“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).

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.