Weekly Law Resume - April 12, 2013: Common Law Right of Privacy – No Requirement of Written “Publication”

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Ignat v. Yum! Brands, Inc
Court of Appeal, Fourth District (March 18, 2013)

Traditionally, a common law right of privacy based on the disclosure of private facts required that there be a written “publication” of such facts. This case considered and eliminated the written publication requirement in the context of an employer’s oral statements sharing private facts to other employees.

Melissa Ignat worked for Yum! Brands, Inc., assisting paralegals in the real estate department in obtaining title to properties for some of Yum!’s franchises, including Taco Bell, KFC, and Pizza Hut. Ms. Ignat suffered from bipolar disorder, and claimed that she missed work on occasion as a result of the side effects of medication she took for the disease. Ms. Ignat claimed that during her absence, her supervisor told co-workers that Ms. Ignat suffered from bipolar disorder, causing her co-workers to “shun” her upon her return to the company. A fellow co-worker even stated that Ms. Ignat could “go postal,” referring to Ms. Ignat’s disorder. A few months later, Ms. Ignat’s employment was terminated.

Ms. Ignat filed suit against her employer, Yum! Brands, and her immediate supervisor, alleging one cause of action for invasion of privacy by public disclosure of private facts. The Trial Court granted summary judgment in favor of the employer since the alleged publication of Ms. Ignat’s ailment was not made in writing.

The Court of Appeal reversed, discarding the “writing” requirement and holding that verbal disclosures would suffice. In support of its shift from prior case law, the Court of Appeal looked at the historic background of the right of privacy cause of action, which had its roots in the late 1890’s, when there was concern that “advances in photography and the proliferation of newspapers” left individuals exposed to invasions of their privacy not covered by “established legal protections.” Over the years, the cause of action for invasion of privacy and the public disclosure of private facts had evolved with a requirement that the disclosure be in writing because otherwise, the disclosure would not reach the level of “special damages” to one’s reputation that required protection.

The Court of Appeal found that in the modern era, there is no justification for distinguishing between an oral or written publication of such private facts. The Court stated 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.” The Court further noted that 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. The Court noted that nowadays, private facts can be just as widely disclosed – if not more so – through oral media as through written ones.

COMMENT

It is important for employers to ensure safekeeping of employees’ records and to train managers regarding the privacy of employees, particularly of medical information. Managers should be trained on what information must be kept confidential, and they should only disclose information to other managers who have a legitimate, business-related need for that information.

For a copy of the complete decision see: www.courts.ca.gov/opinions/documents/G046343.PDF