From: Declan McCullagh <declan@well.com>
Date: Fri, 16 Jan 1998 13:32:30 +0800
To: cypherpunks@cyberpass.net
Subject: Indiana state court rejects privacy claim in HIV case
Message-ID: <v03007802b0e49dbe049b@[168.161.105.216]>
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So I just got done reading the decision in Doe v. Methodist Hospital, a
recent case before the Indiana Supreme Court. (Thanks to Eugene for
pointing it out.)

The case involved a woman who truthfully told someone else a third party
was HIV positive. She did not break any laws to learn this information;
someone else told her. The HIV-positive man's suit against her relied on
the so-called tort of disclosure of private facts. (There are four privacy
torts: intrusion upon seclusion; appropriation of likeness; public
disclosure of private facts; false-light publicity.) The plaintiff could
not charge her with libel or slander since what she said was true.

The judges referenced an oft-cited 1890 Warren-Brandeis article that
popularized the idea of suing reporters (and others) for violating your
privacy if they said truthful things about you. The authors seemed mainly
concerned with muzzling journalists and censoring the press, the court
noted:

        The invasion of privacy tort had its genesis in an 1890 law
	review article by Boston attorney Samuel Warren and his
	former law partner--and future Supreme Court
	Justice--Louis Brandeis. An impetus for it seems to have
	been the press's coverage of Warren's wife's social
	gatherings "in highly personal and embarrasing detail."
	The reports covering their daughter's wedding were
	apparently more than the Warrens' sensibilities could
	bear... The authors criticized the press for
	"overstepping in every direction the obvious bounds of
	propriety and decency." They were concerned that truthful
	reporting about "private" affairs was causing "a lowering
	of social standards and of morality."... A cause of
	action for invasion of privacy would chill the press from
	reporting "unseemly gossip."

The Indiana court ruled, in a plurality opinion (joined by a concurrence):

        [w]e do not discern anything special about disclosure
	injuries. Perhaps Victorian sensibilities once provided
	a sound basis of distinction, but our more open and
	tolerant society has largely outgrown such a
	justification. In our "been there, done that" age of talk
	shows, tabloids, and twelve-step programs, public
	disclosures of private facts are far less likely to cause
	shock, offense, or emotional distress than at the time
	Warren and Brandeis wrote their famous article.

The court flatly rejected and refused to recognize the tort of disclosure
of private facts. It upheld the lower court's decision to grant summary
judgment to the woman who was sued. In other words: you're allowed to speak
the truth. The court even noted that gossip is socially useful.

Score a minor victory for free speech and freedom of the press over
so-called "privacy" laws.

-Declan