Case Against Netflix Proceeds Based on Invasion of Privacy
Documentary filmmakers, unscripted television producers and other publishers are all rightfully concerned about the accuracy of their reporting, lest they face a claim of defamation based on a falsehood. But another related concern is very much at play; in most states, a publisher can be held liable for invading the privacy of someone who is the focus of a story—even if the published information is entirely truthful and accurate. The June 6, 2023 federal decision from the Southern District of Indiana, Doe v. Netflix, Inc., No. 122CV01281TWPMJD, 2023 WL 3848379 (S.D. Ind. June 6, 2023) provides a case study for this concern.
In this case, three plaintiffs (all “Does”), allege that defendants (Netflix and the film’s producers) disclosed highly sensitive and private information about the plaintiffs to millions of people without their consent. The subject documentary, “Our Father,” told the story of a fertility specialist, Dr. Donald Cline, who unbeknownst to his female patients, inseminated many of them with his own semen, fathering approximately 94 children—called the “Secret Children” in the Court’s opinion. The discovery of this wrongdoing came through online DNA testing services. Ultimately, a password protected account was generated by some of the Secret Children, which could only be accessed by them, which revealed their identities to each other.
In 2020, the defendants contacted some of the Secret Children, after disclosure of the doctor’s misconduct had resulted in a “media frenzy.” In April 2021, the defendants sent a written statement to plaintiffs and other Secret Children, which read in part: “I know that some of you were more comfortable than others being involved…. You will not be identified (unless you’ve already given us explicit permission to do so….)” The three plaintiffs communicated to the defendants that they did not have their permission to disclose plaintiffs’ names in the documentary. However, as alleged by plaintiffs, in April 2022, the defendants shared a trailer of the documentary on their social media accounts, displaying plaintiffs’ names to millions of people. This was apparently inadvertent, because, according to the Court’s decision, plaintiffs’ names were displayed for either 1 second or nine seconds and the names and photographs of numerous “Secret Children” were blurred in the documentary itself. Plaintiffs sued under a number of theories, but the one of interest here is “public disclosure of private facts.”
Defendants moved to dismiss the case on the basis of the parties’ complaint and answer alone. In addressing the motion, the Court held that the plaintiffs’ claimed privacy tort “covers a unique harm: injuries resulting from the unauthorized disclosure of fundamentally private, yet fully true, information” (citing Restatement (Second) of Torts § 652D (1977)) and is concerned with the “propriety of stripping away the veil of privacy with which we cover the embarrassing, the shameful, the tabooed, truths about us.” The elements of the tort include the disclosure of a fact: (1) where the fact is private in nature; (2) to the public; (3) that would be highly offensive to a reasonable person; and (4) that is not of legitimate public concern. (It should be noted that the tort has not been universally accepted. Four states have failed to embrace the tort: New York, Nebraska, North Carolina and Virginia. See Abby DeMare, The Disclosure Tort in Indiana: How A Contemporary Twist Could Revive A Dormant Remedy, 54 Ind. L. Rev. 661, 671 (2021).)
In examining these elements of the tort, the Court noted that the defendants did not contest that the disclosure was made to the public nor that the disclosure would not be highly offensive to a reasonable person. Defendants did however argue that plaintiffs’ privacy claim should fail because the disclosed information was not private in nature and was of legitimate public concern.
The Court rejected both of these arguments. First, the Court found that the highly circumscribed disclosure by plaintiffs through the password protected account did not mean that the facts were no longer private; instead, plaintiffs had successfully alleged that they were entitled to a “zone of privacy” under the circumstances of the case.
Next, the Court addressed the “legitimate public concern” defense, which was based on the First Amendment to the United States Constitution and Article I, Section 9 of the Indiana Constitution. The Court noted that these constitutional provisions afford a privilege which protects disclosure of private facts that are “newsworthy,” that is, of legitimate concern to the public. However, the Court held that while the fertility doctor’s actions were of legitimate concern to the public, the identities of the victims were not. The Court allowed the case to proceed to discovery and a trial.
There are two key lessons for publishers here. First, any broadcast must be carefully vetted before publication, to avoid any inadvertent publication of private facts, as appears to have happened in the Indiana case. Second, if disclosure of private facts is to be made without a subject’s consent, the publisher must be confident that the information being disclosed is solidly newsworthy.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Mark Moore who counsels clients on employment disputes, disputes in a university setting, securities matters, intellectual property issues, and other commercial matters. Mr. Moore is admitted to practice law in New York, the United States Courts of Appeal for the Second and Third Circuits and the United States District Courts for the Southern and Eastern Districts of New York.