’s authorization.

4) Misappropriation This tort protects the commercial interests in one’s identity. The plaintiff must prove that his or her identity was improperly used for commercial gains. However, using a person’s identity primarily for the purpose of communicating information or expressing ideas is not generally actionable as a violation of the person’s right of publicity. 

Moreover, with respect to these invasion of privacy torts generally, one’s privacy cannot be invaded if the plaintiff has failed to treat his or her "private" information as private.

Last, but clearly not least, because of important First Amendment protections, a public figure plaintiff asserting invasion of privacy claims must prove Constitutional "actual malice" by clear and convincing evidence, the highest standard required in a civil case. "Actual malice" is a specific legal term. It does not mean ill will or spite that a defendant may have against the plaintiff. Instead, it concerns the defendant’s attitude towards the truth or falsity of the statements published. A plaintiff must prove the defendant either actually knew of or acted in reckless disregard as to the falsity of the publicized matter at the time of publication.

In the Divita case, only the first two of these invasion of privacy torts, false light and public disclosure of private facts, were ultimately decided by the jury.

Exceptions and Privileges to the Invasion of Privacy Torts
Kentucky  recognizes certain exceptions to the invasion of privacy torts. For example, the right of privacy does not prohibit: 1) publication of a matter which is of public or general interest; 2) publication of a matter which is a privileged communication under defamation law; 3) oral statements; and 4) a publication which is true. Some of the privileges available under defamation law include statements that are substantially true or are statements of opinion.

Moreover, the First Amendment to the U.S. Constitution also provides certain privileges against some of the invasion of privacy claims, including the public figure privilege and newsworthy privilege. Newsworthiness is interpreted broadly. A publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it.

In the Divita case, the defendants asserted all of these exceptions and privileges.

If a public figure plaintiff can meet all of these hurdles, then it is possible for him or her to establish a claim for invasion of privacy. In the case of Darcie Divita, the jury found based on the evidence and the applicable law that Ms. Divita was unable to meet her substantial burden.   First, as the defendants had asserted throughout the litigation, Ms. Divita admitted that all of the factual statements made about her were true, and that the other statements made about her were statements of Mr. Ziegler ’s pure opinion.  Second, as reported by the jury’s foreman after the trial, Ms. Divita did not prove "actual malice."  Third, the statements concerned matters that were newsworthy to people in the community.  Finally, Ms. Divita publicly discussed the factual basis for many of the statements with many people and therefore, did not treat the information as private.