Invasion of Privacy: Verbal Disclosures

Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th 808, 154 Cal.Rptr.3d 275

A woman who suffered from bipolar disorder filed an action against her former employer and her supervisor for invasion of privacy, alleging that while she was absent from work due to side effects of her medication, the supervisor had informed coworkers of her condition. The plaintiff alleged that upon her return to work she was shunned by coworkers, and one had even asked her supervisor if she was likely to “go postal” while at work.

The defendants moved for summary judgment based upon decisions following Melvin v. Reid (1931) 112 Cal. App. 285, holding that the right of privacy can only be violated by writings or other permanent publications, and not by word of mouth.   The trial court granted summary judgment but the court of appeal reversed, holding that disclosure in a writing should not be required to maintain a cause of action for public disclosure of private facts:

The general principle that interests us here is the writing requirement. After surveying over 20 cases from other American jurisdictions, the court concluded that “[t]he right of privacy can only be violated by printings, writings, pictures, or other permanent publications or reproductions, and not by word of mouth.” (Melvin, supra, 112 Cal.App. at p. 290, 297 P. 91.) Two other California cases have followed Melvin on this point: Gautier v. General Telephone Co. (1965) 234 Cal.App.2d 302, 309, 44 Cal.Rptr. 404, and Grimes v. Carter (1966) 241 Cal.App.2d 694, 698–699, 50 Cal.Rptr. 808.

. . .
[T]he “rule” requiring a written publication as an element of a public disclosure of private facts privacy claim in California originated in dictum—which lacked support in the case law on which it was based—in an opinion that rejected the tort and all its principles, instead basing its holding on another principle entirely. It was followed by two cases from the 1960’s, both of which cited Melvin ‘s “principle” as if it had been a holding instead of a detour. … With these two exceptions, restricting privacy violations to written publications has been either roundly criticized or ignored by the courts dealing with disclosure of private facts in oral statements since the principle was first enunciated, in dictum, in Melvin. This is not a firm foundation for a ruling dismissing a cause of action.

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. (See Briscoe, supra, 4 Cal.3d at p. 534, 93 Cal.Rptr. 866, 483 P.2d 34; The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 198–199.) 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.