Abby DeMare

J.D., 2021, Indiana University Robert H. McKinney School of Law

B.A., 2018, Furman University

Editor’s Note: Abby’s Note was recently cited in Henry v. Community Healthcare System Community Hospital, No. 21A-CT-2150, 2022 WL 454044, at *5 (Ind. Ct. App. Feb. 15, 2022), an Indiana Court of Appeals decision written by Judge John G. Baker, regarding the tort of invasion of privacy.

The precise contours of “privacy” are all but clear. Arguably, it delineates a sphere of life dedicated to the contemplation of intimate, perhaps highly sensitive, matters. In reality, however, it seems that privacy is a matter of tangible concern, resolved and understood in relation to physical structures and dwellings. Nonetheless, breaches to intangible spheres and facets of private life are just as real, and notably, harmful. And perhaps more crucially, the intangibles—our intimate thoughts or sensitive medical information—store most, if not all, of our private information.

Fortunately, victims of intangible privacy breaches can obtain recovery in a multitude of ways. In fact, the majority of states have enacted privacy-related statutes, regulations, and many even recognize a robust class of privacy torts, one of which is the tort of public disclosure of private facts. This tort covers a unique harm: injuries resulting from the unauthorized disclosure of fundamentally private, yet fully true, information.

Superficially, imposing liability for the dissemination of true information conflicts with the First Amendment’s free speech clause. But two of the disclosure tort’s elements—“newsworthiness” and “highly offensive”—address First Amendment concerns and strike the necessary balance between protecting free speech and deterring unlawful dissemination of sensitive information. At bottom, the disclosure tort embraces the following principle: in the absence of a legitimate purpose, the unauthorized access and dissemination of an individual’s most sensitive information is not only unnecessary, but reprehensible.

In the state’s seminal disclosure case, Doe v. Methodist Hospital, the Indiana Supreme Court declined to recognize the tort—despite decades of support and recognition from the lower courts. In fact, Indiana remains one of five states that refuses to fully endorse the tort. This Note argues that Indiana must crystallize the viability of the disclosure tort and, in so doing, adopt a “publicity” element cognizant of and responsive to contemporary challenges.

Part I of this Note considers the birth of the disclosure tort by way of examining its theoretical roots. Part II dissects the disclosure tort’s four elements: private facts, publicity, highly offensive, and newsworthiness. Part III explores the viability of the disclosure tort in Indiana by way of examining Doe v. Methodist Hospital, along with pre- and post-Doe case law. After considering the existence of the disclosure tort pre- and post-Doe, Part IV will argue that Indiana must revive the disclosure tort and, in so doing, reconceptualize the tort’s “publicity” element in a way that comports with the text of the Restatement yet retains the spirit of the tort. Lastly, Part IV argues that the common law framework, as compared to a statutory scheme, is best-equipped to address disclosure-related harms.

Read Abby’s entire article here.