Can I sue my ex-husband for disclosing our privileged marital communications?

[LdiJ]

I think that you are misunderstanding the consequences of violating priviledge....

If a clergy violates priviledge, the clergy loses his/her job. There are no criminal consequences

If an attorney violates priveledge, the attorney is disbarred. There are no criminal consequences

If a doctor violates priviledge, the doctors loses his/her license. There are no criminal consequences

If an ex spouse violates marital confidentiality, what consequence would you expect there to be?

 

[Antigone*]

I think that you are misunderstanding the consequences of violating priviledge....

If a clergy violates priviledge, the clergy loses his/her job. There are no criminal consequences

If an attorney violates priveledge, the attorney is disbarred. There are no criminal consequences

If a doctor violates priviledge, the doctors loses his/her license. There are no criminal consequences

If an ex spouse violates marital confidentiality, what consequence would you expect there to be?

Fifty lashes

 

[tranquility]

I think that you are misunderstanding the consequences of violating priviledge....

If a clergy violates priviledge, the clergy loses his/her job. There are no criminal consequences

If an attorney violates priveledge, the attorney is disbarred. There are no criminal consequences

If a doctor violates priviledge, the doctors loses his/her license. There are no criminal consequences

If an ex spouse violates marital confidentiality, what consequence would you expect there to be?

While I agree, the whole reason to bring up privilege is to show the information was not put out publicly. Telling people you were a farkler could be a problem in later claiming it was private information while if you told it while in an inherently private communication under some privilege doctrine, you'd have a better case. It is not the violation of privilege that is the problem, it is the argument the information is private.

 

[Antigone*]

While I agree, the whole reason to bring up privilege is to show the information was not put out publicly. Telling people you were a farkler could be a problem in later claiming it was private information while if you told it while in an inherently private communication under some privilege doctrine, you'd have a better case. It is not the violation of privilege that is the problem, it is the argument the information is private.

If that is the case then at that point the OP would have a case for defamation, not violating privilege. The OP could spend tons of money, hire an attorney and take her pound of flesh.

 

[Silverplum]

"Publication" actually refers to the dissemination of facts, which includes oral communications as well as written communications.

Oral communications for an invasion of privacy/publication of private facts suit, however, would probably not meet the "widespread" publication required for this action, unless there was a public broadcast. A relating of private facts on the internet, on the other hand, would (generally) meet this element.

An example of the type of private facts that could support a privacy action would be having your partner disclose online to others that you have a sexually transmitted disease or had an abortion or miscarriage, if this is not widely known to others already and if it was revealed in confidence or with the understanding that the information would remain private. Sending privately-taken nude photos to others can give rise to this type of tort action, as well, if it was understood these photos were not to be shared.

The fact that you have to discuss these private facts in a court action means that both the pros and the cons of a suit need to be weighed carefully.

I always appreciate a chance to sit and learn from Quincy!!

Thank you for explaining it so well.

 

[tranquility]

If that is the case then at that point the OP would have a case for defamation, not violating privilege. The OP could spend tons of money, hire an attorney and take her pound of flesh.

Defamation is FALSE and defamatory information that is published. Public disclosure of private information has to do with true information.

 

[Bali Hai]

Fifty lashes

And caning for OP to teach her to keep quiet about sensitive information. If one doesn't want information made public, one should keep their mouth shut.

 

[quincy]

. . . . If one doesn't want information made public, one should keep their mouth shut.

While I agree with this in essense, it is not always possible for a person to keep some private information from others, and this could be especially the case in a marital relationship.

Certainly invasion of privacy/publication of private fact suits should not be considered unless the publicity given the private facts has disrupted one's life in a major way (ie, loss of a job, loss of relationships, loss of esteem in the community).

Generally the existence of a public record precludes any recovery for invasion of privacy, regardless of the embarrassment additional attention to the public record may cause. But generally is not always.

In one 1983 case out of Privacy747's California, the Oakland Tribune was sued for invasion of privacy after publishing a story about a college student who had become the first woman student body president in the history of the college. The story that was published could have been a feel-good story about the accomplishments of this young woman but, instead, the Tribune located her birth certificate (a public record) that showed the college woman had been born male. She became legally female through a sex-change operation. And it was on this fact that the Tribune concentrated their story. She sued. A jury awarded the woman $775,000 and, as newspapers are wont to do, the Tribune appealed the decision. The case was finally settled out of court, with the Tribune paying the woman around $300,000. See Diaz v Oakland Tribune, Inc, 139 Cal App.3d 118, 188 Cal Rptr. 762, 766 (1983), 9 Med.L.Rptr, 1121, 1122.

There have also been successful publication of private facts suits over publicity given to forced sterilization victims and rape victims.

From the Restatement (Second) of Torts Section 652D: "The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake. . ."

California has, as Privacy747 noted, strong privacy laws. California is also home to what is regarded as the leading decision in privacy law (Melvin v Reid, 112 Cal App 285, 297 P.91, 1931), a privacy suit that centered on an old murder case and a prostitute charged with the crime. A movie was made about the case and the prostitute (who had been acquited) was named. She sued.

From another California privacy case involving public records, Briscoe v Reader's Digest Ass'n (1971), California Supreme Court Justice Raymond E. Peters said: "In a nation built upon the free dissemination of ideas, it is always difficult to declare that something may not be published. . .But the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy. The goals sought by each other may be achieved with a minimum of intrusion on the other." (despite those words from Justice Peters, Briscoe wound up losing his action against Reader's Digest)

It is really impossible to determine if Privacy747 has any, or will have any, sort of privacy action against her ex-husband. The facts must be private enough, the injury has to be severe enough, and the publication objectionable enough to warrant not only the high costs of a suit and the additional publicity that will be given the private facts, but also to be successful in an action.



(thanks for the nice words, Silverplum )

 

[tranquility]

Generally the existence of a public record precludes any recovery for invasion of privacy, regardless of the embarrassment additional attention to the public record may cause. But generally is not always.

However, see also:
Cox Broadcasting Corp. V. Cohn 420 U.S. 469:
(From the syllabus)

Appellant reporter, employed by a television station owned by appellant broadcasting company, during a news report of a rape case, broadcast the deceased rape victim's name, which he had obtained from the indictments, which were public records available for inspection. The victim's father, appellee, brought a damages action against appellants in reliance on a Georgia statute making it a misdemeanor to broadcast a rape victim's name, claiming that his right to privacy had been invaded by the broadcast of his daughter's name. The trial court, rejecting appellants' claims that the broadcast was privileged under the First and Fourteenth Amendments, held that the Georgia statute gave a civil remedy to those injured by its violation and granted summary judgment for appellee. On appeal, the Georgia Supreme Court initially held that, while the trial court erred in construing the Georgia statute to extend a cause of action for invasion of privacy, the complaint stated a cause of action for common law invasion of privacy, and that the First and Fourteenth Amendments did not, as a matter of law, require judgment for appellants. On a motion for rehearing, appellants contended that a rape victim's name was a matter of public interest, and hence could be published with impunity, but the Supreme Court denied the motion on the ground that the statute declared a state policy that a rape victim's name was not a matter of public concern, and sustained the statute as a legitimate limitation on the First Amendment's freedom of expression.

Holding (in part):

2. The State may not, consistently with the First and Fourteenth Amendments, impose sanctions on the accurate publication of a rape victim's name obtained from judicial records that are maintained in connection with a public prosecution and that themselves are open to public inspection. Here, under circumstances where appellant reporter based his televised report upon notes taken during court proceedings and obtained the rape victim's name from official court documents open to public inspection, the protection of freedom of the press provided by the First and Fourteenth Amendments bars Georgia from making appellants' broadcast the basis of civil liability in a cause of action for invasion of privacy that penalizes pure expression -- the content of a publication. Pp. 420 U. S. 487-497.

 

[Bali Hai]

While I agree with this in essense, it is not always possible for a person to keep some private information from others, and this could be especially the case in a marital relationship.

Certainly invasion of privacy/publication of private fact suits should not be considered unless the publicity given the private facts has disrupted one's life in a major way (ie, loss of a job, loss of relationships, loss of esteem in the community).

Generally the existence of a public record precludes any recovery for invasion of privacy, regardless of the embarrassment additional attention to the public record may cause. But generally is not always.

In one 1983 case out of Privacy747's California, the Oakland Tribune was sued for invasion of privacy after publishing a story about a college student who had become the first woman student body president in the history of the college. The story that was published could have been a feel-good story about the accomplishments of this young woman but, instead, the Tribune located her birth certificate (a public record) that showed the college woman had been born male. She became legally female through a sex-change operation. And it was on this fact that the Tribune concentrated their story. She sued. A jury awarded the woman $775,000 and, as newspapers are wont to do, the Tribune appealed the decision. The case was finally settled out of court, with the Tribune paying the woman around $300,000. See Diaz v Oakland Tribune, Inc, 139 Cal App.3d 118, 188 Cal Rptr. 762, 766 (1983), 9 Med.L.Rptr, 1121, 1122.

There have also been successful publication of private facts suits over publicity given to forced sterilization victims and rape victims.

From the Restatement (Second) of Torts Section 652D: "The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake. . ."

California has, as Privacy747 noted, strong privacy laws. California is also home to what is regarded as the leading decision in privacy law (Melvin v Reid, 112 Cal App 285, 297 P.91, 1931), a privacy suit that centered on an old murder case and a prostitute charged with the crime. A movie was made about the case and the prostitute (who had been acquited) was named. She sued.

From another California privacy case involving public records, Briscoe v Reader's Digest Ass'n (1971), California Supreme Court Justice Raymond E. Peters said: "In a nation built upon the free dissemination of ideas, it is always difficult to declare that something may not be published. . .But the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy. The goals sought by each other may be achieved with a minimum of intrusion on the other." (despite those words from Justice Peters, Briscoe wound up losing his action against Reader's Digest)

It is really impossible to determine if Privacy747 has any, or will have any, sort of privacy action against her ex-husband. The facts must be private enough, the injury has to be severe enough, and the publication objectionable enough to warrant not only the high costs of a suit and the additional publicity that will be given the private facts, but also to be successful in an action.



(thanks for the nice words, Silverplum )

You mean HE legally became a female. If he was originally a she, the birth certificate would have reflected that.

 

[quincy]

Yes, the student was born a male and became a female. I am not sure that birth certificates were routinely changed to reflect a change in sex at that time, though. Perhaps the Diaz case helped to highlight the need for such change? I don't know.

tranquility, the case you cited out of Georgia is one of many. There are far, far, far more cases that conclude there is no privacy invasion when information originating from a public record is published. In addition, it is pretty darn difficult for a private individual to win any legal action against the media.

That said, invasion of privacy/public facts cases are common enough that the media will usually hesitate a bit before publishing any information dredged up from OLD public records.

 

[tranquility]

Yes, the student was born a male and became a female. I am not sure that birth certificates were routinely changed to reflect a change in sex at that time, though. Perhaps the Diaz case helped to highlight the need for such change? I don't know.

tranquility, the case you cited out of Georgia is one of many. There are far, far, far more cases that conclude there is no privacy invasion when information originating from a public record is published. In addition, it is pretty darn difficult for a private individual to win any legal action against the media.

That said, invasion of privacy/public facts cases are common enough that the media will usually hesitate a bit before publishing any information dredged up from OLD public records.

Actually, the case cited was a U.S. Supreme Court case. But, I agree with you and believe it is "pretty darn difficult" if not a violation of the first and fourteenth amendments if the information is from a public record that is publicly accessible. While some have mentioned (Like the second restatement.) regarding old cases and the like, I don't think they have tested the Supremes yet.

 

[quincy]

The Cox Broadcasting case arose out of a Georgia incident, where a young girl was gang-raped and died, and a reporter for Cox broadcast her identity, violating a Georgia state law forbidding the publication of the identities of rape victims. The United States Supreme Court said that the media cannot be held liable for publishing true information if the information was obtained in a legal manner.

This was more a decision on the Georgia law prohibiting the press from publishing rape victims' names, which limited the right to free expression, than a decision on invasion of privacy, although it can be seen as both.

Media organizations have, as a whole, decided on their own not to publish rape victims' names, not because there is any law now that prohibits them from doing so, but solely for ethical and moral reasons.

There was a fairly recent case out of Florida where it was decided (and upheld on appeal) that the publication of a mug shot was an invasion of privacy (publication of private facts), even though most states consider mug shots a public record. The judge was Paul Huck and I suppose I can look up the actual cite if necessary - it is cited in one of the "Florida arrest.com/mug shot" threads.

 

[tranquility]

The Cox Broadcasting case arose out of a Georgia incident, where a young girl was gang-raped and died, and a reporter for Cox broadcast her identity, violating a Georgia state law forbidding the publication of the identities of rape victims. The United States Supreme Court said that the media cannot be held liable for publishing true information if the information was obtained in a legal manner.

This was more a decision on the Georgia law prohibiting the press from publishing rape victims' names, which limited the right to free expression, than a decision on invasion of privacy, although it can be seen as both.

Media organizations have, as a whole, decided on their own not to publish rape victims' names, not because there is a law that prohibits them from doing so, but solely for ethical and moral reasons.

There was a fairly recent case out of Florida where it was decided (and upheld on appeal) that the publication of a mug shot was an invasion of privacy (publication of private facts), even though most states consider mug shots a public record. The judge was Paul Huck and I suppose I can look up the actual cite if necessary - it is cited in one of the "Florida arrest.com/mug shot" threads.

Once again, the Supreme Court case held (in part):

2. The State may not, consistently with the First and Fourteenth Amendments, impose sanctions on the accurate publication of a rape victim's name obtained from judicial records that are maintained in connection with a public prosecution and that themselves are open to public inspection. Here, under circumstances where appellant reporter based his televised report upon notes taken during court proceedings and obtained the rape victim's name from official court documents open to public inspection, the protection of freedom of the press provided by the First and Fourteenth Amendments bars Georgia from making appellants' broadcast the basis of civil liability in a cause of action for invasion of privacy that penalizes pure expression -- the content of a publication. Pp. 420 U. S. 487-497.

Georgia is not relevant. The State. They meant ANY state. That a court of original jurisdiction tries to distinguish is the essence of jurisprudence in the U.S. In the actual holding, rather than the syllabus it does point out to "press" rather than just speech and perhaps that is how the court tried to distinguish the case you mention from the Supremes. Also, perhaps it was distinguished by "court" rather than mere "public". I don't know. I've heard of the case you mention but have not read the decision to know how they distinguish.

We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. [Footnote 26] Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. In this instance, as in others, reliance must rest upon the judgment of those who decide what to publish or broadcast. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. at 418 U. S. 258.

 

[quincy]

I want to note that the cases tranquility and I are discussing are invasion of privacy/publication of private fact suits involving the media. It is far more difficult for a private person to be successful with an invasion of privacy action filed against the media than it would be for a private person to be successful with an invasion of privacy action filed against another private person.

The press is afforded greater protection and more defenses to an invasion of privacy suit than an ordinary individual is who decides to reveal private facts about another on, say, Facebook.

The Cox decision cited by tranquility was followed by a flurry of similar suits, among them Smith v Daily Mail Publishing Co out of West Virginia, 1979. Chief Justice Burger declared the West Virginia statute, prohibiting the publication of juvenile offenders' names, unconstitutional. He said: "At issue is simply the power of a state to punish the truthful publication of an alleged juvenile delinquent's name lawfully obtained by a newspaper. The asserted state interest cannot justify the statute's imposition of criminal sanctions on this type of publication."

tranquility, the mug shot decision I mentioned earlier is Karantsalis v US Department of Justice, 38 Media L.Rep 1240, S.D. Fla, 2009. Florida U.S. District Court Judge Paul Huck said that the publication of mug shots was an invasion of privacy. His decision was upheld on appeal. The 11th Circuit Court of Appeals decision can be accessed at: http://caselaw.findlaw.com/us-11th-circuit/1559304.html.