Tuesday, March 19, 2013
Privacy Right Is Not Limited to Written Disclosures—C.A.
By KENNETH OFGANG, Staff Writer
A purely oral disclosure of private facts may form the basis of an invasion-of-privacy action, the Fourth District Court of Appeal ruled yesterday.
Div. Three reinstated a complaint by a former employee of Yum! Brands—the parent company of Taco Bell, Pizza Hut, and KFC—who is seeking damages from the company because her supervisor disclosed the plaintiff’s bipolar disorder.
Justice William Bedsworth, writing for the Court of Appeal, acknowledged that past case law in California limits actions for disclosure of private facts to cases in which the disclosure was made in writing. But he agreed with Orange Superior Court Judge B. Tam Nomoto Schumann that the “irrationality” of the rule—which the trial judge said she was bound by—calls for a change.
“We believe this rule – to the extent it is still observed – is outmoded and interferes with a person’s right to privacy without any corresponding benefit to any other right or policy,” the justice said. “Other restrictions on liability for invasion of privacy serve other important interests, such as free speech or freedom of the press. But no one has come up with a good reason for restricting liability to written disclosures, and it has long been acknowledged that oral disclosures can be just as harmful.”
The plaintiff, Melissa Ignat, worked in the company’s Irvine-based real estate title department, assisting paralegals with securing title to the real estate on which franchisees maintained their businesses, from 2005 to 2008. She alleged in her complaint that she suffers from bipolar disorder, which is treated with medication, but that she sometimes had to miss work due to side effects from the drugs.
She claimed that upon returning from one of her absences, she learned that her immediate supervisor, Mary Shipma, had told her co-workers about the disorder. As a result, she said, she was shunned, and one worker asked if she was going to “go postal.”
Following her termination in September 2008, she sued for invasion of privacy by public disclosure of private facts. The company pled, by way of affirmative defense, that the company had no knowledge of the disorder, that any disclosure of the disorder was not in writing, that the disclosure was not highly offensive to a reasonable person, and that the plaintiff had given up any reasonable expectation of privacy by disclosing the disorder to some of her co-workers.
In granting summary judgment, Schumann ruled that the lack of written disclosure was fatal under a long line of cases in California and other jurisdictions.
Bedsworth, however, noted that the primary California case, Melvin v. Reid (1931) 112 Cal.App. 285, had relied not on the common-law tort explicated in the famous 1890 Warren and Brandeis Harvard Law Review article, but on the state constitutional right to “pursu[e] and obtain happiness.”
The Melvin court’s statement 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,” Bedsworth said, was based on cases that never addressed the issue of written versus oral disclosures.
“The concentration on written publications in the cases cited in Melvin appears to be simply an accident of the kinds of privacy violations prevalent at the time,” the justice wrote. Later cases, he noted, have permitted recovery for oral statements that invaded a plaintiff’s privacy or constituted related torts, such as intentional infliction of emotional distress.
While limiting the tort to written disclosures, Bedsworth wrote, “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 case is Ignat v. Yum Brands, Inc., G046343.
Copyright 2013, Metropolitan News Company