TO: Kate Dobson
FROM: Andrew Wilson, Eric Webster
DATE: 11/1/00
RE: Nominsky / Illegal Wiretap and Invasion of Privacy


ISSUES


I. Has a person who records a telephone conversation without the other party's consent, and then discloses the contents of the tapes, violated the Maryland Wiretap Act, and if so, what civil damages are available?

II. Has a person who divulges details about another's sex affair with a major public official, to persons she knows to be affiliated with media outlets and who subsequently disclose the information to the public, violated that person's right to privacy?


BRIEF ANSWER

I. Yes, and civil damages are available, but only if the taping was "wilful". The Maryland Wiretap Act forbids "wilful" taping of telephone conversations unless both parties consent to the taping. To show wilfulness, a plaintiff must prove that the person who taped the conversations knew it was illegal to do so, intent is not enough.

II. Yes. Although the official's affair may be in the legitimate public interest, graphic and explicit details are not.


DISCUSSION

I. Maryland Wiretap

It is unlikely that Lipp will be found in violation of Md. Code Ann. § 10-401 et seq. (1998) Wiretapping and Electronic Surveillance ("Maryland Wiretap Act"). Civil damages can be awarded under § 10-410 if it can be shown that § 10-402 was violated. Although it is possible to show all other elements of this case, all other elements hinge on whether the interception was "wilful".

This discussion will focus on violation of Maryland Wiretap Act by "'willful' interception". "[I]t is unlawful for any person to: (1) Wilfully intercept . . . any wire, oral, or electronic communication; . . . " § 10-402(a). There will also be a discussion as to whether consent to taping was involved. Most of the discussion explores what "willful" means in Maryland, which is key to this case.

An intercept occured. "'Intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." § 10-401(3).  A telephone conversation is a "wire communication" as defined within the Maryland Wiretap Act. "'Wire communication' means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by aid of wire, cable, or other like connection. . . ." § 10-401(1)(i).  The facts indicate that Lipp "intercepted" her telephone conversations with Nominsky by taping them with a tape recorder.

   There was no prior consent of all parties. In Maryland, it is permissible to tape a telephone conversation only if all parties to the conversation consent.  "It is lawful under this subtitle for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception...."  § 10-402(c)(3). Nominsky did not consent to the taping, so the taping was not lawful.

It is likely that Lipp was not "willful" in her interception. Again, if the interception was not willful, then the Maryland Wiretap Act was not violated. Benford v. American Broadcasting Co ., 649 F.Supp. 9, 10 (D. Md. 1986) was the first case to interpret the meaning of the term "wilfully" in the context of the Maryland Wiretap Act. The Benford  court adopted a definition of "wilfulness" from the federal wiretapping laws, upon which the Maryland law is based. The court required the plaintiff to show that the defendant knowingly broke the law.

In order for a person to violate the Maryland Wiretap Act, she must "wilfully" intercept a wire communication with another individual, or disclose a communication she knows was illegally intercepted. The court states, "The term 'wilfully,' when used in the criminal context, means more than intentional or voluntary.  It denotes either an intentional violation or a reckless disregard of a known legal duty." Benford , 649 F.Supp. 10. Maryland courts have held that it is incorrect to say that ignorance of the law is no excuse, or to say that the word "wilful" means "intentional" in this context.  Hawes v. Carberry , 653 A.2d 479 (Md. Ct. Spec. App. 1995).  In Hawes , the plaintiff failed to prove that the defendant had "wilfully intercepted" their conversation, the plaintiff was only able to show intent to intercept.

In Hawes , a Virginia attorney was not assumed to have any knowledge of Maryland Wiretap Laws, so it is unlikely that a court will find that Lipp, a government employee with no legal training, was aware of the law. However, if other evidence can be found to show that Lipp was aware that it was illegal to tape the conversations, Nominsky will prevail.

In Hawes , the appellant was a member of the Virginia Bar and was attempting to enforce a judgment against appellees.  When he visited their Maryland home, he tape recorded (i.e., intercepted) their conversation without appellees' knowledge or consent.  The trial court ruled that this was a violation of the Wiretap Act, but the appellate court overturned the decision. The court stated, "While appellees proved that appellant was a Virginia lawyer, it could not be legitimately inferred from this fact that he knew the wiretap law of all 50 states or even that he knew the relevant law in Maryland, or, for that matter, any other jurisdiction in the Washington metropolitan area."  Id .

If Nominsky proves that Lipp was aware that her actions were against the law, Nominsky can bring a civil action against Lipp, because " § 10-410 establishes civil liability for the violation of Section 10-402 and authorizes a private cause of action to recover damages." Benford v. American Broadcasting Co ., 649 F.Supp. 9, 10 (D. Md. 1986). Nominsky can recover actual damages of not less than $100 a day for each day of violation or $1,000, whichever is
higher, 10-410(a)(1), and reasonable attorney's fees and costs of litigation. § 10-410(a)(2).  If she can show that Lipp acted out of malice, she can also recover punitive damages. § § 10-410(a)(3).


II. Invasion of Privacy

Lipp is likely liable for damages to Nominsky. Nominsky has a right not to have her private affairs made known to the public. Carr v. Watkins , 177 A.2d 842 (1962). Since Carr , the court has adopted the Restatement (Second) of Torts definition that unreasonable publicity given to a persons private life is an invasion of privacy. Arroyo v. Rosen , 648 A.2d 1074 (Md. Ct. Spec. App. 1994) This Restatement identifies four varieties of invasion of privacy: (a) Unreasonable intrusion upon the seclusion of another ; (b) Appropriation of the other's name or likeness ; (c) Unreasonable publicity given to the other's private life ; [and] (d) Publicity which unreasonably places the other in a false light before the public. Restatement (Second) of Torts § 652A. According to § 652D of the Restatement,

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public."

Before addressing the nature of subject matter disclosed, we must determine what constitutes "publicity" and "private life."

Lipp's actions gave "publicity" to Nominsky's life. A matter is made public when a person communicates it to people who are certain to make it known to the public at large. Arroyo v. Rosen, 102 Md. App. 101; 648 A. 2d 1074; 1994 Md. App. LEXIS 149. In Arroyo , a doctor was found to have invaded another's privacy when she disclosed classified information to a small group of people, including a reporter for a general circulation newspaper. The court reasoned that telling something to a reporter was tantamount to making it public because it was substantially certain to become public knowledge. Id , at 1081. While § 652D, comment a, of the Restatement states "it is not an invasion of privacy to communicate a fact concerning the plaintiff's life to a single person or even a small group of persons," it continues "'Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. It is communication which reaches, or is sure to reach the public . The distinction in, other words, is one between private and public communication." A person can therefore "publicize" a matter even by relating the information to two or three individuals, provided one of them is sure to make the matter public. Lipp would be incorrect to assert that telling two or three people is not enought to constitute publicity: when she divulged information to individuals she knew to be affiliated with the media, she was certain that the information would become public once she shared it.

Nominksy can show that the information divulged was both private and highly offensive. § 652D, supra. Comment b from the Restatement is explicit: "sexual relations, for example, are normally entirely private matters, as are disgraceful or humiliating illnesses." Although "offensive" remains undefined in the Restatement and in Maryland case law, we can presume that any reasonable person would be offended to have details of their sex life made public; comment b seems to confirm this view. Lipp's publicizing of sexual matters constitutes making public details of Nominsky's private life.

Details of Nominsky's sex life are not in the legitimate interest of the public. By giving publicity to the specifics of Nominsky's sex life (which are clearly not in the public interest) as well as to the fact that the President was engaged in an extramarital affair (which might be in the public interest), Lipp revealed more than the law allows.

The proper balance of privacy and freedom of the press, is that "every private fact disclosed must have some substantial relevance to a matter of legitimate public interest." Gilbert v. Medical Economics 665 G.2d 305 (10th Cir. 1981). In Gilbert , a medical magazine published an article about the failure of physicians and hospitals to adequately police themselves. To illustrate the point, the writer described the problems of Dr. Gilbert, who faced several malpractice claims, using her name and photograph. The writer also included details about Gilbert's psychiatric and family problems that, arguably, led to her carelessness and eventual errors with patients. Gilbert claimed that these details were private information that were not of legitimate public concern. Pointing to Virgil , Gilbert argued that although the story itself was newsworthy, the private details were not. The court, however, sought to strike a balance between privacy rights and editorial discretion. "The first amendment [sic.] sometimes protects what would otherwise be an actionable invasion of privacy where a publication of the media is involved." Id. at 307. The court then reasoned that although an editor must be given some discretion about what details to include in the article, protection "ceases to operate only when an editor abuses his broad discretion to publish matters that are in the legitimate public interest." Id. at 308.

The President's adulterous affair may have been within the sphere protected by the First Amendment, but details of the nature that Lipp revealed are not, since they lack substantial relevance to the legitimate public interest. The court also noted that "[e]ven where certain matters are clearly within the protected sphere of legitimate public interest, some private facts about an individual may lie outside that sphere." Id.

There is one potential weakness in this argument. Lipp will argue that the details she revealed were "substantially relevant" to the newsworthy topic of the President's adulterous affair. This determination may include a consideration of whether the details added authenticity or urgency to the story. Specifically, she will argue that explicit details of the sexual acts between Nominsky and the President are equivalent to the publication, in Gilbert (supra), of a doctor's name, picture, and private history. The Gilbert court ruled that plaintiff's "name, photograph, and psychiatric and medical problems are substantially relevant to the newsworthy topic of policing the medical profession" because they added an aura of authenticity and urgency that might otherwise be lacking from the story and because there was a reasonable connection between the problems in Dr. Gilbert's personal and professional lives." Id. at 305.

In Gilbert, however, the public was in danger and had a right to know about this doctor's history of malpractice and problems that might contribute to endangering the public. As the Gilbert court declared, "under these circumstances [i.e. Gilbert's patients and colleagues might not otherwise learn of the risks] the public has a very strong and immediate legitimate interest." Id. at 309. While specifics of Nominsky's activity's with the President may have added an "aura of authenticity" to Lipp's story, there was no "reasonable connection" between the details revealed and the topic in the "immediate legitimate" public interest.

The public was not entitled to hear details of the private affair between Nominsky and the President. "The line is to be drawn when the publicity ceases to be the giving to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say he had no concern " Restatement (Second) of Torts § 652D comment h. Though the public may have been entitled to know of the President's affair, the explicit details revealed fall within the ordinary meaning of "morbid and sensational" and a "reasonable member of the public, with decent standards" would likely say that he had no concern with them.



CONCLUSION


I think we will be more successful in pursuing a civil suit for invasion of privacy than attempting a judgment under the Maryland Wiretap Act.

While it is clearly the case that Lipp intercepted her telephone conversations with Nominsky, we have no evidence that suggests that she knew her actions were in violation the Maryland Wiretap Act, and therefore "wilfull" according to state law. I recommend against bringing suit against Nominsky unless new evidence is found that suggests that Lipp knew that she was violating the Maryland Wiretap Act.

All the requirements for invasion of privacy have been met; however, the exception the law makes for the "legitimate public interest" is the weakest part of our case. Lipp will have to prove that the public was somehow even remotely endangered by the sexual relationship between Nominsky and the President, while we will have to establish that it was a strictly personal matter that Lipp was exposing to public view. Though the story of the President's infidelty may newsworthy, graphic and explicit details of Nominsky's private life are not. I think a jury will find the same to be true, and will secure a judgment in our favor on this issue.