Whether True or False—It’s None of Your Business

Blogger Latasha Transrina Kebe has a strange fixation with singer Cardi B and publicizing the fact that Cardi B…has herpes?  Needless to say, Cardi B was less than thrilled about these comments and brought a lawsuit in Georgia stating claims for defamation and false light.  As both of these causes of action require that the information conveyed be false, we now find ourselves in the bizarre, but predictable, point in the litigation where we must determine whether Cardi B does, in fact, have herpes.  At first glance, this case has all of the trappings of your run-of-the-mill defamation case, but it doesn’t make sense to me that her legal strategy wouldn’t include an alternative argument of a different privacy tort.

There are four common law invasion of privacy torts: right of publicity, intrusion upon seclusion, false light, and public disclosure of private facts.  To state a cause of action for publication of private facts in Georgia, the plaintiff must show that: (1) the disclosure is public; (2) the facts disclosed are private, secluded or secret facts and not public ones; and (3) the matter made public is offensive and objectionable to a reasonable person of ordinary sensibilities under the circumstances.

In this day and age, we tend to get around claims of publication of private facts by arguing that the information disclosed is newsworthy and therefore not a private matter.  If you’ve ever wondered how tabloids exists, this is part of the answer (the other part is the actual malice standard, but that’s a different topic).  In our celebrity-obsessed culture, we crave and demand unfettered access to the lives of our public figures.  The public certainly has a right to know if a Supreme Court Justice has a neurodegenerative disease or to inquire of the cardiovascular health of presidential candidate, but herpes?  I draw the line there.

To me, the most bizarre aspect of this case has nothing to do with the herpes.  I don’t understand why Cardi B didn’t allege that Kebe’s incessant discussion of herpes was injurious and tortious, regardless of whether of not Cardi B actually has herpes.  The fact that the judge in this case is ordering the Center for Women’s Pelvic Health at UCLA to disclose “[a]ny and all medical records within your possession related solely to the testing for Herpes” is offensive.  The fact that the court has to look to a medical facility—an area with some of the most stringent privacy requirements—is proof that these are secluded facts.  In any other circumstance, I would absolutely love to hear some (white male) attorney try to argue why non-public information related to the pelvic health of a woman of color is a matter of public interest, but Cardi B kinda forced this outcome on herself by limiting her theory to defamation.  Sad but true, the truth or falsity of this statement is relevant to her claim.  I just hope that the next woman knows that we believe you when you say you don’t have herpes, but you also don’t have to suffer the indignity of proving that to a court.  It’s none of our business.

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