In a decision surprising only because it has taken so long, on March 18, 2013, the California Court of Appeal in Ignat v. Yum! Brands, Inc., No. G046343 held that the privacy-based tort of public disclosure of private facts is not predicated on a writing containing the disclosure; an oral disclosure is sufficient to state a cause of action.
Plaintiff in Ignat appealed from a summary judgment dismissing her claim based on her supervisor’s oral disclosure of her bi-polar disorder. The trial court granted her employer’s motion because there was no writing disclosing her condition; the statement had been made only by word-of-mouth. The foundation of the trial court’s conclusion that a claim for public disclosure of private facts requires a writing was Melvin v. Reid (1931) 122 Cal. App. 258 and two other California cases following Melvin: Gautier v. General Telephone Co. (1965) 234 Cal. App. 2d 302, 309 and Grimes v. Carter (1966) 241 Cal. App. 2d 694, 698-699. The Court of Appeal in Ignat concluded, however, that “the concentration on written publications in cases cited in Melvin appears to be simply an accident of the kinds of privacy violations prevalent at the time,” and not due to a fundamental policy advanced by imposing a writing requirement to state a cause of action for the tort.
The Court of Appeal dispensed with the writing requirement based on cases holding, for example, that emotional distress could be inflicted by an oral statement, that privacy could be invaded by a radio broadcast, and on Dean Prosser’s assessment in 1960 that “’the growth of radio alone has made [the writing requirement] obsolete, and there can now be little doubt that a writing is not required.’” Prosser, Privacy (1960) 48 Cal.L.Rev.383, 394. The Court of Appeal sought to firmly dispose any vestiges of a writing requirement to state a cause of action for public disclosure of private facts: “[w]e conclude that limiting liability for public disclosure of private facts to those recorded in 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 available to the public-in essence, to define his public persona.”
For employers, Ignat means another layer of vigilance. As challenging as it can already be to ensure that an employee’s personal circumstances remain private, a leaked oral statement now makes a claim for public disclosure of private facts a greater workplace risk and therefore a topic to address in workplace practices and policies.
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