Facebook as a Public Forum
When we think of logging onto Facebook, we generally associate it with a positive experience. The social network keeps us coming back multiple times a day to catch the latest updates, and we even allow applications to run on our phones to give real-time notifications of account activity. All of this is in the name of connecting billions of users with their friends, family, and colleagues worldwide. Facebook, however, is still largely a public forum and, as such, at risk of being abused by people as a soapbox for statements that can injure and violate the privacy of others. In recent years, Facebook privacy settings have become increasingly important in determining to what extent privacy invading statements were publicized. Even statements set to “friends only” can reach hundreds of users and be shared in seconds. Depending largely on the settings of the post and profile, as well as the number of “friends” the person has on their Facebook page, the private information could give rise to an invasion of privacy claim in Colorado called “public disclosure of private facts.”
Public Disclosure of Private Facts in Colorado
A claim for public disclosure of private facts in Colorado occurs when someone discloses private facts to the public, the disclosure of which would be highly offensive to a reasonable person and caused the victim damages. Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 377 (Colo. 1997). The private facts disclosed cannot be of legitimate concern to the public and the person disclosing the information must have acted with reckless disregard as to the private nature of the facts. Id. In other words, the person disclosing either knew the facts were intended to be kept private or they were aware of a high likelihood they were meant to be kept private, but disclosed the information anyways. Id. at 379. The Colorado Supreme Court first recognized a claim for public disclosure of private facts in Robert C. Ozer, P.C. v. Borquez. The case concerned an attorney who had not yet come out about his homosexuality to his law firm and that received news while at work that his partner was diagnosed with AIDS. Id. at 374. After being told by his physician to be tested immediately for HIV, the attorney determined he could not effectively work over the next day and explained to the President and shareholder of the law firm in confidence his reasons for needing to take leave from work, in turn revealing his sexual orientation. Id. The attorney asked the President of the law firm to keep the information he was about to disclose confidential, but he made no reply. Id. After the conversation, the President of the law firm told his wife and several employees at the firm. Id. One week after the disclosure, the attorney was fired. Id. While the Colorado Supreme Court ultimately ruled that the Court of Appeals properly recognized a tort for public disclosure of private facts, the case was remanded back to the Court of Appeals because the jury was given the wrong instructions for the definition of public disclosure. Id. at 379. In order for a disclosure to be sufficiently public, it must be made to the “public in general or to a large number of persons”(not just a third-party other than the victim).Id. at 371. There is no threshold number for what constitutes a “large number of persons,” and the circumstances of the case must be taken into account when determining whether a disclosure of private facts was sufficiently public. Id. However, a “large number of persons” could be as small as twenty, if it’s a select, targeted group for the communication. See id. at 378 (recognizing the holding inKinsey v. Macur, 165 Cal. Rptr. 608, 611 (Cal. Ct. App. 1980) that a defendant’s dissemination of copies of a letter to a select group of twenty people constituted public disclosure).
Public Disclosure of Private Facts on Facebook
In light of the seminal court ruling in Bourquez, whether the disclosure of private facts on Facebook gives rise to a viable claims varies from cases to case. The disclosure must meet all elements of a public disclosure of private facts claim, including being highly offensive in nature, and being sufficiently public. For example, disclosing someone’s private medical information or social security number on Facebook might be highly offensive to a reasonable person, but revealing that someone is in the midst an affair might not be in consideration of our regular exposure to such scandals in TMZ and daytime television shows. The same might be true of certain categories of private medical information. There are different social repercussions and emotional distress over the public knowing you once had Bird Flu versus AIDs or a sexually transmitted disease. See Doe v. High-Tech Institute, Inc., 972 P.2d 1060, 1070 (Colo. App. 1998). Because of the variety of settings available on Facebook, probably the most important factor in determining whether a Facebook post disclosing private information creates a viable claim is whether the post meets the publicity requirement. Posting as “public” and not “friends only” would likely be found to be communicated to the public at large based on the sheer nature of the setting. If a post is not set to “public,” it would then need to be “communicated to a large number of persons” per the requirements of Borquez. This depends on several factors, including how many Facebook friends the post was made available to, and whether the author of the post used a “custom” setting where only one or two people were allowed to view it. However, the select group of twenty recipients cited in Borquez as meeting the publicity requirement is a relatively small number, especially when the average adult Facebook user has 338 friends. Borquez, 940 P.2d 371 at 378. Furthermore, with recent updates to Facebook, when you share a statement on someone else’s page, your friends automatically see in their newsfeed the statement you shared (unless the setting is manually removed), creating a far larger audience for the information than originally anticipated.
Recourse and Remedies for Victims of Public Disclosure of Private Facts on Facebook
Victims of a public disclosures of private facts on Facebook can recover damages in four areas: (1) general damages for harm to the victim’s interest in privacy resulting from the invasion; (2) damages for mental suffering experience by the victim; (3) special damages for actual financial losses; and (4) nominal damages if no other damages are proven. Doe, 972 P.2d at 1066. Courts in Colorado allow for the recovery of substantial money amounts for emotional distress or personal humiliation, as well as mental suffering, that the victim proves to have actually suffered. Id. This can include anxiety, depression, humiliation, shame, and embarrassment. However, the emotional distress or personal humiliation must be the kind that a reasonable person would experience as a result of such an invasion of privacy. Id. Overly sensitive and irrational reactions will not be included in the calculation of damages. Developing anxiety and sleepless nights over someone revealing you had your appendix removed is likely not going to be treated as a reasonable reaction to the disclosure of that category of private medical information. At the same time, developing the same over someone revealing on Facebook your sex change operation (and coinciding name change) that you had not yet disclosed to your work would likely find sympathy from a jury of your peers, as they would likely respond in a similar manner to such an invasion. Although not necessary to plead or prove, special damages, or actual financial losses, can be awarded as well. This might include lost wages from a job you were fired from after your boss found this information on Facebook and no longer wanted someone of your “character.” This is a particularly real threat in at-will employment states. Nominal damages may also be awarded when there is no evidence of substantial harm, but a violation of your legal rights occurred nonetheless. These amounts are minimal, and often limited to a few dollars. Should you find that someone’s public disclosure of private facts about you on Facebook meets the elements outlined above, recourse is likely available in a Colorado court of law. However, you have exactly two years from the date of the posting of the private information, or from the date you discovered the posting, to bring the claim before a court. Otherwise, you forfeit your ability to hold the person liable for violating your privacy under the law.
By Cassandra Kirsch, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.