Claims for Invasion of Privacy in California

Generally

“The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion and our freedom to associate with the people we choose.” Am. Airlines, Inc. v. Super. Ct. (2003) 114 Cal.App.4th 881, 893.

The state Constitution expressly grants Californians a right of privacy (as well as the public’s “right of access to information concerning the public’s business”). Cal. Const. art. I, § 1, art. I, § 3(b)(1). However, this right is not absolute. This right “protects the individual’s reasonable expectation of privacy against a serious invasion.” Pioneer Electronics, USA, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.

A party asserting a right to privacy must establish three elements:

1. a legally protected privacy interest,
2. an objectively reasonable expectation of privacy in the given circumstances, and
3. a threatened intrusion that is serious.

Williams v. Super. Ct. (2017) 3 Cal.5th 531, 552 citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-40.

Once these three elements are met, the court must then balance the parties’ competing considerations for and against disclosure of the privacy-protected information. Williams, supra, 3 Cal.5th at 552. Under this balancing test, a compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. Id. at 556. However, whenever lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” Id.

Invasion of Privacy – Tort Liability

Four kinds of activities have been found to violate the constitutional right to privacy and give rise to tort liability:

1. intrusion into private matters;
2. public disclosure of private facts;
3. publicity placing a person in a false light; and
4. misappropriation of a person’s name or likeness.

Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129.

Public Records Act (PRA) Requests and Privacy Rights

Disclosure of public records has the potential to impact individual privacy. The PRA defines “public records” broadly to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1016-17. Public records can include “personal details about private citizens,” and disclosure may infringe upon privacy interests. Id. (Note, this does not include court records. City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 773 citing Taus v. Loftus (2007) 40 Cal.4th 683, 726.)

Disclosure of public records thus involves two fundamental yet competing interests:

1. prevention of secrecy in government; and
2. protection of individual privacy

City of San Jose v. Super. Ct. (1999) 74 Cal.App.4th 1008, 1016-17.

This exemption requires the court to “balance two competing interests, both of which the [PRA] seeks to protect—the public’s interest in disclosure and the individual’s interest in personal privacy.” Int’l Federation (2007) 42 Cal.4th 319, 329-30; see also Los Angeles Unified School Dist. v. Super. Ct. (2014) 228 Cal.App.4th 222, 240.

Examples

Medical Records

Civil Code § 56.10 provides that “[a] provider of health care, health care service plan, or contractor shall not disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).” Civ. Code Sec. 56.10(a). Exceptions to subsection (a) include a request by the patient or the patient’s representative pursuant to Chapter 1 of Part 1 of Division 106 of the Health and Safety Code (commencing with § 123100). Id., Sec. 56.10(b)(7).

A disclosure under § 56.10(a) requires an affirmative communicative act—i.e., an affirmative sharing of medical information with another person or entity. Sutter Health v. Super. Ct. (2014) 227 Cal.App.4th 1546, 1555-56.

Cell Phone Records

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ Riley v. California (2014) 573 U.S. 373, 403. The fact that technology now allows an individual to carry such information in his hand does not make the information less worthy of the protection for which the Founders fought.” Id; see also In re Malik J. (2015) 240 Cal. App. 4th 896, 902 (inspection of electronic devices present “significant privacy implications.”).

The party seeking disclosure must show a particularized need for the confidential information sought. The information must be directly relevant to a party’s cause of action and essential to determining the truth of the matters in dispute. Discovery will not be ordered if the information sought is available from other sources or through less intrusive means. Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859-861.

“While the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of associational privacy, the scope of such waiver must be narrowly rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits... [A]n implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.” Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842. The burden is on the party seeking the constitutionally protected information to establish direct relevance. Harris v. Super. Ct. (1992) 3 Cal. App. 4th 661, 665.