What is Public Disclosure of Private Facts?
While this form of invasion of privacy may seem like a reiteration of appropriation of name or likeness, public disclosure of private facts protects a much wider swath of individuals. For this cause of action, the person does not need to be commercially known; rather, the harm derives from the emotionally and economically damaging exposure of private and sensitive facts about a person to the public.
What are some examples of Public Disclosure of Private Facts?
Examples of this type of invasion of privacy include public disclosure of:
- A person's positive HIV test(s);
- A person's school grades;
- A person's sexual relations; or
- A person's “unpleasant or disgraceful” illness(es).
On the other hand, the disclosure of facts that are already public will not support a claim of public disclosure of private facts. Certain information, such as a marriage license, divorce decree, or arrest warrant is always available to the public, and therefore no harm results (and no liability can attach) from further dissemination of that information.
In addition, the First Amendment protects disclosures of private facts that are highly offensive to a person of ordinary sensibilities when those facts have “some substantial relevance to a matter of legitimate public interest.” This includes information that would otherwise be private concerning individuals who, voluntarily or not, have become involved in a matter that is the legitimate subject of public interest. Examples of such matters include:
- Homicide and other crimes;
- Police raids;
- Marriages and divorces;
- Catastrophes of nature;
- Death from use of narcotics;
- A rare disease; and
- The birth of a child to a 12-year-old girl.
The scope of a matter of legitimate public concern is not limited to news, but also includes matters published for purposes of education, entertainment, or amusement.
How do I prove a claim for Public Disclosure of Private Facts?
In order to recover for an invasion of privacy by public disclosure of private facts, a plaintiff must prove all of the following elements by a preponderance of the evidence:
- The defendant made a fact (or facts) about the plaintiff public;
- Before this disclosure, the fact was (or the facts were) private;
- A reasonable person would find the disclosure of that fact (or facts) very offensive;
- At the time of the disclosure, the defendant knew or should have known that the fact or facts he/she/it disclosed were private;
- The plaintiff had injuries/losses/damages; and
- The public disclosure of this fact/these facts were a cause of the plaintiff's injuries/damages/losses.
Another effective iteration of the elements of recovery for public disclosure of private facts include the following:
- The fact or facts disclosed must be private in nature;
- The disclosure must be made to the public;
- The disclosure must be one which would be highly offensive to a reasonable person;
- The facts disclosure cannot be of legitimate concern to the public; and
- The defendant acted with reckless disregard of the private nature of the fact or facts disclosed.
The public disclosure element requires “communication to the public in general or to a large number of persons, as distinguished from one individual or a few.” Additionally, a person acts with reckless disregard of the private nature of the facts disclosed if the defendant “knew or should have known that the facts or facts disclosed were private in nature.”
Importantly, the “newsworthiness” test used to determine whether the facts disclosed are of legitimate concern to the public "properly restricts liability for public disclosure of private facts to the extreme case, thereby providing the breathing space needed by the press.”
Invasion of privacy: Public Disclosure of Private Facts is a common yet nuanced and complex cause of action in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call at 720-441-3328 or complete a consultation request form for more information on how we can help!
 Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997).
 Restatement (Second) of Torts § 652D cmt. b.
 Borquez, 940 P.2d at 377.
 Id. at 378.
 Restatement (Second) of Torts § 652D cmts. d-f.
 Id. cmt. g.
 Lewis v. McGraw-Hill Broad. Co., 832 P.2d 1118, 1121 (Colo. App. 1992).
 CJI § 28:5.
 Borquez, 940 P.2d at 377.
 Id. at 378-79.
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