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

[Privacy747]

What is the name of your state (only U.S. law)? California

During my prior marriage, I disclosed highly confidential and private information to my then husband about my past. Now that we are divorced, my husband is sharing this private information with others. I know that the information is deemed privileged and confidential pursuant to Evidence Code Section 980. I also know that, in other circumstances and with other similar evidentiary privileges, there exists a private right of action (e.g., invasion of privacy) against someone who discloses private information obtained by virtue of a privileged communication. For example, patients may sue doctors and therapists for unauthorized disclosures of information obtained during a privileged communication. Likewise, clients may sue attorneys and people may sue clergy for unauthorized disclosures of privileged communications. That being said, I have not found any case law anywhere in the United States extending this private right of action to violations of the marital privilege and/or unauthorized disclosures of privileged marital communications (I also have not found any law precluding such a claim).

My question is this: Can I sue my ex-husband for disclosing our privileged marital communications to third parties? Has this been done before? Is there any case law on the subject anywhere in the US (California would be ideal)?

 

[Silverplum]

What is the name of your state (only U.S. law)? California

During my prior marriage, I disclosed highly confidential and private information to my then husband about my past. Now that we are divorced, my husband is sharing this private information with others. I know that the information is deemed privileged and confidential pursuant to Evidence Code Section 980.

Are you being prosecuted?
What about Sec. 980 makes you think it applies to regular life and not prosecution of a crime? http://www.leginfo.ca.gov/cgi-bin/displaycode?section=evid&group=00001-01000&file=980-987
What makes you think your EX husband owes you privacy?
What makes you think that Sec. 980 causes your EX husband to guard your privacy?

I also know that, in other circumstances and with other similar evidentiary privileges, there exists a private right of action (e.g., invasion of privacy) against someone who discloses private information obtained by virtue of a privileged communication. For example, patients may sue doctors and therapists for unauthorized disclosures of information obtained during a privileged communication.

Your ex was not your doctor or therapist.

Likewise, clients may sue attorneys and people may sue clergy for unauthorized disclosures of privileged communications.

Your ex was not your attorney or clergy.

That being said, I have not found any case law anywhere in the United States extending this private right of action to violations of the marital privilege and/or unauthorized disclosures of privileged marital communications (I also have not found any law precluding such a claim).

My question is this: Can I sue my ex-husband for disclosing our privileged marital communications to third parties? Has this been done before? Is there any case law on the subject anywhere in the US (California would be ideal)?

I'm not spending my Friday afternoon researching a figment.

 

[KarmasPuppy]

Duplicate post:
https://forum.freeadvice.com/libel-slander-defamation-88/can-i-sue-my-ex-husband-disclosing-our-privileged-marital-communications-584597.html

 

[Bali Hai]

What is the name of your state (only U.S. law)? California

During my prior marriage, I disclosed highly confidential and private information to my then husband about my past. Now that we are divorced, my husband is sharing this private information with others. I know that the information is deemed privileged and confidential pursuant to Evidence Code Section 980. I also know that, in other circumstances and with other similar evidentiary privileges, there exists a private right of action (e.g., invasion of privacy) against someone who discloses private information obtained by virtue of a privileged communication. For example, patients may sue doctors and therapists for unauthorized disclosures of information obtained during a privileged communication. Likewise, clients may sue attorneys and people may sue clergy for unauthorized disclosures of privileged communications. That being said, I have not found any case law anywhere in the United States extending this private right of action to violations of the marital privilege and/or unauthorized disclosures of privileged marital communications (I also have not found any law precluding such a claim).

My question is this: Can I sue my ex-husband for disclosing our privileged marital communications to third parties? Has this been done before? Is there any case law on the subject anywhere in the US (California would be ideal)?

Loose lips sink ships.

 

[Antigone*]

The short answer is: No way in haedes.

 

[quincy]

There could potentially be an invasion of privacy/publication of private facts action that could be pursued, depending on the specifics of the communication (the types of facts revealed, to whom the facts were revealed, the reactions of those to whom the facts were disclosed, etc).

The private facts disclosed must be ones that would be deemed highly offensive to a "reasonable" person, however, and be of no legitimate public concern.

Details as to the type of marital communications revealed to others might help determine if an action makes sense.

 

[Silverplum]

There could potentially be an invasion of privacy/publication of private facts action that could be pursued, depending on the specifics of the communication (the types of facts revealed, to whom the facts were revealed, the reactions of those to whom the facts were disclosed, etc).

The private facts disclosed must be ones that would be deemed highly offensive to a "reasonable" person, however, and be of no legitimate public concern.

Details as to the type of marital communications revealed to others might help determine if an action makes sense.

OP never said "publication." She said her X was telling others about what she'd told him.

Not that it matters: OP was reading this thread and left without answering any questions.

 

[quincy]

"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.

 

[Privacy747]

I apologize for having posted the same question twice. I was unsure which section was appropriate for my inquiry.

SilverPlum, I apologize for having upset you.

Quincy, thank you so much for your thoughtful response.

Are you being prosecuted?

No.

What about Sec. 980 makes you think it applies to regular life and not prosecution of a crime?

On its face, Section 980 is not limited to criminal prosecutions. Rather, as with other “privileges” set forth in Chapter 4 of Division 8 of the California Evidence Code, Section 980 deems certain types of communications “privileged,” such that they may not be disclosed absent certain enumerated exceptions. In other words, Section 980 applies to “regular life” as well as “prosecution of a crime.”

What makes you think your EX husband owes you privacy?

On its face, Section 980 survives divorce and privileged communications made during a marriage remain privileged following a divorce. Even the United States Supreme Court has held that marital communications remain privileged after a divorce. See e.g., Blau v. United States, 340 U.S. 332, 333 (U.S. 1951) (“[M]arital communications are presumptively confidential.”); Pereira v. United States, 347 U.S. 1, 6 (1954) (Marital communications remain confidential even after a divorce.).

I'm not spending my Friday afternoon researching a figment.

Nor would I expect you to. I was hoping to find someone who has actual experience with this particular issue. I was not asking anyone to do my research. I have already done plenty of research myself.

The private facts disclosed must be ones that would be deemed highly offensive to a "reasonable" person, however, and be of no legitimate public concern.

Details as to the type of marital communications revealed to others might help determine if an action makes sense.

Yes, the facts being disclosed are VERY private, the disclosure of which is HIGHLY offensive to a reasonable person, and of no legitimate public concern. I cannot reveal the precise subject matter on this public forum precisely because of how private the issues are, but suffice it to say that my claim would satisfy this element.

There could potentially be an invasion of privacy/publication of private facts action that could be pursued, depending on the specifics of the communication (the types of facts revealed, to whom the facts were revealed, the reactions of those to whom the facts were disclosed, etc).

Invasion of privacy and publication of private facts are two different torts, with different elements. The latter requires a “publication” and, fortunately, that has not occurred yet. The former does not require a publication.

California recognizes a private right of action for violation of a person’s constitutional right of privacy. See e.g., Urbaniak v. Newton, 226 Cal. App. 3d 1128, 1136-40 (1991) (“As amended in 1972, article I, section 1, includes ‘privacy’ among the inalienable rights guaranteed all citizens. ‘The constitutional provision is self-executing; hence, it confers a judicial right of action on all Californians.’ [Citations omitted]. ‘And it has been held the state privacy right protects against invasions of privacy by private citizens as well as the state.’ . . . the interests traditionally embraced by the tort of invasion of privacy now come within the protection of article 1, section 1, although the limits of the tort cause of action do not necessarily represent limits to an action taken for violation of the constitutional right. . . . While tortious invasion of privacy requires a ‘public disclosure,’ a cause of action under article I, section 1, may be based on a more extensive, if still somewhat amorphous, concept of ‘improper use of information properly obtained.’ . . . Under the test of tortious invasion of privacy, it is clearly a ‘private fact’ of which the disclosure may ‘be offensive and objectionable to a reasonable [person] of ordinary sensibilities’.”); Hill v. National Collegiate Athletic Association, 7 Cal. 4th 1, 15-40 (1994) (“Article I, section 1 of the California Constitution is an enumeration of the ‘inalienable rights’ of all Californians. ‘Privacy’ is declared to be among those rights. . . . In summary, the Privacy Initiative in article I, section 1 of the California Constitution creates a right of action against private as well as government entities. . . . Informational privacy is the core value furthered by the Privacy Initiative. “).

One of the elements of an invasion of privacy cause of action is a “legally protected privacy interest.” Id. Courts have derived this “legally protected privacy interest” from, among other things, evidentiary privileges similar to Section 980 (including evidentiary privileges found in the same Chapter as Section 980).

Given that marital communications are privileged and confidential, and may not be disclosed by either spouse, even after a divorce, I believe I have a “legally protected privacy interest” in my personal and confidential disclosures to my ex-husband, made while we were married. I further believe my ex-husband’s unauthorized disclosures of my privileged and confidential communications with him are actionable, and give rise to a claim for invasion of privacy, just as the disclosure of other privileged and confidential information creates such a claim. Unfortunately, I have been unable to locate an appellate court opinion anywhere in the United States addressing this particular issue and either upholding or rejecting such a claim. Hence my inquiry.

 

[Privacy747]

"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.

Thank you for your additional post Quincy. To date, my ex-husband's disclosures have been sufficiently limited in scope that I cannot satisfy the "publication" requirement for that particular tort. That is why I am exploring an invasion of privacy theory predicated on his improper use of my privileged communications to him.

Yes, I have considered that, to some extent, I would be required to disclose certain facts in a public court filing in order to pursue such a lawsuit. I have a few ideas for how to address this obstacle.

 

[quincy]

Invasion of privacy and publication of private facts are two different torts, with different elements. The latter requires a �publication� and, fortunately, that has not occurred yet. The former does not require a publication.

Actually, that is not correct. Publication of private facts IS an invasion of privacy tort. There are four different privacy torts recognized by most states (publication of private facts, misappropriation of a name or likeness, false light, intrusion into seclusion). The publication of private facts tort requires publication (hence the "publication" part in its name ).

California recognizes a private right of action for violation of a person�s constitutional right of privacy....
One of the elements of an invasion of privacy cause of action is a �legally protected privacy interest.�

Despite all your really nice research, Privacy747, I am afraid none of this applies to your situation - at least as described by you here.

Given that marital communications are privileged and confidential, and may not be disclosed by either spouse, even after a divorce, I believe I have a �legally protected privacy interest� in my personal and confidential disclosures to my ex-husband, made while we were married. I further believe my ex-husband�s unauthorized disclosures of my privileged and confidential communications with him are actionable, and give rise to a claim for invasion of privacy, just as the disclosure of other privileged and confidential information creates such a claim. Unfortunately, I have been unable to locate an appellate court opinion anywhere in the United States addressing this particular issue and either upholding or rejecting such a claim. Hence my inquiry.

Not all marital communications are privileged or confidential or, if revealed, can support any sort of legal action. For example, your ex can tell others that you slurp soup and slop facecream on at night. You are making the law far far broader than it really is.

But, because you are reluctant to share with us here the private facts that are the subject of your concern (and reasonably so, I might add), and if you sincerely believe you have a claim worth pursuing against your ex-husband, I would look for an attorney who can review all of the facts of your situation to see if he/she agrees that you have a claim worth pursuing.

Good luck.

First Edit: I think our posts are crossing.

Second Edit: You may wish to consider a cease and desist letter, Privacy747, drafted by an attorney and sent to your ex-husband, advising him that he should stop revealing to others your private information or else a legal action against him may be pursued. This may prevent any additional harm.

Third Edit: What the heck is up with the odd stuff appearing in the quotes?

 

[Privacy747]

Actually, that is not correct. Publication of private facts IS an invasion of privacy tort.

True, and I apologize for my prior lack of precision. The "invasion of privacy" tort I am referring to is not the "publication" theory, but rather, the one described in my citations; namely, an improper use of confidential information in violation of the constitutional right of privacy established by the California Constitution. This distinction is addressed in Urbaniak v. Newton, 226 Cal. App. 3d 1128, 1136-40 (1991): “While tortious invasion of privacy requires a ‘public disclosure,’ a cause of action under article I, section 1, may be based on a more extensive, if still somewhat amorphous, concept of ‘improper use of information properly obtained.’ . . . Under the test of tortious invasion of privacy, it is clearly a ‘private fact’ of which the disclosure may ‘be offensive and objectionable to a reasonable [person] of ordinary sensibilities’.”

Not all marital communications are privileged or confidential or, if revealed, can support any sort of legal action. For example, your ex can tell others that you slurp soup and slop facecream on at night. You are making the law far far broader than it really is.

You are absolutely correct. However, the issue I am addressing is not my ex-husband's unprotected observations of my conduct, but rather, my protected and privileged communications with my ex-husband. In other words, I communicated very private and personal information to my ex-husband, while we were married. His observations regarding my eating habits are not privileged, nor protected. There are many published cases addressing the distinction between observations and communications.

Second Edit: You may wish to consider a cease and desist letter, Privacy747, drafted by an attorney and sent to your ex-husband, advising him that he should stop revealing to others your private information or else a legal action against him may be pursued. This may prevent any additional harm.

Already done.

I am off for the evening. Thanks for your assistance. I will check back later tonight or tomorrow.

 

[quincy]

Okay.

I think if you have already contacted an attorney for the cease and desist, however, and you are convinced you have an action worth pursuing based on all your research, there is probably not much more this forum can do for you, especially since we do not have access to the facts necessary to help you (and, again, I understand the reason for your reluctance to provide these facts).

I wish you good luck with whatever it is you need luck with.

 

[Bali Hai]

Just what this society needs, more lawyers and screwed up laws to complicate everyone's life into gridlock.

If you play in mud, expect to get muddy.

 

[tranquility]

The problem with privacy torts is they become public with the lawsuit AND you need to have damages. How much, in money, has the OP been hurt? Is there really a desire to spend the tens of thousands a privacy litigation would require for an injunction against disseminating something that is now essentially public?

Besides the basic problems there are more. They key one is the facts being disclosed. Since we have no guidance, we have no idea if they are "private" or not. Being raped years ago? Probably yes. Being in porn movies? No. Of course, anything in the public record open to public inspection are prohibited from suit by the 1st and 14th amendments.