“Kiss and Tell”: Why Bloggers Should Avoid Applying this Cliché

The Internet allows us to spread news and gossip faster and farther than traditional media outlets ever could in the past. It’s a powerful tool, one that is at everyone’s fingertips (well, at least those with the privilege of computer access), but it comes with risks, both to the bloggers who harness its power and to individuals whose private information may become published without their consent.

Bloggers may have the ability to disseminate information widely, but we typically don’t have something that corporations (like newspapers) usually do have: a team of lawyers and ample liability insurance, both of which become important when we’re accused of treading on the rights of individuals we feature in our posts.

“Kissing and Telling All”

I’m a book blogger, one who rarely writes about private individuals, and so I’m not particularly worried about a potential defamation or violation of privacy lawsuit (knock on wood!). Rather, this subject is on my mind because of a pair of books I read: Jennifer Weiner’s Good in Bed (2002) and Sarah Dunn’s The Big Love (2005).

Chick Lit in Philly Books 2

Both of these chick lit novels take place in Philadelphia (although Dunn’s main character speaks about my city disparagingly and so I did not include it in my Girly Books Blog Hop Giveaway), both star protagonists who work for Philadelphia newspapers, and both of these books touch on the subject of publishing private facts about non-public figures:

  • In Good in Bed, Cannie Shapiro’s ex-boyfriend, Bruce Guberman, publishes intimate details of their sex life in a national print publication. He does it by using only the first initial of her first name, but many people figure out who she is.
  • In The Big Love, Alison’s crappy ex-boyfriend breaks up with her in an appalling way and tells her not to write about it in her column. She thinks, “Tom is an attorney, and it crossed my mind that if I wrote about what happened that night when he asked me not to, I might end up getting sued… I suppose it doesn’t help that I always give people the same names they have in real life. I can’t help it.”

What happened to Cannie or could have happened to Alison’s crappy ex-boyfriend in these fictional examples involved print publications, not the Internet, but the availability of the Internet these days would only make the publication of such facts all the more damaging to the individual who wanted to maintain his or her privacy. These types of invasions of privacy happen often, and those who feel their privacy was compromised are left wondering if there is anything they can do about it.

Invasion of Privacy Lawsuits

The legal remedies available when someone spreads private information in print or on the Internet generally come under two types of torts: (1) defamation, which applies only if the published information is untrue; and (2) privacy torts, which is what I want to talk about today.  In Pennsylvania, where both of these novels take place, there are four types of privacy torts: “(1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life and (4) publicity placing the person in a false light.” Harris v. Easton Pub. Co., 335 Pa. Super. 141, 483 A.2d 1377 (1984).

The privacy tort most applicable to “kiss and tell” types of cases is the third one listed above, publicity given to private life, and the plaintiff must show that the defendant gave “(1) publicity… to (2) private facts, (3) which would be highly offensive to a reasonable person and (4) is not of legitimate concern to the public.” Id.

These are notoriously hard cases for plaintiffs to win, particularly in light of potential First Amendment concerns that limit government regulation (through tort law) of truthful information that has some degree of public significance (often with a broad definition of what matters are significant to the public). See Florida Star v. B.J.F., 491 U.S. 524 (1989). Another drawback of bringing these cases is that doing so may only attract additional attention to the “private” facts underlying the suit.

Nevertheless, individuals out there continue to bring these types of claims (in real life, not fiction). One high profile example is Steinbuch v. Cutler  (not a Pennsylvania case; see summary here), one of a couple lawsuits stemming from a brief sexual relationship between a staffer for a U.S. Senator and a lawyer who worked for that Senator. The staffer published intimate details about the lawyer on her blog, referring to him by his initials, which was enough for many to identify him. She received a book deal for a fictional account of her sexual escapades in Washington, D.C. and also got slapped with a lawsuit asserting invasion of privacy claims. The case went on for six years, spreading the facts of this case throughout the Internet and leading the blogger to file for bankruptcy, before the case ultimately settled.

The Lesson for Bloggers

Cases like this one serve as a cautionary tale for bloggers, reminding us to avoid airing someone else’s “dirty laundry” or “kissing and telling.” Or, if we can’t help ourselves, then we should at least redact all identifying information.

22 thoughts on ““Kiss and Tell”: Why Bloggers Should Avoid Applying this Cliché

  1. Pingback: That Crazy Little Thing: Is That My Husband In Your Book? | The Misfortune Of Knowing

  2. Pingback: Philadelphia: A Perpetual Punching Bag | The Misfortune Of Knowing

  3. I’ve written posts where I’ve mentioned other people, usually by their initials or some descriptive phrase (e.g. “an invited guest to my class”). Recently, I’ve had cause to consider whether I may be invading these people’s privacy by doing so and, perhaps unfittingly enough, wrote a post about it! http://teasandbooks.wordpress.com/2013/02/11/talk-and-tell-a-privacy-intrusion/

    Conveniently for me, but I also hope rightly, I concluded that I did not, mainly because I did not write about these persons so much as mention them in context of the ideas/opinions that I did want to write about. Of course, nothing I wrote even begins to approach something what could be labeled “kiss and tell”!

    1. Privacy torts aren’t very likely to succeed, but bloggers should still be careful. Removing identifiable information is a good first step. Thanks for the comment and the link to your post!

    1. I agree with you! I wouldn’t want to read a gossip blog, but I’m afraid there are many people who do. The defendant in the case I mentioned got a book deal out of it.

    1. That would be nice. I wouldn’t want to dissuade people from making truthful, newsworthy statements on their blogs, but we should strongly discourage gossip and mean-spirited statements that amount to nothing more than bullying.

  4. Interesting and useful information to know. I guess it sort ofof goes with the old childhood saying: if you don’t have anything nice to say about someone, don’t say anything at all. But in general it’s good to just be careful what you post on the internet, you never know what trouble you might be causing yourself in the future.

    1. Yes, it’s very important to be careful about what we post on the Internet! We can make truthful, negative comments about people, but we have to weigh whether it’s worth it and whether we should redact identifying information. Thanks for commenting!

  5. Melanie

    You have given me something to think about. Thank you. I never save any of the images I create, but that doesn’t mean I can’t go back and fix them now. It’s work that could prove worth it. I only have to go back to last September to rectify my mistakes.

    1. Hi Melanie- Thanks for your comment. If you’re worried about an invasion of privacy or defamation lawsuit, it makes sense to re-evaluate the material you’re posting. These types of lawsuits are difficult for people to bring for the reasons I discussed in the post (in addition to what I said to Roy below about lawyers being expensive), but a person may decide to bring such a claim (and finance it out-of-pocket) as a way of abusing the other person for simply telling their story. It doesn’t happen often, but it could happen. Good luck.

  6. I have thought of writing a book on neurodevelopmental diseases with the slant being toward the psychological aspects of the patient etc. I even thought of writing it for premed students with my medical background etc. One thing that happened to me was unfortunately two surgeries by the same doctor (on myself) left me with some permanent damage. I did not realize about the first surgery until after I had the second one by him. I never sued that person as I am not that kind of person , but if I wrote about the situation as a patient without naming names would this put me in jeopardy as being “careless” even if I have proof of the errors from other surgeons who have suggested I have more surgery to correct what has happened to me? Sorry to ask, but this whole thing really interests me. I think it is good to share so others may learn. It is unfortunate to me hospitals continue to allow privileges to doctors that cause serious life changing impacts to a person’s life. I know for a fact that their are nurses who knew he had some issues in surgery, but never spoke about it..This is really serious to me, but I feel like there is not much I can do. As someone that has had a brain tumor and short term memory issues etc, I would be the last one anyone would listen to in the sense of a court of law. Well that is my opinion.

    1. Hi! Bear in mind that I am unlicensed to practice law in your state (and so do not know the specific laws there), but my first impression is that you should be okay if you write about your own medical experiences and omit identifying information about the doctor, other medical staff, and hospital involved. It’s your story. It doesn’t sound like they would have an invasion of privacy claim, but, if you identified them as the ones responsible, they could could try to claim defamation, and truth would be the defense.

      1. Thank you. I thought along the same lines as you wrote here. As I have processed how I wanted to outline my story, I wanted to make sure no trace could come back to the physicians involved therefore even maing myself a ghost writer. I have so much documentation on my case ( RN’s know how to get their crap together usually haha), but my intention is not to ID anyone , but to tell a story. It would be my story, but if an RN as myself can fall into the traps I did, just think of the layperson coming off the street. It is horrific to know end when I think about it all. BTW–I hope you saw I put you in my winning circle on my post today! You deserve it!

  7. Interesting commentary. On a practical level though presumably the ‘victim’ would be slow to slap in a lawsuit unless it was worthwhile in monetary terms? Here in our jurisdiction a handful of bloggers run riot with defamatory and damaging accusations of others. For whatever reason they seem immune from legal reprisal, possibly because the victims consider it would provide them with a legally-aided public platform. Better to ignore them.

    I guess it would be the careless (rather than vindictive) author/blogger that more likely get caught, and your reminder is relevant to those.

    1. Yes, often it’s nearly impossible to bring these kinds of cases unless there are ample monetary damages (and a high likelihood of success) or the plaintiff has enough money to fuel a lawsuit out-of-pocket because it would be difficult to find legal representation (as lawyers would be paid either by contingent fee or by the hour). Depending on the law of the state, a plaintiff could seek compensatory/punitive damages and injunctive relief, such as taking down the material.

I appreciate your comments (respectful dissent is welcome)!

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