Back in the summer of 2004, a clerk on Capitol Hill blogged about her sexual exploits on a blog called Washingtonienne. A very interesting article in the Washington Post Magazine describes what happened:
The instant message blinked on the computer at Jessica Cutler’s desk in the Russell Senate Office Building. “Oh my God, you’re famous.” Before she could form the thought — “famous, cool” — or puzzle how she, a lowly mail clerk, had escaped obscurity, a second instant message popped up on her screen. Startled, Jessica recalls, she began to curse.
“Your blog is on Wonkette,” the message said.
Jessica’s blog (short for “Web log”) was the online diary she had been posting anonymously to amuse herself and her closest girlfriends. In it, she detailed the peccadilloes of the men she said were her six current sexual partners, including a married Bush administration official who met her in hotel rooms and gave her envelopes of cash; a senator’s staff member who helped hire her, then later bedded her; and another man who liked to spank and be spanked.
Wonkette is a popular online gossip column that was read by lots of Jessica’s friends and Capitol Hill co-workers, including some of the men in her blog.
The messages warning Jessica that her private little joke had just gone very public came from a girlfriend over on the House side. . . .
Typing and clicking her mouse at a desperate pace, Jessica logged on to blogger.com, the electronic bulletin board where she’d posted her sexploits under the pseudonym Washingtonienne, and deleted her blog, hoping she’d blown her diary into oblivion.
But it was already too late. Now, Cutler is being sued in federal district court by one of the people she wrote about in rather graphic detail. The cause of action is the public disclosure of private facts tort, which is defined in the Restatement (Second) of Torts § 652D:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public
Some interesting issues in this suit:
- The blog was originally anonymous.The people Cutler blogged about weren’t identified. Cutler referred to the plaintiff by his initials only. Cutler was later identified as the author of the blog, and she achieved great infamy for it. She posed for Playboy and signed a book deal for a six-figure advance. But the identity of the plaintiff was still not revealed by Culter. According to the Post article:
Jessica was officially fired for misusing an office computer, but the men she wrote about kept their jobs. What they lost was their privacy. Jessica’s blog identified them only by their initials. But amateur Internet sleuths who read the blog searched electronic databases looking for likely suspects, then posted names and photographs on the Internet. Jessica still refuses to name the men publicly.
The complaint alleges that the plaintiff was still identifiable by the details and initials used. To what extent should Cutler be liable if she didn’t directly identify the defendant but gave a lot of details so that he could be identified by others?
- In order to bring the suit, the plaintiff reveals his name in the complaint.In Europe, the common practice is for such plaintiffs to proceed anonymously; in the U.S., proceeding anonymously is rare. It seems odd that in the U.S., a plaintiff must increase and exacerbate the disclosure in order to seek legal redress.
- To what extent should Cutler have a right to talk about her sexual exploits? Should she be liable under the First Amendment for speaking about the lurid details of her own life?
For those interested in the public disclosure of private facts tort, I’ve written an article, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, taking on Eugene Volokh, who contends that the public disclosure tort violates the First Amendment. I argue that the tort is valid under the First Amendment, and I justify normatively why the tort is a good thing, too. As for the Cutler case, I haven’t yet formed much of an opinion, but I’m inclined to think that the plaintiff has a good case.
Originally posted at PrawfsBlawg
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.