A Legal Primer for Bloggers, Part 5 – Privacy

It’s only taken a year, but I’ll finally wrap up this blog series. I will be speaking on these topics (legal issues that bloggers should be thinking about) at the upcoming Blog Indiana conference, the very conference that inspired these posts one year ago. Blog Indiana is a blogging and social media conference that aims to promote education, innovation and collaboration among Indiana’s fast-growing blogging community. This year I hope to provide some of the important legal content missing from last year’s conference.

Without further ado, this final blog post will discuss privacy issues, including what you can and cannot share about others, distinguishing between private and “newsworthy” information. Privacy law is the area of law concerned with the protection and preservation of the privacy rights of individuals, including you, me and Lindsay Lohan. Privacy law is a big deal on the internet, where private information can be spread quickly and widely with just a mouse-click.

What is private information?

No legal jargon here…private information is simply personal details about someone that has not been disclosed to the public. If information is publicly disclosed by a person about himself, it moves into the public domain and will no longer be considered “private.”

Can you be sued for publishing somebody else’s private information?

Some jurisdictions allow lawsuits for the publication of private information. Whether Indiana recognizes a legal claim for publication of private information is unsettled. Before 1997, Indiana’s lower courts clearly recognized such a claim. In 1997, a divided Indiana Supreme Court decision saw two Justices rule that Indiana law did not recognize a legal claim for publication of private facts, while three other Justices agreed with the result in the case but not with their reasoning. Later courts have disagreed on whether this claim still exists in Indiana.

To the extent that Indiana law still recognizes a publication of private information claim, the elements are:

1. a public disclosure of private information concerning the plaintiff that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities;
2. to persons who have no legitimate interest in the information;
3. in a manner that is coercive and oppressive.

Publication on a blog will almost certainly be considered public disclosure. Be aware that you could be subject to the laws of another jurisdiction besides Indiana.

What is “highly offensive and objectionable” to a reasonable person?

To state a claim for public disclosure of private information, a plaintiff must show that the matter made public was one that would be “highly offensive and objectionable to a reasonable person of ordinary sensibilities.” Exactly what qualifies, as you might imagine, changes over time, varies from location to location and from jury to jury. Caselaw can provide a good idea of how courts have treated this requirement in the past, but social mores and the jury’s “gut” will ultimately make the call.

Based on the above, the media, paparazzi and much of the blogosphere would be up a certain creek without a paddle, since they couldn’t reveal private information about anyone. However, every rule has an exception. If private information is deemed “newsworthy,” it may be legal to print it even if it might be considered “highly offensive and objectionable to a reasonable person.”

Who determines if private information is “newsworthy”?

Indiana law does not impose liability for publication of information that is of legitimate public interest (i.e., newsworthy).

Private information is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Courts generally recognize that the public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment. However, a court may look at whether the private information is pertinent to an otherwise newsworthy story.

Courts applying Indiana law have found the following things to be newsworthy:

• a suspected arsonist’s loan status disclosed by a bank to an arson investigator;
• debts owed by the employees of a company disclosed by a creditor to the employer; and
• the details of an extramarital affair related to a sexual harassment claim against agents of the State Lottery Commission of Indiana made public by the media.

I hope bloggers have found the information in these posts to be helpful. Please leave a comment or send an email if you’d like additional information. See you at Blog Indiana 2010!

Sources:

EFF

Citizen Media Law Project

A Legal Primer for Bloggers

Part 1: Introduction

Part 2: Intellectual Property

Part 3: Defamation

Part 4: Anonymity

Part 5: PRIVACY

DISCLAIMER: The legal analysis of any situation depends on a variety of factors which cannot be properly represented or accounted for on a blog or web page. The information on this blog is intended as general information only, and is not intended to serve as legal advice or as a substitute for legal counsel. If you have a question about a specific factual situation, you should contact an attorney directly.