§39.8 Publicity Given to Private Facts

The Case: Cawood v. Booth, No. E2007-02537-COAR3-CV, 2008 WL 4998408 (Tenn. Ct. App. Nov.25, 2008), perm. app. granted June 15, 2009.

The Basic Facts: At the direction of local sheriff's department and with the cooperation of a female client of Cawood, a lawyer, Cawood was unknowingly audiotaped and videotaped engaging in acts of masturbation in the presence of the female client. Representatives of the sheriff's department then permitted people other than those involved in the investigation, including non-employees of the sheriff's department, to view the videotapes. Cawood brought a civil suit alleging various causes of action, including the tort of publicity given to private facts.

The Bottom Line:

• "We next address whether the Trial Court properly determined that the defendants were entitled to summary judgment on the plaintiff's claim alleging public disclosure of private facts. This tort is discussed in the [RESTATEMENT (SECOND) OF TORTS], § 652D. That section, including comment a., is as follows:

  § 652D. Publicity Given To Private Life .
  
  One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
  
  (a) would be highly offensive to a reasonable person, and
  
  (b) is not of legitimate concern to the public....
  
  [Cmt.] a. Publicity. The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. 'Publicity,' as it is used in this Section, differs from 'publication,' as that term is used in § 577 in connection with liability for defamation. 'Publication,' in that sense, is a word of art, which includes any communication by the defendant to a third person. 'Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.
  
  Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons. On the other hand, any publication in a newspaper or a magazine, even of small circulation, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience, is sufficient to give publicity within the meaning of the term as it is used in this Section. The distinction, in other words, is one between private and public communication…."

  2008 WL 4998408 at *8-*9.
• "The [RESTATEMENT]'s pronouncement that the publicity is insufficient if made only to a single person or a small group of persons has been followed in Tennessee. See Lineberry v. Locke, No. M1999-02169-COA-R3-CV, 2000 WL 1050627, at *2 (Tenn. Ct. App. M.S., filed July 31, 2000), no perm. app. filed, (limited exposure of materials seized insufficient to make out a cause of action for public disclosure of private facts when the materials found at the scene were viewed by some of the officers at the scene in the presence of the plaintiff's son and possibly two other persons); see also Parr v. Middle Tennessee State University, No. M1999-01442-COA-R3-CV, 1999 WL 1086451 (Tenn. Ct. App. W.S. at Nashville, filed Dec. 3, 1999), perm app. denied May 15, 2000; Garmley v. Opryland Hotel Nashville, LLC, No. 3:07-0681, 2007 WL 4376087 (M.D.Tenn.2007)." Id. at *9.

• "In the present case, the showing of the videotape was to a very limited number of people. This does not and cannot qualify as a public disclosure under [RESTATEMENT (SECOND) OF TORTS], § 652D. Indeed, there was no public disclosure of the contents of the videotape until a few days after it was viewed by a small group of people, and, on this later occasion, it was the plaintiff who issued a press release acknowledging his activities, a release that was followed up by the facsimile discussed supra at footnote 4 [omitted]. Accordingly, the trial court correctly granted summary judgment to the defendants on the plaintiff's claim of invasion of privacy by public disclosure of private facts." Id.

Other Sources of Note: Harris v. Horton , 2009 WL 4801719 (Tenn. Ct. App. Dec. 14, 2009) (display of gruesome photographs of decedent taken at accident scene were those of an involuntary public figure, were displayed concerning his status as such, and therefore did not give rise to claim under this tort ).